Common misconceptions about Aggravated Felonies in immigration cases

1. Myth: "It can't be an aggravated felony because it was only a misdemeanor."
The term "Aggravated Felony" is a term of art. The meaning is independent of any State of Federal definition of the either the term "aggravated" or the term "felony". Many, many misdemeanors are aggravated felonies under the INA.
2. Myth: "It can't be an aggravated felony, I never went to jail."
There are actually very few categories of aggravated felonies that are dependent on a specific sentence. For instance, while crimes of violence and theft crimes are not aggravated felonies unless a sentence of one year or more has been imposed, the sentence imposed and the sentence served can be two vastly different things because the term imposed includes any portion which was suspended or left unserved due to good behavior or other factors. In fact, most aggravated felony categories require no specific sentence, imposed or otherwise. Drug Trafficking, Sex, and Fraud offenses can all be aggravated felonies if certain conditions exist even in the absense of any term of imprisonment.
3. Myth: "It's definitely an aggravated felony, I was in prison for 10 years."
Conversely, there are also many crimes which simply are not aggravated felonies regardless of the term of imprisonment imposed. For instance, battery and certain manslaughter offenses under California law do not qualify as aggravated felonies because they lack any element requiring a quantum of violence. These offenses can result in long prison terms and could, under certain circumstances, have no immigration effect at law.
4. Myth: "I was convicted of an aggravated felony, there is no defense to my deportation."
Attorneys skilled in the representation of criminal aliens win aggravated felony cases all of the time. The law in this area is quite complex and dynamic. There are certain forms of relief such as withholding of removal, 212(c), adjustment with an (h) waiver, among others which are not barred by an aggravated felony conviction. Also, very often a crime which appears on its surface to be an aggravated felony often turns out not to be an aggravated felony. Sometimes the government is simply unable to present clear and convincing evidence that the offense is an aggravated felony. Just within the past year or so, no less than five different distinct offenses were reclassified by the United States Court of Appeals for the 9th Circuit as either aggravated felonies or non-aggravated felonies and they also made drastic changes in the availability of relief. Furthermore, even aggravated felonies are susceptible to being reopened or challenged in the State Courts and any changes to the conviction in the State Court that are not based on rehabilitation alone are binding on the Immigration courts.

Update on Ramirez v. Brown, 9th Circuit TPS case

Ramirez v. Brown (No. 14-35633) which holds that recipients of Temporary Protected Status are deemed to be in lawful status and thus are considered to have been inspected and admitted for purposes of adjusting status has been retitled Ramirez v. Dougherty (same case number). On May 4, 2017, the government requested an extension of time until June 29, 2017 to file a Petition for Rehearing. I do not expect the petition to be successful.

Read the decision here.

This decision affects many, many TPS holders. If you have TPS, you should schedule an appointment with us to determine whether we can get you a green card.

California Criminal Court Lingo

All Courts in all jurisdictions have their own unique and very regional lingo. This is confusing even to attorneys who work in multiple jurisdiction. Most --that's right, i said MOST-- criminal defendants really have no idea what is going on in their cases because of all the lingo. Here are some commonly used phrases in Los Angeles area criminal courts with informal definitions:

Arbuckle Waiver:

Allows a different judge to sentence you than the judge who accepted your plea of guilty or no contest. You have the right to be sentenced by the same judge but this is not always practical, preferable or even possible.

A Bullet:

A sentence to one year in the county jail. Common context: "How long are people serving on a bullet?" By statute, barring unusual circumstances, one year in the county jail is nine months (1.5 days credit for every day actually served.) Overcrowding and other considerations cause the length of a bullet to fluctuate between four and nine months though I have anecdotally heard of people getting out in one month on a bullet.

Harvey Waiver:

Permits the court to consider dismissed charges and pretty much anything else during sentencing in a criminal case. It gives the Court and the prosecution a little extra confidence that the plea won't be subject to collateral attack.

DEJ:

Deferred Entry of Judgment. A successor term to "diversion". Both concepts relate to rehabilitative types of sentences. In Diversion (which has gone the way of the wooly mammoth) a judge would dismiss the charges if the defendant attended some classes or did something else the court perceived would solve the problem without the necessity for a conviction. DEJ is similar with the exception that in DEJ the defendant enters his guilty plea before being he rehabilitates himself but the judgment itself is withheld. The difference is, DEJ is still a conviction under the Immigration definition while diversion is not, so be careful if you're not a citizen.

West Plea:

"West" refers to the case of People v. West in which the Court acknowledged that sometimes people plead guilty or no contest to crimes in order to advantage of a plea bargain reached with the prosecution. When you plead pursuant to West, you are not admitting any particular set of facts-- you simply stipulate that somewhere, somehow, under some construction of the police reports and/or preliminary hearing transcripts there exists some fact which would make you guilty of something.

Faretta Waiver:

You can represent yourself in Court if you want, but you are presumed to be insane if you try to do so. As such, the Courts are required to make at least a brief inquiry to make sure you are not out of your freakin' mind before they let you represent yourself.

Tahl Waiver:

Also known as a Boykin or Tahl/Boykin waiver. These cases established the rule that a defendant's plea can be challenged if s/he was not properly advised of the Constitutional rights being waivedin order to enter a guilty plea and also of the direct consequences of the plea. The rights waivers can be taken orally or can by a form called, oddly enough, a Tahl waiver form.

Bodies:

If you're in custody, this is what you are. If you are wondering why the judge keeps asking his bailiff where the bodies are, it is not because he's hungry. Its because he wants to get through his detained docket.

1016.5 Advisement:

Cal. Pen. C. §1016.5 contains a special advisement that must be given to non-citizens letting them know that their conviction can result in deportation, denial of admission, and denial of asylum. Because very few prosecutors, judges and criminal defense attorneys understand immigration law, these advisements are frequently given improperly (i.e., Prosecutors love to replace the word 'admission' with the word 're-entry'. There is an article about this in the Criminal Immigration Resource Pages.)

Dumptruck:

A lawyer who pleads out all of his cases quickly.

True Believer:

Generally a young or inexperienced prosecutor who either equates a defendant's having been arrested with complete and utter moral bankruptcy and lack of value to society. They believe that the concept of redemption is a joke, rehabilitation is nonsense, and that good people never make errors in judgment. They are easily angered by the suggestion that criminal defendants are actual human beings or the suggestion that our system of justice occassionally produces bad results.

Deuce:

Driving while under the influence of drugs or alcohol.

Cop (to):

Change Of Plea (C.O.P.) from not guilty to guilty or no contest. "Cop a plea" is technically redundant.