Court Tells Immigration Board to Make a Call

MANHATTAN (CN) - U.S. immigration officials must pin down guidelines for deporting immigrants who conceal felony convictions, the 2nd Circuit said.

"We do so because we believe that the Board [of Immigration Appeals] should have the opportunity to act first, and because we would benefit from the board's precedential opinion," Judge Guido Calabresi wrote for a three-person panel.

The case stems from the impending deportation to Venezuela of Maria Lugo, who came to the United States in 1996 but overstayed her visa.

Unaware that a guilty plea could jeopardize her immigration status, Lugo says she pleaded guilty in 2005 to concealing a felony conviction stemming from her activities running heroin with her now-ex-boyfriend.

A Brooklyn court gave the woman time served and a $100 fine.

Homeland Security ordered her removed in January 2007.

Immigration Judge Vivienne Gordon-Urakapa spiked Lugo's appeal in March 2011, citing a previous decision by the Immigration Board in 2006 that misprision, or concealment, of a felony is a "crime involving moral turpitude" (CIMT) that automatically stops the clock on the 10-year "continuous physical presence" requirement for cancelation of removal.

The judge ordered Lugo, who has American-born children, return to Venezuela and the appeals board affirmed.

Intervening Thursday, the 2nd Circuit stayed Lugo's deportation and remanded the case because for the board to set precedent on the issue Lugo's case presents

"The case raises a series of questions we believe are best addressed in the first instance by the board in a precedential opinion," the opinion states.

In 1966, the immigration board held that misprision of felony was not a crime involving moral turpitude. The 11th Circuit, however, took a different opinion in 2002 and found that it is.

Though the immigration board adopted the 11th Circuit's interpretation, the 9th Circuit came to a different conclusion in 2012, saying that concealment of a felony is not a crime involving moral turpitude.

"We are thus left to wonder whether, going forward, the board wants to adopt the 9th Circuit's rule or the 11th' Circuit's," Calabresi wrote in the six-page opinion. "We believe it is desirable for the board to clarify this matter in a published opinion."

If the board decides to find that concealment of a felony is a crime of moral turpitude, it must then determine if that rule is impermissibly retroactive, the court noted.

"The board took the wrong approach to this question," Calabresi wrote.

"It is irrelevant whether the statute terminating an alien's 'continuous physical presence' upon commission of a CIMT was enacted before Lugo's misprision of felony conviction, because the board decision that classified that offense as a CIMT was handed down only after her guilty plea," he added.

The board also needs to determine whether whatever rule it picks "presents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law," Calabresi said.

The noted as well that the board issued an unpublished opinion in 2004 before Lugo's guilty plea that found that concealment of a felony was a "categorical" crime of moral turpitude.

"This opinion, however, contained explicit language establishing that it was not precedential," the panel said.

"Accordingly, we ask the board to address whether defendants should be treated as warned by opinions marked as non-precedential in the face of published board precedent to the contrary," Calabresi said.

Also to be addressed is whether Lugo knew from her attorneys that her guilty plea could lead to deportation.

"We value and look forward to receiving the board's considered precedential opinion," Calabresi wrote.

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