Seguritan US Immigration Articles

Conviction For Elderly Abuse is Bar to Deportation Relief

For noncitizens residing here in the US, the commission of certain crimes has immigration consequences. It may render them inadmissible and/ or deportable. There are also certain crimes known as CIMT or crimes involving moral turpitude which may preclude eligibility for deportation relief including cancellation of removal. A CIMT has been defined by the Board of Immigration Appeals (BIA) as a crime that is “inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.”

In one case, an alien entered the US without inspection and without any legal documents. He was later convicted of abuse of an elderly. When he tried to take advantage of the Temporary Protected Status (TPS), his request was denied because of his conviction. On the very same day, he was issued a Notice to Appear by the Department of Homeland Security (DHS), charging him with removability because he was an alien present in the United States without being admitted or paroled under the Immigration and Nationality Act (INA) and he was an alien convicted of a CIMT.

The immigration judge ordered him removed. He appealed to the BIA contending that he qualified for relief from removal. The BIA determined that he did not qualify for relief because of his conviction for CIMT. He filed a petition for review with the US Court of Appeals but his petition was dismissed.

It is worth noting that in Florida, a criminal conviction for abuse of an elderly person or disabled adult is considered a CIMT and will hold an alien ineligible for relief from removal proceedings based on this criminal conviction.

Under Florida laws, a person who knowingly or willingly abuse an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree. For the willful act to be considered an “abuse”, it has to be one of the following three alternative ways: (a) intentional infliction of physical or psychological injury upon an elderly person or disabled adult; (b) an intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or (3) active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.

It is very important for foreign nationals to seek the help of accredited immigration lawyers because CIMTs can affect the immigration status or application for immigration relief. Even those who were initially admitted to the US and travelled to other countries may have difficulty reentering the US because of a CIMT. Those who want to adjust status or become lawful permanent residents may likewise find it challenging if they have a CIMT especially if this happened within five years from admission. Same goes to those who want to apply as US citizens.

Different states have different penal laws as well. Thus, a CIMT in one state may not be a CIMT in another state.

Last year, we successfully represented a Filipino caregiver in her immigration case. She had been convicted of violating the California Penal Code Section 368 (c) for committing the crime of abuse of elder or dependent adult by caretaker. In that case, there was a finding that said caretaker “willfully caused and permitted his ward’s person and health to be injured and willfully caused and permitted the elder victim to be placed in a situation where his person and health have been endangered.”


Relief from Deportation

Although president-elect Donald Trump has softened his stance on deporting undocumented immigrants, many are still fearful of what his presidency could do especially to the young immigrants who came out of the shadows and offered their information in exchange for the protection promised by the Deferred Action on Childhood Arrivals (DACA).

Being placed under removal proceedings, otherwise known as deportation, is probably one of the hardest things any immigrant might have to experience. Thankfully, various deportation reliefs are available. Some reliefs will even offer a path to permanent residence which can ultimately lead to citizenship. Therefore, it is best to know what options are available before giving up hope.

Reliefs from deportation include asylum, cancellation of removal, adjustment of status, voluntary departure and deferred action.

Aliens who have a well-founded fear of persecution from their home country on account of their race, religion, nationality, membership in a political group or political opinion can seek asylum here in the US. They can bring their family members to the US, obtain employment authorization and may be eligible to apply for a green card one year after the grant of an asylum.

Cancellation of removal, just like an application for asylum, can also lead to a green card.

To be eligible for cancellation, the alien must prove continuous physical presence in the US of at least 10 years counted from the first physical entry into the country, legally or illegally, and ends upon the service of the notice to appear (NTA) at a removal proceedings. He must also prove his good moral character during the 10-year period and must establish that deportation would result in ‘exceptional and extremely unusual hardship” to a US citizen or a legal permanent resident spouse, parent or child.

For an alien who was admitted and inspected when he came to the US and he is the parent, spouse, widow or child of a US citizen, he may apply to adjust his status to permanent residence even before the immigration judge if removal proceedings have already begun.

Another type of relief that may be available is voluntary departure. This allows an alien who would otherwise be deported to leave the US at his own expense but within the time period ordered by the judge, which can be as long as 120 days if requested at the beginning of the proceedings.

An alien who is ordered removed may be barred from reentering the US for at least several years, but one who voluntarily departs is not subject to the penalties of removal. Voluntary departure may be requested before or at the master calendar hearing, after the individual hearing, or at the conclusion of the proceedings.

Finally, the alien can also request for a deferred action which may be granted for humanitarian reasons. It is a form of relief granted not by the judge but in the exercise of prosecutorial discretion by the district director.

The alien must demonstrate that his removal is not a priority of the government. Some of the factors to be considered include the likelihood of ultimately removing the alien; the presence of sympathetic factors; likelihood of a large amount of adverse publicity because of those sympathetic factors; the alien’s continued presence is desired by law enforcement for an ongoing investigation or review; and whether the alien is a member of a class that is  a high enforcement priority.


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