Supreme Court Decides Immigration Case

Yesterday, the Supreme Court decided Mellouli v. Lynch, a case involving the removal from the United States of Moones Mellouli, a lawful permanent resident from Tunisia, based on a Kansas misdemeanor drug paraphernalia conviction for possession of a sock used to hide four tablets of the prescription drug Adderall. In the end, the Court ruled that Mr. Mellouli could not be removed from the United States on the basis of his Kansas conviction for concealing unnamed pills in his sock.

It may seem beyond belief that the United States would deport an individual who’s been living lawfully in this country since 2004 because of a few pills found in a sock. Yet, the truth is sometimes stranger than fiction. In this case, Mr. Mellouli was found to have 4 Adderall pills in a sock. He was eventually convicted of possession of drug paraphernalia. More importantly, the charging documents and the plea agreement never mentioned the kind of drug that was involved. This proved to be crucial because there was no evidence on the record as to whether the drug in question was a controlled substance under federal law.

Because this was Mr. Mellouli’s second drug conviction, the United States sought to remove him. Under immigration law,  the deportation/removal statutes require a drug conviction under state law must “relate to a controlled substance (as defined) by” federal law. This requirement is important because some states ban substances in addition to those regulated by federal law. (Kansas, for example, regulates at least nine substances not regulated by federal law.) The charging document and plea agreement in Mellouli’s criminal case failed to identify the specific controlled substance related to the paraphernalia that served as the basis for his conviction and thus did not make it clear that the substance was controlled by federal law. Nonetheless, the immigration court and Board of Immigration Appeals (BIA), with the approval of the court of appeals, ordered Mellouli deported from the United States.

The court’s opinion went through the maze of immigration statutes and in the end, the court held that the Kansas conviction for possession of drug paraphernalia without mention of the specific controlled substance, cannot serve as a basis for deportation.

While the decision would seem to call out the Immigration authorities and its courts as to their inconsistent, overbroad and careless reasoning in attempting to deport Mr. Mellouli from the United States, the apparent problems cited in this case can be easily overcome in the future. For the government, especially prosecutors, they need only make mention of the type of drug involved in a drug paraphernalia case in order for the immigration courts to determine if the controlled substance in question is on the federal list. For defense attorneys, make certain that if your client is charged with possession of drug paraphernalia that you are absolutely certain what controlled substance is involved in the charge. Some illegal drugs in the state may not be controlled substances on the federal list. In the end, it may make a huge difference to your non-citizen client as to the likelihood of deportation.

If you have a deportation case, call the immigration law firm of Mirque Law, PLLC in Grand Rapids, Michigan at 616-233-9300.

 

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6th Circuit Rules Conspiracy to Traffic False Identification Documents is a Crime Involving Moral Turpitude

In a rather unsurprising amended opinion, the 6th Circuit Court of Appeals held that under the categorical approach, the petitioner’s plea to conspiracty to traffic false identification documents qualified as a crime involving “moral turpitude” because the conduct prohibited by the statute he was convicted under inherently involved deceit. Accordingly, the petitioner was thus removable.


The petitioner is a Russian citizen who lawfully entered the U.S. On or about 2/3/99, he was indicted for his alleged participation in a “scheme to assist others to fraudulently obtain Michigan driver’s licenses using other fraudulent documents.” He later pleaded guilty in a New York district court to a single count under 18 USC § 1028(f) for conspiracy to traffic in fraudulent identification documents in violation of 18 USC § 1028(a)(3). This underlying offense prohibits “knowingly possessing with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents.” The petitioner was sentenced to five months of imprisonment followed by two years of supervised release. 

On 1/26/05, Department of Homeland Security began removal/deportation proceedings. The petitioner raised the issue as to whether the conviction was one involving moral turpitude. In its decision the court held that the term “crime involving moral turpitude” is not defined in the Immigration and Naturalization Act or by agency regulations. However, the Board of Immigration Appeals (BIA) has held in the past that “[w]here knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present.” “‘Fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.'” The 6th Circuit Court concluded that the BIA’s analysis in Matter of Serna supported their conclusion that any intentional unlawful use or transfer of multiple identification documents whose purpose was to identify individuals to government authorities would inherently be intended to deceive the government in some way. The 6th Circuit further noted that a number of  previous cases supported the proposition that moral turpitude is involved when a statute of conviction requires knowing possession of unlawfully possessed or false identification documents, combined with a corrupt intent to use or transfer the documents unlawfully. Thus, the court held that a conviction under 18 USC § 1028(a)(3) inherently involves deceptive conduct, and the petitioner’s conviction constituted a crime involving moral turpitude. 

