Immigration Law Perspective

Immigration Law Perspective

Note:All articles in this edition refer to the Guest Editor’s column found here.

 

As an initial matter it must be recognized that this is a very difficult case as Stefan Knight is not a United States citizen. Assuming Mr. Knight is a Lawful Permanent Resident of the United States, his situation could be particularly perilous if he is convicted of a crime involving moral turpitude. The immigration consequences of the possible charges against Mr. Knight include California Penal Code § 273(a), child injury, endangerment and California Penal Code § 245 (a)(1), Assault with force likely to cause great bodily injury. There are potential consequences for criminal charges that may impact his immigration status and his ability to apply for naturalization.

Pursuant to the Immigration and Nationality Act (INA) § 237(a)(2)(A)(i), 8 USC § 1227(a)(2)(A)(i), a noncitizen is deportable based upon conviction of a single crime involving moral turpitude that carries a potential sentence of a year or more, if the person committed the offense within five years “after the date of admission.” The INA defines the terms “admitted” and “admission” as the lawful entry of a noncitizen following inspection and authorization by an immigration officer.

If Mr. Knight is convicted of Penal Code § 273(a) or Penal Code § 245(a)(1) within five years of his admission to the United States, then he would be deportable.

Penal Code § 273(a) should not be a crime involving moral turpitude in the Ninth Circuit, but best practice for Mr. Knight is to plead specifically to negligently permitting endangerment rather than intentional conduct. The minimum conduct to commit PC §273(a) is not a crime involving moral turpitude and all PC §273(a) convictions are evaluated based on the minimum conduct. But a specific negligence plea will protect Mr. Knight against the risk that the definition of a divisible statute might change, or that Mr. Knight might be placed in removal proceedings outside the Ninth Circuit should he move. Based on the facts of Mr. Knight’s case, he explained to the arresting officer that he had no intent to injure his child, but was rather frustrated and unaware of his own strength. Thus Mr. Knight should plead specifically to negligently permitting endangerment in the event he is charged under Penal Code § 273(a).

In addition, one needs to assume that §273(a) is a deportable crime of child abuse. Although PC §273(a) reaches very mild conduct, and Ninth Circuit at one point held that it is not child abuse, assume conservatively that it will be charged as child abuse. It is difficult to predict this because there is not yet a specific definition of “child abuse” for immigration purposes. When plea-bargaining on behalf of Mr. Knight, emphasize to prosecution that even misdemeanor PC §273(a) for minor conduct may well cause Mr. Knight’s child to permanently lose his or her Lawful Permanent Resident parent. Instead, seek a plea to an alternate offense that includes the required criminal punishment and probation conditions, but that will not make Mr. Knight deportable. This can include any age-neutral offense such as PC §243, Battery. In addition, as long as a minor child is not listed in the record of conviction, Mr. Knight can accept parenting counseling as a probation condition. Consider whether a PC §1001 misdemeanor pretrial diversion may be available, as this is not a conviction for immigration purposes. Also consider an informal pretrial diversion, where Mr. Knight’s plea hearing is put off while he completes certain requirements such as counseling, in exchange for an alternate plea.

Conservatively, assume Penal Code § 245(a)(1) is also a crime involving moral turpitude. It is advised that Mr. Knight’s criminal defense attorney keep the minor child’s age out of record of conviction to prevent crime of child abuse.

Mr. Knight’s Eligibility for United States Citizenship

United States immigration law requires that an applicant for naturalization be a person of “good moral character.” Mr. Knight must show that he has been, and continues to be, a person of good moral character. In general, he must show good moral character during the five-year period immediately preceding his application for naturalization and up to the time of the Oath of Allegiance. In general, a noncitizen is statutorily barred from establishing good moral character if, during the time for which good moral character must be shown, he is convicted of or admitted committing a single crime involving moral turpitude. INA § 101(f)(3), 8 USC § 1101(f)(3). This ground of ineligibility applies, not only when there has been a conviction, but also, in some circumstances, when an individual admits to committing such a crime. Regardless of whether Mr. Knight, a Lawful Permanent Resident is arrested or convicted of Penal Code § 273(a) and/or Penal Code § 245(a)(1) or merely admits to committing one or more crimes involving moral turpitude during the statutory period, he cannot establish good moral character and may be ineligible for naturalization.

Mr. Knight’s arrest or possible convictions may preclude him for having the requisite good moral character for naturalization and may also prevent him from renewing his Lawful Permanent Resident card. By filing an application for naturalization or to renew his permanent resident status, Mr. Knight may trigger a referral to the immigration court for removal proceedings if he is convicted. In conclusion, the best defense for Mr. Knight is to remain on the offensive to avoid any convictions that may negatively impact his ability to apply for naturalization and worst case, possibly lead to his removal from the United States.

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