Immigration Case Analysis

In Persad v. Barr, 17-661, the United States Court of Appeals for the Second Circuit held that under the military’s traditional unitary sentencing scheme, a military judgment in which a single sentence of confinement is imposed in connection with multiple counts of conviction may not be presumed to be equivalent to equal, full‐term, concurrent sentences as to each count of conviction.

In 1992, while he was enlisted in the US military, Dasrath D. Persad was charged in military proceedings in connection with the theft, while on guard duty, of government property, specifically, two pair of night‐vision goggles, a video cassette recorder (remember this is 1992), and a computer keyboard and the subsequent wrongful disposal of that property.

Persad pleaded guilty to four violations of the Uniform Code of Military Justice. See 10 U.S.C. §§ 801‐946. One of the violations was larceny of military property (a theft offense). See 10 U.S.C. § 921. Consistent with the military’s then traditional practice of unitary sentencing (i.e., imposing a single sentence for all charges and specifications of which an accused is convicted), the military judge issued a general sentence that imposed as punishment for all four of Persad’s convictions a term of 30 months’ confinement, undifferentiated among the four violations to which he pleaded. He was not turned over to immigration authorities.

Almost 20 years later, in a New York State prosecution brought in 2011, Persad, who had been a civilian for many years, pleaded guilty to one count of attempted menacing in the second degree in violation of New York Penal Law §§ 110 and 120.14. For this conviction, Persad was sentenced to 15 days’ imprisonment and was ordered to comply with a two‐year protection order. In the course of the following year, probably prompted by the attempted menacing misdemeanor conviction, the Department of Homeland Security (“DHS”) began to pursue removal proceedings against Persad.

The DHS’ decision to pursue removal proceedings rested on its determination that Persad’s 1992 military conviction for larceny constituted an “aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(G), thus rendering Persad removable. To establish an aggravated felony under that statutory provision, the government must show by clear and convincing evidence that a noncitizen committed a “theft offense” that resulted in a term of imprisonment of “at least one year.” 8 U.S.C. § 1101(a)(43)(G) (Emphasis added).

Remember, the military judge did not link any part of Persad’s total sentence to any individual offense. Rather, consistent with the military’s traditional “unitary sentencing” practice, the judge simply announced the total period of confinement as part of the sentence imposed for the four convictions.

The immigration judge and the Board of Immigration Appeals (“BIA”) determined that.This sentence satisfied Section 1101(a)(43)(G). On petition for review, Persad argued thatthe unitary sentencing scheme employed by the military tribunal precludes the government from showing by clear and convincing evidence that the theft count alone resulted in a sentence of 12 or more months’ confinement.

The 2nd Circuit agreed that the government failed to establish that Persad was convicted of an aggravated felony because it could not demonstrate by clear and convincing evidence that he was sentenced to a term of imprisonment of at least one year for his larceny conviction.

While Persad beat the aggravated felony ground of removal, the 2nd Circuit remanded the case back to the immigration judge to determine whether Persad is removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having committed two or more Crimes Involving Moral Turpitude (“CIMT”), another theory of removal.