UPDATE: Since this article was first published, the Toronto Police Service has issued a press release, which appears to confirm that Justin Bieber was charged with a single count of simple assault.  As a result, even a conviction will not result in his inadmissibility to the United States.  Of course, the media has also just reported that the lab results from Mr. Bieber’s sobriety tests have confirmed marijuana and Xanax in his system at the time of his arrest in Florida.  This is more likely to result in his inadmissibility/deportability than his current charges in Canada.

Overview

The media is now reporting that Justin Bieber returned to Toronto and surrendered himself to the Metropolitan Toronto Police (52 Division) at about 7:30pm tonight (Toronto time).  He is expected to be charged with assault in connection with an incident that occurred in Toronto between the late evening on December 29, 2013 and the early morning on December 30, 2013.

At the time, the media reported that a member of Justin Bieber’s entourage had apparently assaulted a limousine driver who was driving the entertainer and several others.  It was unclear whether Justin Bieber was personally involved in the attack but the Metropolitan Toronto Police believed that he was in the limousine at the time of the attack.

In light of this imminent assault charge, it would be appropriate to revisit the issue of Mr. Bieber’s continuing ability to enter the United States if he is actually convicted of assault in Canada.

Assault in Canada

Unlike in the U.S, where criminal law is under the jurisdiction of each state, criminal law in Canada is under federal jurisdiction.  Most criminal offenses appear in the Canadian Criminal Code (“CCC”). [1] The offense of assault appears in CCC 265(1), which states that a person commits an assault when:

1. Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
2. He attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

The maximum penalty that will apply depends on whether the perpetrator uses a weapon, causes bodily harm, or if it is considered an aggravated assault.  However, details of the incident itself are limited so there is no way to determine whether the Mr. Bieber will be charged with simple assault or something more serious.

Applicable Ground of Inadmissibility

As mentioned in my previous blog post, while the grounds of deportability contained in the Immigration and Nationality Act (“INA”) determine when a person may be removed from the United States, the grounds of inadmissibility determine when a person will be prevented from entering the United States.  As Mr. Bieber has now returned to Canada, the grounds of inadmissibility contained in the INA will apply if he seeks to re-enter the United States.

According to INA 212(a)(2)(A)(i)(I), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (“CIMT”) or an attempt or conspiracy to commit such a crime, is inadmissible.  For Mr. Bieber’s assault conviction to result in inadmissibility, it would need to be considered a CIMT.

As I previously mentioned, the definition of “moral turpitude” is extremely vague; it is often very difficult to determine whether a particular offense is a CIMT.  However, “moral turpitude” has been defined by the Board of Immigration Appeals (“BIA”) as an act that that is per se morally reprehensible and intrinsically wrong, so it is the nature of the act itself and not the statutory prohibition of it which makes it a CIMT.[1]

Simple Assault

In the absence of further details, we can probably assume that Justin Bieber will be charged with simple assault.  Assuming that Mr. Beiber is convicted of simple assault, this would fall under CCC 266, which states that every one who commits an assault is guilty of:

1. An indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. An offence punishable on summary conviction.

This is considered a hybrid offense, which means that the Crown (i.e. prosecutor) can elect to treat the case as an indictable offense (i.e. felony) or as a summary conviction (i.e. misdemeanor).

The law is fairly well-established in the United States that simple assault is not considered a CIMT.[2]  Therefore, if he is convicted of simple assault, this should not render Mr. Bieber inadmissible to the United States.

Aggravated Assault, Assault with a Weapon, and Assault Causing Bodily Harm

These more serious forms of assault are a bit more complicated to assess, since the case law is not entirely consistent.  However, in Matter of Perez-Contreras[3], the BIA attempted to summarize these prior decisions and concluded that, for assault to be considered a CIMT, it would need to require intentional or reckless conduct.

Assault with a Weapon and Assault Causing Bodily Harm

If Justin Bieber is convicted of assault with a weapon or assault causing bodily harm, this would fall under CCC 267, which states that every one who, in committing an assault:

1. Carries, uses or threatens to use a weapon or an imitation thereof, or
2. Causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Although CCC 267 provides for enhanced penalties where the assault is committed with a weapon or ultimately causes bodily harm, it is not an element of the offense that the perpetrator act recklessly or intentionally with the objective of causing bodily harm.  Therefore, even assault with a weapon or assault causing bodily harm may not be considered CIMTs.

