An appeal of several lower court immigration decisions concerning whether a woman from Jamaica who came to the United States legally could stay in the country eventually turned out unfavorably for her. Four years after she came to the country in 1985, she was charged with certain retail theft offenses in Pennsylvania for which she received a sentence which could range from three to twenty-three months as a repeat offender when she tendered a plea to misdemeanor theft. Under 8 U.S.C. § 1229b(a) of the Federal Code, conviction of an aggravated felony is a ground for mandatory removal of the person convicted, where that person came to the United States on a temporary visa.
The United States sought to have her removed from the country on the basis that her conviction did constitute such an aggravated felony. Initially the Immigration Judge ruled her convictions did not fall in that category rejecting the argument that these offenses were convictions involving moral turpitude. The Judge concluded that she was eligible for cancellation of her removal status as the Government failed to meet its burden of establishing these offenses actually were aggravated felonies.
But on appeal the Board of Immigration Appeals initially found and later the United States Third Circuit Court of Appeals agreed that lower rulings should be reversed. The BIA ruled that (i) Ms. Dempster had not met her burden of showing that she had not been convicted of an aggravated felony and (ii) the shoplifting convictions had "stopped time" on her aggregate presence in the United States for the purposes of cancellation relief. She asked that the case be reconsidered and even added an additional ground for relief, arguing that she deserved asylum because she feared returning to Jamaica. The appellate courts rejected that argument on the ground it should have been raised during her initial challenge to the removal petition. These courts also concluded that the burden of showing her conviction was not an aggravated felony fell on Ms. Dempster and that designations of what constitutes an “aggravated felony” are not merely determined by referring to state law. Accordingly, the Court of Appeals in Dempster v. Attorney General of the United States, Nos. 13-2431, 13-3273 (3rd. Cir US Ct. App. 2014) found she is subject to removal from the United States.
Although the opinion specifically states it should not be cited for precedential purposes does underscore the importance of preparing all possible arguments at the earliest stages in these contested proceedings. Also it reiterates the importance of temporary residents exercising great care when tendering a guilty plea in a criminal case and seeking legal advice from experienced counsel who can warn them accurately of the consequences of having certain convictions of their record.
The Shulman Law Group endeavors to ensure its clients be kept abreast of all significant developments relating to the process of naturalization to the United States. Edward Shulman, Esq, founder of The Shulman Law Group, LLC is a national speaker for the American Immigration Lawyers Association (AILA). AILA is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, and to advance the quality of immigration and nationality law and practice.