Criminal Immigration Update!!

Conviction for Endangering the Welfare of a Child Triggers

Deportability-Removability for Lawful Permanent Residents

 

Yesterday, February 9th, 2016, the Board of Immigration Appeals issued a precedent decision in the Matter of Mendoza Osorio, 26 I&N Dec. 703 (BIA 2016), holding that a conviction for endangering the welfare of a child, pursuant to N.Y.S. P.L. §260.10(1), is categorically, a conviction for a “crime of child abuse, child neglect or child abandonment” as that term is used at Immigration and Nationality Act (“INA”) §237(a)(2)(E)(i). Under that immigration statute, a conviction for a “crime of child abuse, child neglect or child abandonment” renders a lawful permanent resident subject to deportation. Under certain circumstances, a lawful permanent resident who has committed a deportable offense, and who satisfies other conditions, may be eligible for discretionary relief from deportation in the form of cancellation of removal.

Pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), defense counsel must be sure to ascertain and advise their client of the direct, adverse, immigration consequences of their client’s proposed guilty plea. In order to ensure the client’s plea is knowing and voluntary, defense counsel should also advise the client whether or not they will qualify for discretionary relief from deportation-removal. Since cases involving these types of charges often end up in a “treatment court” setting, defense counsel should also remember that an “up front” guilty plea, with court imposed treatment conditions – even where the guilty plea is subsequently vacated by the criminal court – may still be found to constitute a conviction for a deportable offense by an Immigration Judge. See, Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). If possible, defense counsel should seek the benefits of a treatment based disposition, without an upfront plea, or negotiate a conditional plea to an offense which does not trigger deportability-removability.

The above is a quick summary of some of the implications of this decision, and cannot serve as a substitute for counsel’s own assessment and evaluation of his client’s case.