Could David DePape Ever Come Back To The United States?

From CNN:?

David DePape, the man accused of violently attacking Paul Pelosi last week, was in the United States illegally and may face deportation, the Department of Homeland Security said late Wednesday.

"'U.S. Immigration and Customs Enforcement (ICE) lodged an immigration detainer on Canadian national David DePape with San Francisco County Jail, Nov. 1, following his Oct. 28 arrest,' the department said.

ICE issues so-called immigration 'detainers' to federal, state, and local law enforcement agencies to inform them that the agency intends to take custody of an individual and requests that ICE be notified before that individual is released.

DePape has been charged with multiple state criminal offenses, including assault, attempted murder and attempted kidnapping. He also faces federal charges, including assault on the immediate family member of a federal official.

In short, David DePape is in big trouble and, if he is found guilty, is looking at hefty jail time. But what does this mean for him from an immigration standpoint?

Deportation/Removal And Inadmissibility

If you are not a US citizen and you get in trouble with the law, you face a justice system double whammy. Your case must first make its way through the criminal justice stream. This can include going to trial and, if found guilty, being incarcerated. At any time until the completion of your sentence, the immigration authorities will have a look and decide whether you are to be removed from the US (also known as being deported) and perhaps found inadmissible (unable to return) to the United States.

DePape's situation is no different. I won't tackle the criminal justice aspects of his case but, assuming he is found guilty, here's the immigration breakdown:

• by committing a serious crime in the United States, DePape could be found?both deportable from the US?and inadmissible to the US even though he is currently in the US.
• if DePape is ultimately convicted of two or more crimes and receives a prison sentence totalling at least five years, this is an independent basis to remove him and prevent him from being readmitted to the United States.
• assuming for our discussion that he is convicted of Aggravated Assault under the California Penal Code, he would be deportable and inadmissible based on having committed a crime involving moral turpitude. This alone would trigger expulsion from the US and prevent him from re-entering the country.
• even without the criminal convictions, once DePape ultimately leaves the US, whether voluntarily or through deportation, he will incur a 10-year bar to reenter the US since he spent more than a year in the country without status, i.e., he was unlawfully present for more than a year. Obviously, this is the least of worries right now.

Can He Ever Come Back?

The only way a person can re-enter the US after being deported/removed or found inadmissible is to apply for a waiver. There are waiver applications available for both deportability and inadmissibility.

If DePape ever applies for a waiver to re-enter the US, he would have to seek a waiver of his inadmissibility under Section 212(d)(3) of the Immigration and Naturalization Act. It may surprise you - and it is admittedly a long shot - but people with hefty criminal convictions can still enter the US at the discretion of US immigration authorities. In other words, this section of the law allows immigration officials to waive inadmissibility grounds.

In order to grant or deny the waiver, immigration officials would conduct a?Hranka?analysis, based on an immigration court case?Matter of Hranka. This case outlines the three legal factors that must be weighed by immigration authorities in deciding whether to grant the waiver:

1. The risk of harm to society if a waiver applicant is admitted to the US.
2. The seriousness of an applicant's prior criminal or immigration violations, if any, and:
3. The nature of the applicant's reason for wishing to enter the US.

For DePape, the seriousness of his alleged crimes, plus the political angle (stating he wanted to confront the Speaker of the House), plus the seriousness of his immigration violation (unlawfully present for 14 years), all make it very doubtful that he would ever, if removed, be permitted to return to the US.

More Information On Inadmissibility

I do a deep dive on the issue of criminal inadmissibility in the video below. Contact me if you have questions.