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Immigration Judge: D.C. Felony Threats Offense Not Aggravated Felony or CIMT

An Arlington Immigration Court judge granted my motion to terminate removal proceedings against my lawful permanent resident client, saving him from losing his green card and being deported with virtually no possibility of ever returning to the United States.

My client, a lawful permanent resident since 2008, was arrested and detained by ICE earlier this year for a 2012 felony conviction in the District of Columbia, when he was just 19 years old. For that conviction – “Threatening to Kidnap or Injure a Person or Damage His Property” – my client received a 24 month suspended sentence (i.e. no active jail sentence). DHS charged him as removable on two grounds – under Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA) for a crime involving moral turpitude (CIMT) committed within 5 years after admission; and under Section 237(a)(2)(A)(iii) and Section 101(a)(43)(F) of the INA for an aggravated felony crime of violence for which the term of imprisonment imposed is at least one year.

On its face the charge sounds among the most grave imaginable, but in crimmigration things are not always as they seem. In order for a criminal offense to be considered a CIMT, the crime, by its elements, must rely upon “morally reprehensible” conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness. And to be considered an aggravated felony “crime of violence” the offense must either have as an element the use, attempted use, or threatened use of physical force against the person or property of another, or if it is a felony, and by its nature it involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

In this case, while DC’s statute sounds scary, it turns out that the necessary proof for conviction is not so scary. The elements (or required proof for conviction) are 1) the defendant uttered words to another person, 2) the words were of such a nature as to convey fear of serious bodily harm or injury, and 3) the defendant intended to utter the words.  This means that the statute does not require “specific intent” or even anything approaching it. The defendant need not have intended to threaten anyone, he need not even know that his words would be taken as a threat.

Without an intentional, or even knowing, mental state, the offense is not a crime involving moral turpitude. Likewise, because the offense does not rest upon conduct that involves the actual use or even truly threatened use of violence, the crime is not a crime of violence.

We presented these arguments (obviously in much greater detail) to the Immigration Judge in a 10 page brief, and within a week, despite the serious charges alleged, the Immigration Judge granted our motion to terminate and my client was released from custody.

People make mistakes, especially when they are young like my client was. I am proud to have been able to give my client the second chance he deserves.

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