Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Immigration Facts Every Judge and Attorney Should Know

1. Pleading guilty to domestic assault “intent to cause fear” is no longer a “safe” plea for noncitizens. In the past, most criminal defense attorneys and prosecutors operated under the assumption that a conviction of domestic assault “intent to cause fear” in violation of Minn. Stat. §609.2242 subd. 1(1) was a “safe” plea for noncitizen defendants because everyone seemed to agree it was not a crime of violence under 18 U.S.C. §16(a), which would make a defendant removable under §237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). This is no longer the case.  Beginning in 2013, based on an 8th Circuit sentencing case, U.S. v. Salido-Rosas, 633 F.3d 1254 (8th Cir. 2011), the Department of Homeland Security (DHS) began arguing that any domestic assault conviction is a removable offense. In addition, some immigration judges have ruled that a fighting/brawling disorderly conduct conviction (but not a noisy/boisterous disorderly) that arose out of a domestic charge is also a deportable crime of domestic violence under U.S. v. Frausto-Vasquez, 435 Fed. Appx. 575 (8th Cir. 2011).

2.  Immigration law defines a “conviction” broadly to include offenses that are not convictions in state court. Under the definition found at 8 U.S.C. §1101(a)(48)(A), a conviction for immigration purposes includes: (a) a stay of adjudication, (b) a plea under Minn. Stat. §152.18, (c) an Alford plea, (d) a nolo contendere plea (or similar type of plea), (e) a continuance for dismissal if an admission of facts or guilty plea is on the record.

3.  Violation of an OFP or no contact order (Danco, etc) constitutes a ground for deportation. This applies to judicial findings issued in civil or criminal court including juvenile delinquency proceedings and probation violation hearings. This deportation ground, found at 8 U.S.C. §1227(a)(2)(E)(ii), is very broad and covers any type of violation, except violation of a provision such as requiring attendance at and payment for a counseling program or requiring the payment of costs for supervision during parenting time. Matter of Strydom, 25 I&N Dec. 507 (BIA 2011).

4.  The length of a defendant’s sentence and/or any ambiguity in the sentencing order can create deportation issues. In immigration court, whether a state conviction counts as an aggravated felony for deportation purposes often depends on the length of sentence imposed by the court. For example, many crimes count as aggravated felonies for deportation purposes when a sentence of “one year” (365 days) or longer is imposed.

For example, if a felony is sentenced as a gross misdemeanor with 365 days imposed, the immigration court will consider that an aggravated felony even though it is not a felony conviction for state court purposes. Matter of Small, 23 I&N Dec. 448, 450 (BIA 2002).

In addition, although often intended by the court as an act of judicial leniency, imposing the maximum sentence and then suspending all or part of that sentence can have serious consequences in immigration court. Under federal immigration law, 8 U.S.C. §1101(a)(48)(B), when classifying cases for deportation purposes immigration courts look to the actual length of the imposed sentence.  How much of the imposed sentence is stayed or executed is of no consequence. Matter of S-S-, 21 I&N Dec. 900 (BIA 1997).

Also, if there is any confusion in MNCIS (or the written sentencing order) on whether the court stayed imposition of sentence or imposed the sentence, that ambiguity has been weighed against the noncitizen and treated as an imposed sentence.

5. Immigration consequences can attach to crimes that do not qualify as aggravated felonies or that involve moral turpitude. 

For example:  

a) Temporary Protected Status (TPS)—allowing nationals of a foreign state to live and work legally in the United States when conditions in that state preclude their return—is unavailable to someone convicted of any felony or any two misdemeanors (regardless of how old they are).

b) Deferred Action for Childhood Arrivals (DACA) is unavailable to someone convicted of any felony; or three or more misdemeanors (regardless of how old they are); or any “significant misdemeanor” (defined as one that involves domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or DWI; or if not listed, whenever the sentence to be served “in custody” is 90 days in jail or more).

c) DWIs Have Special Consequences: In addition to disqualifying a noncitizen from the DACA program noted above, multiple DWIs have been known to support a discretionary decision to hold a noncitizen without bond. Moreover, depending on circumstances, a simple DWI could fall under the “particularly serious crime” bar to “withholding of removal.”  Anyone convicted of a “particularly serious crime” is barred from eligibility for this withholding of removal. 8 U.S.C. §1231(b)(3)(B)(ii).

Judge Alan Pendleton

10th Judicial District


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