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A Jamaican man was convicted of conspiracy to commit a robbery, and on this basis was found to be removable as an aggravated felon.  Respondent filed a motion to terminate, but this was denied by the Immigration Judge, so he appealed, asserting that his conspiracy conviction did not require a finding of commission of an overt act, and thus is not an aggravated felony under 101(a)(43).

The BIA agreed with the Respondent, finding that the Immigration Judge went too far in considering evidence that showed that the conspirators actually did carry out the alleged robbery, saying that only the offense that is actually charged can be considered.  Thus, a conviction for conspiracy to commit a theft cannot be considered a theft offense under 101(a)(43)(G), even if there is evidence that the theft was completed.  On the issue of the conspiracy conviction, for the purposes of 101(a)(43)(U), the court held that the conspiracy does not require the commission of an overt act.  This conclusion was based on the Supreme Court decisions in Whitfield v. US, 543 U.S. 209 and United v. Shabani, 513 U.S. 10, which found that Congress had intentionally removed language from the statute negating the need to show an overt act to sustain a finding of conspiracy under the Act.  They also looked at the common law meaning of the term conspiracy, which met the same conclusion.  Thus, the court held that conspiracy under 101(a)(43)(U) does not require a finding of the commission of an overt act in furtherance of the conspiracy by one of the conspirators, and the Respondent was thus still removable.

Matter of Richardson, 25 I&N Dec. 226 (BIA 2010).

In the United States, the immigration system and the criminal system are closely, but inconspicuously, related.  Attorneys and immigrants alike frequently fail to realize the potential ramifications for pleading guilty to a seemingly minor criminal charge.  In some cases, a misdemeanor drug offense can lead to removal from the country, regardless of any other positive factors favoring allowing the immigrant to stay.

The Supreme Court is set to reconsider this issue in Carachuri-Rosendo v. Holder.  Mr. Carachuri-Rosendo was a longtime legal resident of Texas, settled down with a fiancée and four children, all of whom are Unites States citizens.  But, after he had a couple of convictions for possession of marijuana and a tablet of Xanax, a common anti-anxiety drug, he found himself deported back to Mexico, leaving the life he had known for years behind.

Another example of this is Mr. Lemaine, a case cited in amicus briefs dealing with the same issue as Mr. Carachuri-Rosendo.  Mr. Lemaine came to the United States from Haiti at the age of three.  As a teenager, he was caught with a small amount of marijuana, but this case was dropped.  Then, in 2007, he was again caught with a small amount of marijuana, and his legal aid counsel advised him to enter a guilty plea, and agree to pay the mere $100 fine.  This normally would seem like the best way to handle such a charge; however, neither party was aware that this had drastic consequences for his immigration status.  Before he knew it, he was in handcuffs, on his way to Texas to face an immigration judge, and eventual deportation.

In neither of these cases, were the defendants able to raise defenses in their favor, such as how both have large amounts of family in the United States, with little to return to in their home country.  Nor does it matter that, in the grand scheme of our criminal justice system, the charges that were brought against them are minor; neither seemed to pose any large threat to public safety.

For now, both defendants must wait for a ruling in Carachuri-Rosendo v. Holder, their last hope for staying in the United States and continuing the lives they have known.

The short answer, YES, if it relates to a procedural immigration matter and not expressly prohibited by a statute,  it may be reviewed as held in the January 2010 Supreme Court decision of Kucana v Holder.  cf 130 S. Ct. 827, (2010). This by no means implies that the Albanian immigrant Agron Kucana will ultimately prevail in his motion to reopen his removal proceedings.  The Supreme Court merely reversed the lower court decision against judicial review and remanded the case for further consideration consistent with the Supreme Court’s decision.

Agron Kucana arrived in the United States under a three month Business Visa, he then applied for asylum, however he OVERSLEPT and arrived fifteen minutes after his hearing and was therefore ordered removed in absentia.  This saga brings up many important factors in immigration law, including congressional intent, executive discretion and the court’s ability to or in some cases the court’s inability to review.  This inability to review is often unique in immigration matters as the congress has nearly plenary power to create immigration law and in many cases can prohibit judicial review.

Click here to read the law and rationale that the Supreme Court used to reach their decision.