The BIA released a very interesting decision recently that can have potential immigration ramifications for anybody convicted in our state’s municipal courts. The case is Matter of Roberto Cuellar-Gomez, 25 I&N 850 (BIA 2012). There were several issues before the Board, which arose out of an Immigration Judge’s ruling that the Respondent, Mr. Cuellar-Gomez, was removable on the basis of a conviction for a Wichita, Kansas, municipal ordinance prohibiting marijuana possession. Despite the respondent’s arguments that his conviction in the municipal court did not constitute a State crime, the Board disagreed and held that the township violation not only was a breach of a law or regulation of a State…relating to a controlled substance,” but also that the conviction also served as a predicate offense that allowed DHS to classify the respondent’s subsequent marijuana conviction later on that year, as an Aggravated Felony. The decision is much more complicated than is explained here. The gist here is that one should not assume that one is immune to removability just because a criminal case was disposed of in municipal court. Moreover, pleading guilty to a township ordinance does not necessarily insulate an individual from potential removability. Our municipal courts, following the logic of the decision, are merely extensions of State sovereignty, and as such, so long as procedural due process is given to a criminal defendant in court, convictions for ordinances–which are not ordinarily considered crimes or even misdemeanors–can serve as the basis of deportability, especially when it comes to drug offenses. (Incidentally, this is assuming, of course, that the State charges an individual with an ordinance in the first place, or is willing to downgrade a disorderly persons offense to that of an ordinance–which, these days, is getting increasingly rare.)On a side note, along these lines, convictions for ordinances relating to drug offenses will also probably jeopardize an individual’s ability to seek deferred status under the DREAM deferred action program.
Experience, Accessibility And Excellence For Over 25 Years