Aggravated Assault

If Mr. Bieber is convicted of the more serious offense of aggravated assault, it would fall under CCC 268, which states that every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.  It also states that aggravated assault is an indictable offence with a maximum term of imprisonment not exceeding fourteen years.

This more serious form of assault still does not specifically state that it requires reckless or intentional conduct as an element of the offense.  The 9th Circuit specifically considered CCC 268 for the purposes of inadmissibility in Uppal v. Holder.[4]  In that decision, the court concluded that a conviction for aggravated assault under CCC 268 did not require that the perpetrator specifically intend to inflict serious physical injury, or any injury at all.  Under CCC 268, a perpetrator need not even recklessly disregard the risk of bodily harm or endangerment resulting from the assault. Instead, CCC 268 requires only that a reasonable person would know that the assault carries a risk of bodily injury or endangerment, which is a negligence standard.

Based on the above, it would appear that even aggravated assault under CCC 268 would likely not be considered a CIMT.  Therefore, if Justin Bieber is convicted of aggravated assault, it probably will not render him inadmissible either.

Conclusion

I can finally give Justin Bieber some good news.  Although his other conduct might eventually render him inadmissible to the United States, he does not need to worry too much about his assault charge.  It probably will not affect his ability to re-enter the United States.

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[1] R.S.C., 1985, c. C-46.

[2] Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465(BIA 2011).

[3] 20 I. & N. Dec. 615 (BIA 1992).

[4] 605 F.3d 712 (9th Cir. 2010).

UPDATE: Since this article was first published, the media has reported that the lab test results from Justin Bieber’s sobriety tests have confirmed the presence of marijuana and Xanax in his system at the time of his arrest in Florida.  As a result, it appears likely that controlled substances charges will follow.  If he is convicted of such an offense, this will render him deportable (and inadmissible, if he is already outside the United States).  Even pending charges could make things difficult for Mr. Bieber when he tries to re-enter, since United States Customs and Border Protection could question him about his drug use when he applies for admission to the United States.  If he admits to drug use at that time, he can be barred.

Introduction

Canadian entertainer Justin Bieber appears to be receiving a lot of unwanted attention in the media lately and there has been an ongoing discussion regarding whether the United States Government should deport him.  The most recent development has been an online petition at www.whitehouse.gov, calling for Mr. Bieber’s removal from the United States.

As of January 29, 2014, more than 100,000 people have signed the online petition.  As this number has now reached 100,000 signatures, the petition will be reviewed by officials in the Obama Administration and an official response will be issued.

Although the existence (and success) of this online petition is certainly amusing, even when an official response is published, it is unlikely to satisfy the petition’s supporters.  This is because the White House does not have any real authority to deport an individual that it deems undesirable.

Rather than debating whether Justin Bieber should be deported, perhaps it is more appropriate to consider whether he can be deported.  I will endeavor to answer this question below.

Justin Bieber’s Legal Status in the United States

As have been reported by the media, Justin Bieber is currently a non-immigrant alien.  In other words, he is a foreign national (i.e. alien) who does not possess lawful permanent resident status (i.e. a green card) in the United States.

Mr. Bieber appears to hold O-1 status as an alien of extraordinary ability.  An O-1 alien is defined at §101(a)(15)(O)(i) of the Immigration and Nationality Act (“INA”) as an alien who:

has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability.

Of course, all aliens are subject to removal from the United States if they commit certain acts prohibited by the INA, including the commission of specific criminal offenses.

The Alleged Offences

Vandalism (California)

On January 9, 2014, the Police were summoned to Justin Bieber‘s home because a neighbor alleged that the entertainer had thrown as many as twenty eggs at both him and his house, causing $20,000 of damage.  Based on media reports, the Los Angeles County District Attorney’s Office is still considering whether to charge Mr. Bieber with felony vandalism. Vandalism in the State of California is covered by Section 594 of the California Penal Code (“PC”).

The media also reported that, when the Police Searched Mr. Bieber’s residence, they found controlled substances in the home.  However, the drugs were alleged to belong to rapper Lil Za, who was arrested instead of Mr. Bieber.

