Grand Larceny and Aggravated Felonies in New York State

A conviction for Grand Larceny can have dire consequences in the context of immigration because a conviction for Grand Larceny is often categorized as an Aggravated Felony.   The definition of an aggravated felony can be found in Section § 101(a)(43), of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1101(a)(43).  Section 101(a)(43(G) defines an aggravated felony as a crime involving theft where a sentence of more than one year is imposed. Under Section 101(a)(43(M), crimes involving fraud or deceit in which the amount of loss to the victim is in excess of ten thousand dollars is also an aggravated felony. The two sections related to Larceny are 101(a)(43(G) and 101(a)(43)(M). A conviction under either one of these sections is an Aggravated Felony for immigration purposes.   

Article 155 of the New York Penal also defines the differing degrees of Larceny. In New York, larceny can be committed in a number of ways; some involve theft and others fraud. Therefore, when considering a plea of guilty to a larceny charge, the accused has to take into account many factors in determining whether or not a guilty plea will result in a conviction classified as an aggravated felony.


When considering your options as they relate to Larceny, speak to an experienced attorney regarding the potential consequences of a guilty plea.  The consequences can be severe.  

New York Larceny and Aggravated Felonies

Grand Larceny and Aggravated Felonies in New York State

A conviction for Grand Larceny can have dire consequences in the context of immigration because a conviction for Grand Larceny is often categorized as an Aggravated Felony.   The definition of an aggravated felony can be found in Section § 101(a)(43), of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1101(a)(43).  Section 101(a)(43(G) defines an aggravated felony as a crime involving theft where a sentence of more than one year is imposed. Under Section 101(a)(43(M), crimes involving fraud or deceit in which the amount of loss to the victim is in excess of ten thousand dollars is also an aggravated felony. The two sections related to Larceny are 101(a)(43(G) and 101(a)(43)(M). A conviction under either one of these sections is an Aggravated Felony for immigration purposes.   

Article 155 of the New York Penal also defines the differing degrees of Larceny. In New York, larceny can be committed in a number of ways; some involve theft and others fraud. Therefore, when considering a plea of guilty to a larceny charge, the accused has to take into account many factors in determining whether or not a guilty plea will result in a conviction classified as an aggravated felony.


When considering your options as they relate to Larceny, speak to an experienced attorney regarding the potential consequences of a guilty plea.  The consequences can be severe.  

Proposed Immigration Reform Bill

The below is a link to the American Immigration Lawyers Association website.  It includes proposed legislation regarding immigration reform.  My initial reaction is that a number of people in the United States who are out of lawful status will be forced to wait aconsiderable amount of time before they are able to adjut to "Registered Provisional Immigrant Status."  The other consideration is the deadline.  The application period will be for one year after the requirements for securing the border are met.  It appears, however, that the proposed legislation does attempt to deal with the huge number of people who have been her many tears and have no criminal bars to their adjustment:

This below section comes into play after the border securitization are in place:

Legalization and Legal Immigration

 

I.          Adjustment of Status to Registered Provisional Immigrant Status

 

·         Individuals in unlawful status may apply to adjust their status to the legal status of Registered Provisional Immigrant Status.

 

·         Eligibility Criteria:

 

·         Residence in the United States prior to December 31, 2011 and maintenance of continuous physical presence since then.

 

·         Paid a $500 penalty fee (except for DREAM Act eligible students), and assessed taxes, per adult applicant in addition to all applicable fees required to pay for the cost of processing the application.

 

·         Ineligible if:

o   Convicted of an aggravated felony;

o   Convicted of a felony;

o   Convicted of 3 or more misdemeanors;

o   Convicted of an offense under foreign law;

o   Unlawfully Voted; and

o   Inadmissible for Criminal, National Security, Public Health, or other morality grounds.

 

·         Spouses and children of people in RPI status can be petitioned for as derivatives of the principal applicant (but must be in the United States at the time).

 

·         Immigrants in RPI status can work for any employer and travel outside of the United States

 

·         Individuals outside of the United States who were previously here before December 31, 2011 and were deported for non-criminal reasons can apply to re-enter the United States in RPI status if they are the spouse, of or parent of a child who is, United States citizen or lawful permanent resident; or are a childhood arrival who is eligible for the DREAM Act.

 

 

·         The Application period will be for 1 year with the possibility of extension by the Secretary for an additional 1 year.

 

·         Individuals with removal orders will be permitted to apply as will aliens currently in removal proceedings.

 

·         RPI status shall last for a 6-year term that is renewable if the immigrant does not commit any acts that would render the alien deportable.  Another $500 penalty fee is applicable at this time.

 

 

·         The Secretary may collect a processing fee from individuals who register for RPI status in an amount that is sufficient to recover all of the costs of implementing the registration program.

