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Crime of Moral Turpitude in Immigration Court and Record of Conviction

February 25, 2014

Author: Criminal Immigration attorney Alena Shautsova

Crime of Moral Turpitude in Immigration Court and Record of Conviction

Conviction of crime of moral turpitude may cause a permanent resident to be deportable if committed within 5 years from the date of admission.  (Date of admission is the date when an alien was admitted to the US or paroled, but does not restart when an immigrant adjusts his or her status as per Matter of ALYAZJI, 25 I&N Dec. 397 (BIA 2011)).

However, what a crime of moral turpitude is, is decided in almost every case separately. Why? Because the term of “crime of moral turpitude” is a term of art.  The Immigration and Nationality act does not provide a definition to it, and courts look at the conviction to determine whether  a particular offense falls under the category of a CMIT.

In doing so, the courts follow the following analysis: first, they look at whether the statute a person was convicted of is divisible or not divisible. A statute is not divisible when it describes only one way to commit a crime. If the statute sets out a list of alternative ways to commit the crime, and where some of these “sub-violations” categorically meet the federal standard while others do not necessarily meet this federal standard, then the statute is divisible.  A statute categorically meets federal standard when every violation of a particular criminal statute meets the generic federal definition.

If a non divisible State statute mimics the Federal definition, there is no reason to look at the record of conviction: the person will be found guilty of crime of moral turpitude for Immigration purposes. If not, the State statue includes acts that will not be punished under the Federal law, then the person will be “off” federal hook for Immigration purposes.

As for divisible statute: most likely the court will look at the record of conviction, which consists of criminal charge, the plea agreement, and any plea or sentencing colloquy. The record of conviction does not include arrest reports, the pre-sentence investigation, the testimony of witnesses, etc. Shepard v. U.S., 544 U.S. 13 (2005); U.S. v. Kovac, 367 F.3d 1116, 1120 (9th Cir. 2004).

In addition, currently, in several Circuits the courts are permitted to look beyond the record of conviction to see if the person committed a CMIT under the Matter of Silva-Trevino.  This might present a problem for an immigrant who, essentially, will have to be re-tried in Immigration court for the same conduct he was tried in criminal court in. The court may look at any necessary and appropriate evidence to determine whether the foreign national’s conduct did, in fact, involve moral turpitude.

If you have questions regarding Immigration court proceedings, call office of Alena Shautsova 917-885-2261.


January 27, 2014


Author: New York Immigration attorney Alena Shautsova

According to the laws of the US, when an employer is hiring an employee, the employee must fill out I-9 form: this form helps an employer to determine if the potential employee has a proper employment authorization and may accept employment in the US. The form consists of simple questions and check boxes and one of those check boxes asks the filler to answer if he/she is a US citizen or US national. Of course, answering YES or checking off this box will mean that the person who is filling out the form has the proper documentation to work in the US.

Many immigrants without employment authorization are tempted to check off that little square “Citizen or National of the US.” However, many of them ignore the drastic consequences.

This happened in the case of  Nyabwari. She entered the US on a visa, overstayed it, and later married a US citizen. She though she would have no problem receiving her green card. Indeed, many with the same situations can got citizenship.

However, the government learned that at some point in time, while in the US, Mrs. Nyabwari was working illegally, and to make the situation worse, the government discovered that Mrs. Nyabwari submitted form I-9 to her employer stating she was a US citizen or US national.

Mrs. Nyabwari’s explanation that she did not understand who the national was, did not help her. Both,  Immigration judge and the Board of Immigration Appeals said that checking  off that one box caused Mrs. Nyabwari to be PERMANENTLY inadmissible into the US, as this was a violation of the US laws for which there is no waiver.

The end of Mrs. Nyabwari’s immigration saga is very sad: she will likely to have to leave the country permanently or to stay in the US illegally forever. This serves as a great lesson: if you in doubt, you must consult an attorney to avoid “deporting” yourself before your time.




November 21, 2013


Who is eligible?

