cta

Aggressive and Thorough Representation
in Immigration and Criminal Defense

CONSULTATION REPORT

[CLIENT NAME]

DATE: August 25, 2008
CASE: State v. [CLIENT NAME], Case No. XXXX
RE: Immigration consequences of plea, creative plea options
FROM: Kimberly J. Trupiano

Mr. [XYZ] contacted me today asking what the immigration consequences would be of pleading guilty to the crimes he has been charged with. He called from New Jersey. His telephone number was ______. He contacted his defense attorney, [criminal defense attorney], and waived confidentiality so that I can evaluate the criminal case to make recommendations for the most minimal negative immigration consequences. Mr. [XYZ] indicated that he is a legal permanent resident and wants to be eligible for naturalization down the road. I spoke with Mr. [criminal defense attorney] who indicated that they want me to try to craft a plea deal that is the most favorable for Mr. [XYZ] as to immigration consequences but that is fair and reasonable such that the State would be amenable to it. [Criminal defense attorney]‘s telephone number is ____.

The docket shows that Mr. [XYZ] was charged as follows:

Charge 1 – 76-6-202 – BURGLARY. 3rd Degree Felony

Charge 2 – 76-6-404 – THEFT. Class B Misdemeanor

Charge 3 – 76-6-106(2)(C)(D) – CRIMINAL MISCHIEF – INTENTIONAL DAMAGE. 3rd Degree Felony

Charge 4 – 76-6-106(2)(C)(D) – CRIMINAL MISCHIEF – INTENTIONAL DAMAGE. Class B Misdemeanor

I drafted the following table to show the worst possible consequences of each count if convicted individually as well as together.

Count # Charge, Utah Code Class Max sentence Immigration effects if convicted
1 Burglary, UCA 76-6-202 F3 5 yrs If sentenced (even suspended sentence) to 365 days or more = aggravated felony[1]. An aggravated felony would be deportable, (see INA § 237(a)(2)(A)(iii)), and subject Mr. [XYZ] to mandatory detention (no bail) during the pendency of his removal proceedings, (see INA § 236(c)). If he is sentenced to less than one year, this is still a CMT.[2] If Mr. [XYZ] has been in the US less than 5 years from the date of commission where the maximum sentence is one year or more he would be deportable.
2 Theft, UCA 76-6-404 Misd. B 180 days Theft under Utah law is always a CMT. If he is convicted of this CMT and the burglary (a CMT), he is deportable due to having multiple CMT convictions. See INA § 237(a)(2)(A)(ii).[3]
3 Criminal Mischief, Intentional damage, UCA 76-6-106(2)(C)(D)[4] F3 5 years Very likely not a CMT[5].
4 Criminal Mischief, Intentional damage, UCA 76-6-106(2)(C)(D) Misd. B 180 days Very likely not a CMT[6].

If Mr. [XYZ] pled guilty to all of these and were sentenced to the maximum, he would be deportable at the minimum for having multiple convictions involving crimes of moral turpitude. Hence, it is important to have him plead to either the burglary or the theft, but not both!!

I recommend the following plea deals. All of them should create a situation where Mr. [XYZ] is not rendered deportable and should be able to apply for naturalization after five (5) years. Obviously, you will want to give the prosecutor other things in exchange for this, like promising to pay a higher fine and all restitution quickly. You’ll know best based on the circumstances.

PLEA DEAL ALTERNATIVE # 1:

Count Charge, recommended amendments Original class Resolution, sentence recommendation
1 Burglary, amended to Class A Misd. F3 Recommend maximum suspended or imposed sentence of 364 days with State
2 Theft Misd. B Dismiss
3 Criminal Mischief, amended to Class A Misd. F3 No sentence recommendations required but 364 days could be helpful as a safety precaution.
4 Criminal Mischief Misd. B Dismiss

The prosecutor will end up with two convictions here, both being Class A misdemeanors. If the prosecutor wants a felony out of the deal, give the felony on the Criminal Mischief. Or, at the minimum, the burglary must include a sentencing recommendation for a maximum suspended and/or imposed sentence of 364 days. The suspended sentence cannot exceed 364 days or it will constitute an aggravated felony under immigration law.