 

·         An individual who has been granted RPI status is not eligible for any Federal means-tested public benefit (as such term is defined in section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613)).

 

·         A noncitizen granted registered provisional immigrant status under this section shall be considered lawfully present in the United States for all purposes, while such noncitizen remains in such status, except that the noncitizen

o   is not entitled to the premium assistance tax credit authorized under section 36B of the Internal Revenue Code of 1986; and

o   shall be subject to the rules applicable to individuals not lawfully present that are set forth in section 1402(e) of the Patient Protection and Affordable Care Act (42

U.S.C. 18071).

 

·         After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based System everyone else must use to earn a green card (described below) if the following things have occurred:

o   The alien maintained continuous physical presence

o   They paid all taxes owed during the period that they are in status as an RPI

o   They worked in the United States regularly;

o    And demonstrated knowledge of Civics and English

o   All people currently waiting for family and employment green cards as of the date of enactment have had their priority date become current.

o   A $1,000 penalty fee is rendered

·         People in DREAM Act Status and the Agricultural Program can get their green cards in 5 years and DREAM Act kids will be eligible for citizenship immediately after they get their green cards.

The full text of the summary:
http://www.aila.org/content/default.aspx?docid=44052&utm_source=AILA+Mailing&utm_campaign=156b68f884-AILA8_4_16_13&utm_medium=email

Immigration Reform

The linked article discusses Senator Marco Rubio's view of the proposed immigration legislation he is helping draft.  I understand his claim that the proposed bill is not designed to be an amnesty and that it wants the wait times for adjustment to be long, but wonder, can the immigration process be any more difficult or time consuming than it already is? Wait times for family visas in some instances is twenty years and these are for applicants who are not currenlty in th eUnited States.  In addition,  isn't the very nature of what Rubio and his team are drafting a form of Amnesty?  In most instances, it seems that people who are here illegally do not want to leave.  Permitting them to pay fines and remain in the United States while they adjust status is, in my opinion, a form of Amnesty.  Nevertheless,  if the outcome of these negotitaions means that the problem of eleven million people currently not in lawful status is addressed in a manner that addresses the effects of this untenable situation,  Senator Rubio can call it what he likes.  It iwill be an improvement. 

http://www.huffingtonpost.com/2013/04/14/rubio-immigration-amnesty-_n_3080184.html

April 2013 Visa Bulletin

The Department of State recently published the Visa Bulletin for April 2013.  The link for the Department of State website is below. 

http://travel.state.gov/visa/bulletin/bulletin_5900.html

Get in Line

The below link comes from the American Immigration Council's Immigration Policy Center.  It addresses the argument that undocumented immigrants should "wait in line."  The "line" or "lines" that the article describes are either non-existent or so long that as to make immigration unlikely or impossible for many people. 

Practically speaking, eleven million people are not leaving the United States.  Border security is at an all time high and the number of people crossing illegally into the United States is at an all time low. The time seems is for comprehensive immigration reform that involves a path to citizenship for those who have been here for a long time, pay a fine and pay back taxes.  How we address the nation's need for immigrants and foreign workers is a topic for a follow-up blog. 


http://www.immigrationpolicy.org/just-facts/why-don%E2%80%99t-they-just-get-line

ACDs in New York and Immigration

          The Immigration Consequences of Adjournments in Contemplation of Dismissal (ACD's)

In New York, the Adjournment upon Contemplation of Dismissal ("ACD") is a common method used by criminal courts use to deal with less serious offenses. A judge will adjourn a matter, usually for six months. During that time a defendant has to avoid rearrest.  The the matter is then dismissed at the end of six months and does not result in a conviction or judgment of guilt.

There are generally no immigration consequence for an "ACD" because the underlying matter has been dismissed and the accused stands in the same position in the eyes of the law as before the arrest. It does not eliminate the disclosure requirement found on many immigration petitions, however.  An applicant for an immigration benefit still has to disclose an arrest to USCIS or DHS when asked.  For instance, an individual who would like to apply for citizenship has to disclose his/her arrest to USCIS and answer any questions related to the applicant's good moral character that may arise.

The above informational only. It is not legal advice.  Contacting an experienced immigration attorney prior to applying for any immigration is the best way to protect your rights in this type of situation.

Immigration Policy and the Founding Fathers

Thanks to Mark Curley of Curley Law, in Omaha, Newbraska for posting the following link on Facebook.  We live in an age where people regularly look to the intent of "Founding Fathers" as  a benchmark for making decisions about the direction towards which the Unites States is heading.  In the case of immigration, Elizabeth Cohen suggest that time spent in the United States and good behavior have been the hallmarks for granting citizenship rights to immigrants, both legal and illegal.

