Caught Witness Tampering? Say Sayonara to Permanent Residency - U.S. Second Circuit
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Caught Witness Tampering? Say Sayonara to Permanent Residency

Witness tampering can get you kicked out of the country.

The Second Circuit Court of Appeals ruled this week that a conviction for witness tampering constitutes an "offense relating to obstruction of justice" for removal purposes.

Albert Lloyd Higgins petitioned the Second Circuit for review of a Board of Immigration Appeals (BIA) decision denying his requests for cancellation of removal and a waiver of inadmissibility. The issue in his case was whether a conviction for witness tampering under Connecticut General Statutes § 53a-151 constitutes an "offense relating to obstruction of justice" within the meaning of the Immigration and Nationality Act (INA) listing the aggravated felonies that may disqualify a petitioner from various forms of relief.

Higgins, a citizen of Jamaica, was admitted to the U.S. as a lawful permanent resident in 1987. In 2001, Higgins was convicted of witness tampering.

The conviction originated with allegations that Higgins sexually assaulted a minor, and later told her that, if she ever talked to the police, she should tell them that "nothing ever happened." The jury acquitted Higgins of the sexual assault charge, but convicted him for witness tampering.

In 2009, an immigration judge (IJ) ordered Higgins removed to Jamaica. Both the IJ and, later, the BIA agreed that witness tampering was an offense relating to obstruction of justice, rendering Higgins ineligible for cancellation of removal and a waiver of inadmissibility.

The state law in question, CGS § 53a-151, states: A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.

The Second Circuit Court of Appeals, finding that the law satisfied the requisite mens rea and actus rea elements of an offense relating to obstruction of justice, dismissed Higgins' petition of review.

The courts are taking a restrictive approach in classifying what qualifies as a removable offense. If you have an immigration law client who develops a criminal record, you should prepare him for the likelihood of removability.

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