University of Miami Immigration Clinic Does Good!

 
The Immigration Clinic of the University of Miami School of Law, directed by Professor Rebecca Sharpless, sought guidance from USCIS about whether certain criminal dispositions constitute misdemeanors within the meaning of the Temporary Protect Status statute and regulation. Last week, USCIS issued guidance stating that a conviction in which criminal court had certified that the defendant would receive no jail time does not constitute a misdemeanor for TPS eligibility.

The Clinic had requested guidance because Florida courts routinely certify in minor cases that the defendant will not receive any jail time, thus taking away indigent defendants’ right to an attorney at government expense.  Because the TPS regulation specifies that a misdemeanor is a crime “punishable by imprisonment for a term of one year or less,” there was an argument that convictions obtained after a “no jail” or “no incarceration” certification fell outside the TPS definition of misdemeanor.

In its January 21, 2011 guidance, USCIS agrees with this position. The guidance states:

“The Department has concluded that a Florida “no jail” or “no incarceration” certification . . . fundamentally changes the maximum possible sentence for an offense by removing the possibility of incarceration for that offense. As a result, the Department has further concluded that an offense with such a certification . . . does not meet the definition of a misdemeanor under 8 CFR 244.1 because it would not constitute an offense punishable by imprisonment.”

The guidance goes on to remind TPS adjudicators that “they are to request USCIS counsel to review any case where it appears that the applicant may be ineligible for TPS on the basis of two misdemeanors” and cites to its previous guidance about certain New York infractions (a result of advocacy by NYU’s Immigrant Rights Clinic).

KJ