“Disorderly conduct” is a very broad term. Depending on the state or city where you live, it could cover surprisingly vast and varied sorts of human conduct. In most parts of the state of Michigan, for example, it could refer to anything from window peeping, engaging in an illegal occupation or business, intoxication in a public place and either endangering directly the safety of another person or of property or acting in a manner that causes a public disturbance, prostitution, engaging in indecent or obscene conduct in a public place, urinating in public to having sufficient ability but refusing or neglecting to support one’s family – and the list goes on.
Whether a conviction for disorderly conduct will affect a non U.S citizen’s immigration status or not depends, first, on what the word “conviction” means under immigration law and, second, whether the disorderly conduct for which an immigrant was convicted of is a crime involving moral turpitude (CIMT) or an aggravated felony. And even where a non U.S citizen is convicted of disorderly conduct that does not fit under the guise of a crime of moral turpitude or an aggravated felony, he or she may still have a hard time establishing good moral character (GMC) – a necessary requirement when applying for U.S citizenship – making it prudent to consult and retain an experienced immigration and criminal defense attorney for the safest possible options.
Conviction
The term “conviction” under (federal) immigration law is starkly different from its meaning under the criminal laws at the various state levels. Regarding the term conviction, the Immigration and Nationality Act (INA) 101(a) (48) provides:
“(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where
- a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
- the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” (Italics mine)
It follows from the language of the above provision of the INA that the twin ingredient for the crystallization of a conviction within the confines of immigration law is guilt regarding the essential elements of the offense charged and an attendant imposition of some form of punishment or restraint on the defendant’s freedom.
Guilt may be pleaded voluntarily by the accused person in a criminal case. Even where the accused person pleads not guilty, the prosecution may successfully discharge its burden of proving beyond reasonable doubt the essential elements of the offenses charged, and as such create the necessary substratum upon which the court can enter a judgment of guilt against the accused person. So, as far as “guilt” goes, it is not so difficult determining the existence of a conviction. The grey area that leaves a number of non U.S citizens uncertain has to do with the second necessary prong of the above provision of the INA that creates a “conviction” – ‘the imposition of some form of punishment or restraint on the accused person’s liberty’. Do such ‘arrangements’ as probation, pretrial intervention programs, substance abuse programs, community service, or fines qualify as an imposition of some form of punishment or restraint on an accused person’s liberty?
In the above quoted provision of the INA, it is pertinent to note the signal use of the conjunctive and, (not the disjunctive, or) indicating the necessary com-presence of both “guilt” and ‘some form of punishment or restraint on the accused person’s liberty’. It would be compelling to argue that both elements are necessary to establish a conviction for immigration purposes and the establishment of one without the other would be insufficient to crystallize a conviction. Perhaps this explains why the Board of Immigration Appeals (BIA) held in Matter of Cabrera, 24 I&N Dec. 459, 460−62 (BIA 2008) and Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017) that a guilty plea or a finding of guilt and any imposition of some form of punishment or restraint on an accused person’s freedom creates a conviction for immigration purposes.
What is the criminal immigration effect of the establishment of “guilt” and the non U.S citizen accused person’s agreement to comply with or submit to probation, pretrial intervention programs, substance abuse programs, community service, or fines? Do these satisfy the second necessary prong of an imposition of some form of punishment or restraint on an accused person’s liberty to crystallize a conviction for immigration purposes?
In Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008), the BIA held that, among others, probation, community service, and substance abuse programs, qualify as “punishment” or “restraint on liberty”.
In Matter of Mohamed, ibid., the BIA held that entry into a pretrial intervention agreement qualifies as a “conviction” for immigration purposes under section 101(a) (48) (A) of the INA where the respondent admits sufficient facts to warrant a finding of guilt and a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete, among other things, community service and pay fines and restitution. However, if an accused person is ordered to attend a pretrial intervention program with no admission of guilt, the order may not count as a conviction for immigration purposes (Matter of Grullon, 20 I&N Dec. 1989).
Does that mean, therefore, that all criminal convictions (in strict immigration parlance) render a non U.S citizen removable? Non U.S citizens may be deported if there is evidence that they have been “convicted” of either:
- A crime involving moral turpitude” (CIMT), or
- A crime that qualifies as an “aggravated felony”.
