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A properly amended conviction can make you eligible for a greencard!

Posted by Christopher Keen | Jun 30, 2018 | 0 Comments

In Utah, there is a favorite conviction that many attorneys suggest to their clients as an alternative to other charges.  Disorderly Conduct, Utah Code Annotated 76-9-102, can be a class C Misdemeanor or an infraction.  This conviction in no way triggers inadmissibility under the Immigration and Nationality Act, and let's you remain eligible to adjust status to that of lawful permanent residence.  Utah's statute of conviction for Disorderly Conduct is not a crime of moral turpitude, and even if it were, would qualify under the petty offense exception.  

Utah's Disorderly Conduct is not a Crime of Moral Turpitude.

Generally disorderly conduct is not a CIMT where there is no evil intent in the statute. See Matter of S-, 5 I. & N. Dec. 576 (BIA 1953); see also Matter of Kourn, 21 I&N Dec. 1041, 1046 (BIA 1997). There is no intent written into the Utah Statute and therefore cannot be a CIMT.  In Utah, where no intent is listed in a statute, the default mens rea includes reckless conduct.  Utah Code Ann. 76-2-102.  Reckless intent generally is not a sufficient mens rea to support a finding of moral turpitude in a criminal statute.  Id. 

Even if the offense were a Crime of Moral Turpitude, the offense qualifies as a petty offense exception.

Even if an applicant for adjustment of status has a conviction for a crime that involves moral turpitude, the petty offense exception acts to automatically waive some crimes of moral turpitude.  These petty offenses cannot trigger inadmissibility under I.N.A. 212(a)(2).  If an offense carries a sentence of six months or less in jail jail time, and the maximum possible sentence is one year or less, the offense will be a petty offense and not trigger inadmissibility.  Utah's Class C Misdemeanor punishment carries a maximum penalty of 6 months in jail, thus categorically it will be a petty offense.    Utah Code Ann. 76-3-204(3). 

When an initial conviction to possession of a controlled substance and possession of paraphernalia were vacated on Constitutional grounds, and the charge was properly amended to Disorderly Conduct, the crime no longer will prevent you from adjusting status.

Let's assume that one was convicted of a controlled substance charge, and of possession of paraphernalia.  Let's assume that at the time, the plea was not a knowing and voluntary plea, as required by the U.S. and Utah Constitutions.  If the State Court judge orders that the charges be amended nunc pro tunc to disorderly conduct, then that can cure inadmissibility.  The law is clear that when a conviction is voided and amended on Constitutional grounds due to defect, then that vacatur will be given effect.  Matter of Pickering.  23 I&N Dec. 705 (BIA 2003).  Even if the offense were not vacated on proper grounds, a sentence amendment must be given effect, no matter the reason, even if for immigration purposes.  Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005); Matter of Song, 23 I&N Dec. 173 (BIA 2001). 

 There are alternatives that can be negotiated in a criminal proceeding.  Not all prosecutors and judges will agree to such an amendment, but some will.  

About the Author

Christopher Keen

As the founding attorney for Keen Law Offices, LLC, J. Christopher Keen received a Bachelor of Arts degree in History from Brigham Young University. He then went on to receive his Juris Doctor degree from J. Reuben Clark Law School at Brigham Young University. Since that time, he has been admitted to practice before all of the state courts in Utah.


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