PLEA DEAL ALTERNATIVE # 2 – – ESPECIALLY IF MR. [XYZ] HAS ARRIVED IN THE US WITHIN 5 YEARS OF COMMITTING CRIMES!:

Count Charge, recommended amendments Original class Resolution, sentence recommendation
1 Burglary F3 Dismiss
2 Theft Misd. B Plead guilty
3 Criminal Mischief F3 Plead guilty.
4 Criminal Mischief Misd. B Dismiss

Here the prosecutor ends up with two convictions, one Third Degree Felony Criminal Mischief and one Class B Misdemeanor Theft. The theft is a CMT. It is more likely than not that the criminal mischief is NOT a CMT. So he would likely not be deportable for having multiple criminal conviction involving CMTs (he would have one CMT conviction, the Theft). If he arrived in the US within five (5) years of committing these crimes, he would be deportable for a single CMT if the maximum possible sentence could be one year or more. See INA § 237(a)(2)(A)(i). Here where the maximum possible sentence for the Class B misdemeanor Theft is only 180 days jail, so long as he did not also plead to burglary, he would not be deportable, much less not inadmissible.

PLEA DEAL ALTERNATIVE # 3 – – ESPECIALLY IF MR. [XYZ] HAS ARRIVED IN THE US WITHIN 5 YEARS OF COMMITTING CRIMES!:

Count Charge, recommended amendments Original class Resolution, sentence recommendation
1 Burglary F3 Dismiss
2 Theft Misd. B Dismiss
3 Criminal Mischief F3 Plead guilty.
4 Criminal Mischief Misd. B Plead guilty.

Here the prosecutor ends up with two convictions, one Third Degree Felony Criminal Mischief and one Class B Misdemeanor Criminal Mischief. Neither one are likely to be CMTs. That is, the criminal mischief is very likely NOT a CMT. So he would not have the multiple criminal conviction problem where there are no CMTs involved. In addition, if he arrived in the US within five (5) years of committing these crimes, he would be deportable for a single CMT if the maximum possible sentence could be one year or more. See INA § 237(a)(2)(A)(i). Hence, here he has likely NO CMTs at all so he would not be made to be deportable.


[1] “Aggravated felony” is defined as a number of criminal categories and specified crimes, including any crime of theft (including the receipt of stolen property) or burglary for which the term of imprisonment is at least one year. See INA § 101(a)(43).

[2] “CMT” means “crime of moral turpitude.” He can only have one CMT on his record to be admissible into the United States. For him to be able to be admissible back into the United States we must make sure he only pleads to only one out of the two CMTs (burglary or theft). Then he will be able to invoke the protection of the Petty Crime Exception under INA § 212(a)(2)(A)(ii)(II) when entering the United States. This exception can be used only when the alien has one CMT conviction and the maximum actual sentence (which includes the suspended sentence) does not exceed 180 days and the maximum possible sentence does not exceed one year.

[3] “Multiple criminal convictions.–Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.” INA § 237(a)(2)(A)(ii).

[4] Under the statute cited in the charges, the statute describes specific intent to cause harm: “(2) A person commits criminal mischief if the person: . . . (c) intentionally damages, defaces, or destroys the property of another; or (d) recklessly or willfully shoots or propels a missile or other object at or against a motor vehicle, bus, airplane, boat, locomotive, train, railway car, or caboose, whether moving or standing.” Utah Code Ann. §§ 76-6-106(2)(c)-(d).

[5] Criminal mischief within the four corners of the Utah statute’s language would likely not be a Crime of Moral Turpitude since it does not describe a sufficiently depraved or base intent. Subsection (c) of the Statute opens the possibility for mere reckless or willful intent. Subsection (c) of the Statute expressly requires merely an intentional act, and this bland language is normally construed as too broad to evince a specifically base or depraved intent to be construed as a crime of moral turpitude. See Rodriguez-Herrera v. INS, 52 F.3d 238, 239-241 (9 Cir. 1995) (Washington State’s malicious mischief statute does not “rise to the level of either depravity or fraud that would qualify it as necessarily involving moral turpitude ” even though language states “knowingly and maliciously” where definition of malice can encompass even “pranksters with poor judgment”); see also Matter of N -, 8 I&N Dec. 466, 468 (BIA 1959) (Delaware malicious mischief statute not a crime necessarily involving moral turpitude where indictment returned did not allow determination that crime was perpetrated maliciously and wantonly rather than merely by negligence or carelessness); Matter of C-, 2 I & N Dec. 716 (BIA 1947) (“An offense involves moral turpitude only if it is inherently base, vile, or depraved. . . . The term “willfully” does not add great evil to the offense. . . .”).

Therefore, a conviction under Utah Code Ann. §§ 76-6-106(2)(c)-(d) would very likely not be a crime of moral turpitude where the intent or knowledge does not rise above any possibility of the crime’s being committed with reckless intent or less. The intent is merely intentional or “recklessly or willfully” which do not allow a determination that the crime was necessarily perpetrated maliciously and wantonly as opposed to merely by negligence or carelessness.

[6] See supra, n. 5.