CIMTs
Although CIMTs are not defined in the INA, case law has not left us completely in the dark regarding what constitutes a CIMT. In Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir. 1997), the BIA said that crimes involving “moral turpitude refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” Specifically, the BIA further stated that “[C]rimes in which fraud [is] an ingredient [are] regarded as involving moral turpitude.” That still does leave a lot of questions unanswered regarding what constitutes a CIMT and quite a huge number of crimes could easily fit under the wide ‘canopy’ of the Wittgenstein definition. To determine if a state conviction is a CIMT, Immigration Judges (IJ’s) and the BIA employ the categorical approach or the modified categorical approach.
Under the categorical approach, the courts consider only “the statutory definition of the crime, not the underlying factual circumstances of the crime.” The Tenth Circuit Court stated in Ibarra v. Holder, 736 F.3d 903, 907 (10th Cir. 2013) that “if every conviction under a given state statute involves moral turpitude, then the state conviction is categorically a CIMT.” In Canada v. Gonzales, 448 F.3d 560, 565 (2nd Cir. 2006), the court stated that to assess whether a crime is a CIMT the BIA using the categorical approach “looks to the elements and the nature of the offense of conviction, rather than to the particular facts relating to the petitioner’s crime.”
However, the modified categorical approach is employed where the statute of conviction is divisible. In other words, where the statute contains several different offenses each having different elements for any of which an accused person be may be convicted, then the courts would deem the statute of conviction divisible and look to the record documents to identify the relevant elements for the defendant’s crime of conviction – United States v. Hood 774 F.3d 638 (10th Cir. 2013). The Tenth Circuit, in United States v. Hood, ibid., stated that “sentencing courts should apply the modified categorical approach when a defendant’s statute of conviction contained alternate terms regardless of whether those terms describe different means of committing a single crime or different elements delineating separate crimes.”
There are too many crimes that come within the ambit of CIMTs than can be conclusively listed as a reference guide here, or arguably anywhere else. This has given rise to the several legitimate ascription of a constitutional defect in the INA’s reference to CIMTs by many eminent legal writers with calls to cure the intrinsic unconstitutional vagueness of CIMTs as currently christened under the INA by, among other things, a more close-ended definition of the phrase to provide a reasonable measure of certainty so that mortal men can know when they are committing a crime. However, considering the fact that CIMTs remain so arguably broad in nature under the INA as currently in force, the most prudent thing to do would be to visit the clerk of the court where your case was adjudicated, obtain a certified disposition of the offense and have a qualified immigration and criminal defense attorney examine it and advise as to whether the offense in question is a CIMT, and, in the event that it is, to see whether you can take advantage of an immigration court’s application of the modified categorical approach to prevent classification of your crime of conviction as a CIMT.
Aggravated Felony
The INA § 101(a) (45) defines “aggravated felony” by expressly listing many offenses and types of offenses, including murder, rape, sexual abuse of a minor, illegal trafficking in firearms or explosives, and a broad range of theft or burglary offenses that may involve violence. The recent U.S Supreme Court decision in Sessions v. Dimaya, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), that renders unconstitutionally vague, the part of the definition of “aggravated felony” that includes “crime of violence”, does not mean that the INA’s definition of the term “aggravated felony” is equally unconstitutionally vague, since the INA defines the term by reference to a long list of other offenses that are clothed with sufficient clarity to appraise human beings of the criminalized conduct. Non U.S. citizens convicted for such aggravated felonies can be placed in removal proceedings.
Regarding deportation proceedings, one huge difference between convictions for CIMTs and convictions for aggravated felonies is that while circumstances may be established to successfully persuade an Immigration Judge for a cancellation of removal of a non U.S citizen who has a conviction for a CIMT, no such opportunity extends to a non U.S citizen who is convicted of an aggravated felony.
If you are a lawful permanent resident facing criminal charges, even as seemingly minor as disorderly conduct, or have already been convicted of an offense, call the Idumesaro Law Firm immediately for a thorough analysis of your options to maintain your U.S immigration status and ensure that there is no disruption of your job, investments, home ownership or family in the U.S.