Spouses, Children and Parents of

  • Active duty Members of the U.S. Armed Forces
  • Individuals in the Selected Reserve of the Ready Reserve
  • Individuals previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve

The eligible individuals should not have criminal convictions and should submit the following documents:

  • Application for Parole on USCIS form I 131
  • Evidence of the family relationship
  • Evidence of the family member  belongs to the eligible group of the U.S. Armed Forces
  • Evidence of the additional favorable factors

Call Alena Shautsova, New York Immigration lawyer to get FREE PHONE CONSULTATION REGARDING PAROLE IN PLACE RELIEF: 917-885-2261

When ICE Agents’ Actions Can Cause Dismissal Of Immigration Charges?

October 22, 2013

When ICE Agents’ Actions Can Cause Dismissal Of Immigration Charges?

Author: Deportation attorney Alena Shautsova

How many of you think that ICE agents (Immigration and Custom Enforcement Agency) have power to do whatever they want? How many of you have heard stories that they come to a home at 5 am and search the premises and “pick up” illegal immigrants? How many of you think it is legal?

Well, the ICE officers can come to non-citizen’s home, but they still have to confirm their actions to the Constitutional norms and do not have a carte blanche to do whatever they want even if the non-citizen is an undocumented worker. This principal was one more time confirmed by the recent BIA decision in Matter of Ixpec-Chitay, 9/16/13.
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DHS Burden In Removal Proceeding

October 2, 2013

Possession of Controlled Substance: DHS Burden In Removal Proceeding

Author: Immigration Attorney Alena Shautsova

Removal proceeding is a government initiated procedure to “send” somebody who is not a citizen to their home country or the country designated by the government. The other name for these proceedings is exclusion or deportation proceedings (the name actually depends on the time when the proceedings were initiated, as the name has changed as the laws changed).

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Claiming US Citizenship

August 20, 2013

Claiming Us Citizenship: Consequences

Author: New York Deportation Attorney Alena Shautsova

Claiming US citizenship is one of the Immigration law offences which will make a non -citizen permanently inadmissible and on top of that may also cause criminal charges be filed against the person.

Immigration law waivers may waive a variety of immigration law violations, including waiving consequences of certain criminal offences. However, there is a provision in Immigration and Nationality Act, that makes a claim of US citizenship to be a permanent and inexcusable immigration law offense which caused inadmissibility and/or deportation.

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Voluntary Departure

July 2, 2013

Voluntary Departure: To Take or Not to Take?

Author: New York Immigration lawyer Alena Shautsova

Voluntary departure is a relief from removal during which allows its beneficiary to depart the United States without an order of removal being entered against him/her. Many undocumented immigrants, especially those who happened to be in immigration proceedings for the first time, agree to sign the “VD” order without really understanding the drastic remedies that stood behind for failure to depart.
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Defenses Against Removal And ICE Hold

May 13, 2013

Author: New York Deportation attorney Alena Shautsova

You just learned that your loved one was arrested and ICE put a hold on him/her. What do you need to do?

The first thing to do would be to consult with Criminal defense and Immigration attorneys. Very often, when an undocumented person or a permanent resident get arrested for criminal charges, the immigration authorities file an Immigration detainer: a document stating that upon release from the State or Federal custody, the person should be held up to 48 hours for ICE to come and take the person into their custody as they have a reason to believe the person is removable from the US. Most of the time, the basis for removal will be the pending criminal charges, which if come true (if the person is convicted or pleads guilty to them) will also become a problem under immigration laws. (See INA 212 and INA 237 for the list of offences that may render a person inadmissible or deportable).
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Facing Deportation, Detained or Released?

April 3, 2013

When Facing Deportation, What Determines Whether You Are Detained or Released?

Author: Deportation lawyer Alena Shautsova

The Department of Homeland Security (DOHS) weighs two main factors when deciding whether to detain or release an immigrant who faces deportation: flight risk and risk to the community. The most heavily weighed factor is risk to the community, which aligns with the Immigration and Customs Enforcement (ICE) memorandum that addresses prosecutorial discretion and the focus on deporting immigrant criminals over immigrants with other violations. Those immigrants with aggravated felonies are top priority for detainment. ICE has limitations on how many immigrants it can detain, because it has 34,000 detention beds nationwide. Recent sequestration budget cuts resulted in ICE releasing detainees.
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