If you are a lawful permanent resident facing removal/deportation, feel free to contact my office to have a review of your case. My office telephone number is 616-233-9300. My office email address is info@mirquelaw.com.
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ICE Announces Nearly 400,000 People Deported in 2011

U.S. Immigration and Customs Enforcement (ICE) announced on October 18, 2011 their year-end removal numbers highlighting trends that underscore the agency’s focus on removing individuals from the country that frall into priority areas for enforcement. These priorites include the identification and removal of those that have broken criminal laws, threats to national security, recent border crossers, repeat violators of immigration law and immigration fugitives.

In 2011, ICE removed 386,906 individuals — the largest number in the agency’s history. Of these, nearly 55 percent or 216,698 of the people removed were convicted of felonies or misdemeanors — an 89 percent increase in the removal of criminals since 2008.

The Secretary of Homeland Security has directed ICE to to focus its resources as effectively as possible on key priorites. This includes the use and frequency of investigations and programs like Secure Communities and Operations Cross Check (SCOCC) that targets immigrants with criminal convictions.

In sum, the United States is working very hard to have aliens removed from this country who have criminal convictions more so than ever. This includes convictions of crimes that were previously not considered worthy of removing a person such as a drunk driving misdemeanor.

If you are a permanent resident who has been charged with a crime it is important than ever that you realize that a conviction could jeopardize your ability to stay in the United States. It is extremely important that the attorney handling your criminal case be familiar with the consequences a conviction might have on your immigration status. Or, at the very least, that your lawyer consult with an immigration lawyer.

Please call my office for a consultation on the consequences of a conviction to your immigration status before it’s too late. My office’s telephone number is 616-233-9300.

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The Basics of Deportation/Removal

When an alien is placed into removal proceedings the wheels of uncertainty begin to spin. Family members are often left in a state of panic, confusion, depression and financial despair and often don’t know who to turn to for help. Getting information or simply trying to locate an alien who has been taken into custody can become time consuming and frustrating.

I have successfully represented many clients placed in removal proceedings. I only take on cases that I believe have a chance of winning. Generally, my clients are informed at the initial consultation if I can help them with their removal case. Before I agree to represent a client in removal proceedings, I evaluate the client’s case to determine whether immigration relief is available to the client and the chances of getting that relief granted by the immigration judge. I also determine whether the client can be released on bond and whether the case, if located in another city or state can be moved to an immigration court closer to the client’s home.

The Department of Homeland Security can transfer aliens in removal proceedings within Michigan and even out of State. Usually, the government house aliens in leased jail space such as th Calhoun County Jail in Battle Creek, Michigan or the Monroe County Jail in Monroe, Michigan.

If necessary, I  will order a client’s immigration file from the Department of Homeland Security and their criminal histories from the FBI and State Police to assist me in evaluating their removal case.

An alien may be placed into removal proceedings for many reasons. These reasons are referred to as grounds of inadmissibility and grounds of deportability. In many instances, aliens are placed in removal proceeding because of their criminal history and/or illegal status.

For aliens placed into removal proceedings because of a criminal conviction, I determine the effect that a conviction or convictions will have on an alien’s immigration status. In addition, I will explore the possibility of vacating, expunging or reducing a criminal conviction when it is beneficial to the alien’s removal case to do so.

Immigration court proceedings generally consist of a bond hearing and removal hearings. At a Bond hearing, the immigration judge will decide whether the alien should be released on bond while removal proceedings are pending. At the Master Calendar hearing, an alien will admit or deny the allegations in the charging document called the Notice to Appear, concede or deny removability and inform the immigration judge of the immigration relief that the alien will be applying for to avoid being removed from the United States.

At the Merits hearing, (also referred to as the Individual hearing), the immigration judge will make determine if the alien gets to stay in the United States or will have to leave after hearing all the hearing presented by the attorney for the alien and the U.S. government’s attorney. At the hearing, the alien’s attorney will present documents, take testimony on direct examination from the alien, the alien’s family members and any expert witnesses. The government attorney will also be given an opportunity to cross-exam any witnesses presented by the alien’s attorney.

I represent clients at all hearings, including the bond, master and merit’s hearings in Michigan, Ilinois and any other State. Aliens placed in removal proceedings or their family members can contact the The Law Office of Robert F. Mirque, Jr. at (616) 233-9300  or email me at 
info@mirquelaw.com

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