Immigration Consequences of Being Charged with Identity Theft

What Immigration Relief is Available to an Undocumented Person in Deportation Proceedings who has Been Charged With Identity Theft?

Based on the facts of the case, defendant may be eligible for cancellation of removal (suspension of deportation) provided he meets the requirements under Immigration and Naturalization Act 240A(b).

Pursuant to Immigration and Naturalization Act 240A(b), cancellation of removal and adjustment of status for nonpermanent residents, is available to an alien who is inadmissible or deportable from the United States if the alien:

• Has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application
• Has been a person of good moral character during such period
• Has not been convicted of a criminal offense or security or terrorist related crime
• Establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence

Continuous Physical Presence

Pursuant to INA § 240A(d)(1), continuous physical presence ends when the alien is served with a Notice to Appear (“NTA”), or when Respondent has committed a crime of moral turpitude that renders Respondent inadmissible under § 212(a)(2) or removable under §§ 237(a)(2) or 237(a)(4).

Pursuant to INA § 240A(d)(2), a departure from the U.S. for a period in excess of 90 days, or 180 days in the aggregate, cuts short the alien’s period of continuous physical presence.

Good Moral Character

The ten-year period of good moral character is calculated backward from the date on which the final administrative decision is entered by the Immigration Judge or the Board.

No Criminal Offense Conviction

Pursuant to INA 212(a)(2) any person is inadmissible if he was convicted of or admits to committing a “crime of moral turpitude.” Some of the crimes which have been found to involve moral turpitude include murder, rape, robbery, kidnapping, voluntary manslaughter, theft, spousal abuse, any crime involving fraud, and some aggravated DUI offenses. For example, false representation of social security number has been found to be a crime of moral turpitude.

However, pursuant to INA 212(2)(A)(ii), an alien is not inadmissible for having committed only one crime of moral turpitude if:

• The crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
• The maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). This exception is known as the “petty offense” exception.

An alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in INA § 212(a)(2)(A)(ii)(II) is not ineligible for cancellation of removal under INA § 240A(b)(1)(C), because he “has not been convicted of an offense under section 212(a)(2)” of the Act.

Exceptionally and Extremely Unusual Hardship

To establish “exceptional and extremely unusual hardship,” the applicant need not show that hardship would be unconscionable, but must show that his or her qualifying relative would suffer hardship substantially beyond that which would ordinarily result from an alien’s removal. However, hardship to the alien may be considered insofar as it affects his or her qualifying spouse, parent, or child.

In determining hardship, the Board has considered the qualifying relative’s age, health, length of residence in the United States, and family and community ties in the United States and abroad. A lower standard of living, diminished educational opportunities, poor economic conditions, and other adverse country conditions in the country of removal are also relevant factors, but will generally be insufficient, in and of themselves, to support a finding of exceptional and extremely unusual hardship. The Board has stated, however, that all hardship factors should be considered in the aggregate to determine whether the qualifying relative will suffer hardship that is exceptional and extremely unusual.

For example, the Board has determined that poor educational and economic opportunities in the country of removal, when combined with the financial burden on the adult respondent, who was sole financial provider for her six U.S. citizen children, the children’s unfamiliarity with the language in the country of removal, the lawful residence of the respondent’s immediate family in this country, and the lack of family ties in the country of removal, among other factors, cumulatively rendered the hardship “well beyond that which is normally experienced in most cases of removal.” Thus, based on the above, if defendant meets all of the requirements, he is eligible for cancellation of removal.

To schedule your free case evaluation with Altman & Altman LLP, call 617.492.3000 or 800.481.6199 (toll free) or contact us online. Our Boston, Massachusetts criminal defense attorneys represent clients in immigration and identity theft cases and are known for securing the best outcomes for our clients’ cases.