Monday, June 7, 2010

Buffalo Sabres NHL Prospect Zack Kassian Skates into the "Culture of No"

Over the weekend I read an article about the Buffalo Sabres recent draft choice Zack Kassian, a citizen of Canada, who has managed to get himself into a bit of trouble up in Windsor, Ontario. It has been reported that the 13th overall pick in the 2009 NHL Entry Draft has been charged with "common assault," stemming from an alleged bar fight.

What I found to be the most disturbing part about the article was not that another sports star found himself in the paper for something other than his athletic ability, but that the article contained another example of the "culture of no" that is symptomatic of the enforcement of our U.S. immigration law.

Specifically, the crux of the article is that, because Kassain has a pending assault charge against him, he is inadmissible from the United States, and that he may not be permitted to enter the United States in the future because any assault conviction would render him inadmissible.

The article quotes Chief Ron Smith of U.S. Customs and Border Protection who stated that:

"If an individual has an assault charge on their record, they’d be found inadmissible into the United States, . . . There are ways to mitigate that, primarily through the Department of State, which issues visas. But under normal circumstances, initially, the individual would be inadmissible in the United States for the assault charge.”

With all due respect to Chief Smith, he is wrong on both the law, and on the procedure. All assault convictions do not render an individual inadmissible from the United States. To the contrary, in most instances, simple assault does not constitute a crime involving moral turpitude that would have any immigration consequences. See Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992); Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989).

The reason for this is that in most jurisdictions you may be convicted for simple assault without having any evil intent, depraved or vicious motive, or corrupt mind that is normally associated with crimes involving moral turpitude. See Matter of J-, 4 I&N Dec. 512, 514 (BIA1951); Matter of J-, 4 I&N Dec. 26, 27 (BIA 1950); Matter of O-, 3 I&N Dec. 193, 194-95 (BIA 1948).

That being said, a conviction for a more serious assault may render an individual inadmissible if the underlying conviction includes an aggravating circumstance, such as, but not limited to, the intent to cause serious bodily harm, or if the assault included a dangerous weapon. Matter of Solon, 24 I & N Dec. 239 (BIA 2007) [A conviction under New York Penal Code § 120.00(1) is a crime involving moral turpitude because the assault must include both the specific intent to cause physical injury.]

In order to determine if an assault conviction has immigration consequences you must look to the language contained in the underlying criminal statute which differs by jurisdiction. Parenthetically, it makes no difference what crime an individual has been charged with, but rather what an individual is ultimately convicted of.

If Mr. Kassian is convicted for an offense that renders him inadmissible to the United States that does not mean that he will NEVER be allowed into the United States. There is a waiver that is available that would enable him to be admitted, which requires a balancing of several factors as well as an exercise of discretion.

The Sabres would be best served to get Kassain's Canadian criminal defense attorney in touch with a United States immigration attorney that has experience in inadmissibility issues prior to entering into any plea negotiations.

As for the procedure for applying for the waiver, Chief Smith shoots the puck wide of the net again. The United States Department of State would ONLY be involved with Mr. Kassian's waiver application if he were applying for it in conjunction with a visa application. As a citizen of Canada, Kassian would not need a visa in most instances so long as he has advance approval from U.S. Citizenship and Immigration Services when applying for admission to the United States, and if the waiver was approved by the Attorney General.

The moral of the story is this: don't get your immigration advice from employees of Customs and Border Protection.

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