Opponents of immigration reform have raised the issue of border security as an issue that needs to be addressed before permitting people currently here illegally to adjust status that of lawful permanent resident (LPR). The border argument may or may not be a red herring, but in this global era, we should also consider laws that facilitate a freer of flow of labor across borders, rtather than restricting it.   The North American Free Trade Agreement, for istance, signed during the Clinton Administration, tore down many trade barriers that existed between Canada, Mexico and the United States.  Capital and ideas flow freely between the signatories, but the free movement of labor is stymied by laws that effectively slow the flow of labor entering the United States.  

It is encouraging that business and labor groups are working to develop such a program.    It could normalize the relationship between the economies of the United States.  Resolving such an issue may begin the process of having to determine whether "time spent" and "good behavior" warrant a grant of citzenship rights.  What would the Founding Fathers have to say? I am interested. 



http://www.washingtonpost.com/opinions/should-illegal-immigrants-become-citizens-lets-ask-the-founding-fathers/2013/02/01/ec3cca66-6bba-11e2-bd36-c0fe61a205f6_story.html?fb_ref=sm_btn_fb

Deferred Action

More Answers from USCIS regarding DACA. The full link is attached is at the end of the text:

About Deferred Action for Childhood Arrivals

New - Q1: What is deferred action?
A1: Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.
Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time, at the agency’s discretion.
Q2: What is deferred action for childhood arrivals (DACA)?
A2: On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.
Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the guidelines set forth in the Secretary of Homeland Security’s memorandum.
Q3: If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization?
A3: Yes. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.
Q4: Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
A4: This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE – pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.
New - Q5: Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals?
A5: You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years of age at the time of the request. If you are under 18 years of age at the time you submit your request, you will not accrue unlawful presence while the request is pending, even if you turn 18 while your request is pending with USCIS. If action on your case is deferred, you will not accrue unlawful presence during the period of deferred action. However, having action deferred on your case will not excuse previously accrued unlawful presence.
New - Q6: If my case is deferred, am I in lawful status for the period of deferral?
A6: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status.
The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time.
Apart from the immigration laws, “lawful presence”, “lawful status” and similar terms are used in various other federal and state laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities.
New - Q7: Is there any difference between “deferred action” and “deferred action for childhood arrivals” under this process?
A7: Deferred action for childhood arrivals is one form of deferred action. The relief an individual receives pursuant to the deferred action for childhood arrivals process is identical for immigration purposes to the relief obtained by any person who receives deferred action as an act of prosecutorial discretion.
Q8: Does deferred action provide me with a path to permanent residence status or citizenship?
A8: No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.
Q9: If my case is deferred, will I be eligible for premium tax credits and reduced cost sharing through Affordable Insurance Exchanges starting in 2014?
A9: No.  The Departments of Health and Human Services and the Treasury intend to conform the relevant regulations to the extent necessary to exempt individuals with deferred action for childhood arrivals from eligibility for premium tax credits and reduced cost sharing.  This is consistent with the policy under S. 3992, the Development, Relief, and Education for Alien Minors (DREAM) Act of 2010.
Q10: Can I be considered for deferred action even if I do not meet the guidelines to be considered for deferred action for childhood arrivals?
A10:This process is only for individuals who meet the specific guidelines announced by the Secretary of Homeland Security. Other individuals may, on a case-by-case basis, request deferred action from USCIS or ICE in certain circumstances, consistent with longstanding practice.
Q11: Will the information I share in my request for consideration of deferred action for childhood arrivals be used for immigration enforcement purposes?
A11: Information provided in this request is protected from disclosure to U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to U.S. Immigration and Customs Enforcement under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA).  Individuals whose cases are deferred pursuant to the consideration of deferred action for childhood arrivals process will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor.
This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.
Q12: If my case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?
A12: If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians. However, that information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of the deferred action for childhood arrivals request, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.
This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.
Q13: Does this Administration remain committed to comprehensive immigration reform?
A13: Yes. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our nation’s economic and security needs.
Q14: Is passage of the DREAM Act still necessary in light of the new process?
A14: Yes.The Secretary of Homeland Security’s June 15th memorandum allowing certain people to request consideration for deferred action is the most recent in a series of steps that DHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred action does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.
Q15: Can I request consideration of deferred action for childhood arrivals under this process if I am currently in a nonimmigrant status (e.g. F-1, E-2, H-4) or have Temporary Protected Status (TPS)?
A15: No. You can only request consideration of deferred action for childhood arrivals under this process if you currently have no immigration status and were not in any lawful status on June 15, 2012.

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=3a4dbc4b04499310VgnVCM100000082ca60aRCRD&vgnextchannel=3a4dbc4b04499310VgnVCM100000082ca60aRCRD