Driving under the Influence (“DUI”), Driving with an Invalid Licence, and Resisting Arrest without Violence (Florida)

On January 23, 2014, Justin Bieber was charged with DUI, resisting arrest without violence, and driving without a valid license after Miami Beach Police stopped him for street racing.  According to Miami Beach Police, Mr. Bieber admitted to having “consumed some alcohol, and that he had been smoking marijuana and consumed some prescription medication.”  A copy of the arrest affidavit appears online here.

Based on media reports, Mr. Bieber has been charged with DUI, driving with an invalid licence, and resisting arrest without violence.  DUI in the State of Florida is covered by Section 316.193 of the Florida Statutes (“FS”) and resisting an officer without violence is covered by FS 843.02.  Driving with a license that is suspended, revoked, canceled, or disqualified is covered by FS 332.34.

Of course, it is not known whether Mr. Bieber was charged with driving with an expired license (which is not a criminal offense) or driving while his license is suspended, revoked, canceled, or disqualified (which is a criminal offense).  However, at least one media report has stated that he was charged with driving with an expired license.

Mr. Beiber also allegedly made an admission to Miami Beach Police that he had smoked marijuana and consumed prescription medication.  However, he was not been charged with any controlled substance offense as a result of this admission.

Possible Removal for a Crime Involving Moral Turpitude (“CIMT”)

Overview

According to INA §237(a)(2)(A)(i), any alien who: (I) is convicted of a CIMT committed within five years after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed is deportable.  In addition, according to INA §237(a)(2)(A)(ii), any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined and regardless of whether the convictions were in a single trial, is deportable.

The definition of “moral turpitude” is extremely vague; it is often very difficult to determine whether a particular offense is a CIMT.  However, “moral turpitude” has been defined by the Board of Immigration Appeals (“BIA”) as an act that that is per se morally reprehensible and intrinsically wrong, so it is the nature of the act itself and not the statutory prohibition of it which makes it a CIMT.[1] For example, an inherently immoral act such as theft, fraud, sexual assault, or murder would clearly be a CIMT but a simple regulatory offense such as DUI typically would not be considered a CIMT.

Vandalism as a CIMT

Although it is likely that vandalism under PC 594 would not be considered a CIMT, some uncertainty still exists.  In Rodriguez-Herrera v. INS[2], the 9th Circuit found that the crime of malicious mischief in the State of Washington was not a CIMT because one could be convicted for destroying “as little as $250.00 of another’s property with merely an evil wish to annoy.”  However, it could theoretically be argued that vandalism causing $20,000 in damage could have been committed with more than a mere wish to annoy resulting in a finding of moral turpitude.

Since the alleged damage was more than $400.00, it is considered a “wobbler,” which means that the District Attorney could either charge Mr. Beiber with a misdemeanor or a felony (this is similar to a hybrid offense under the Canadian Criminal Code[3]).  Given the amount of the alleged damage, we will assume for the purposes of this discussion that the District Attorney would elect to charge Mr. Beiber with a felony, which may be punished by a sentence of between one and three years.

In summary, although a charge of felony vandalism could be punishable by at least one year of imprisonment, the balance of probabilities suggests that it would not be found to be a CIMT.  Therefore, even a conviction for felony vandalism would probably not result in Mr. Beiber’s removal from the United States under INA §237(a)(2)(A)(i), although one cannot be absolutely certain due to the vague definition of “moral turpitude.”

DUI as a CIMT

In order for a DUI offense to be considered a ground of deportability, it also must be considered a CIMT.  However, the law is well-settled that a simple DUI is typically not considered a CIMT.[4] Therefore, even a conviction for DUI under FS 316.193 should not result in Mr. Beiber’s removal from the United States under INA 237(a)(2)(A)(i).

Driving with an Invalid License as a CIMT

Driving with an expired license almost certainly not considered a CIMT.  Even driving with a license that is suspended, revoked, canceled, or disqualified under FS 332.34 is probably not considered a CIMT.  However, there is at least a small possibility that could be considered an aggravating factor that elevates Mr. Bieber’s DUI offense to a CIMT.

In Matter of Lopez-Meza, the BIA considered a conviction for aggravated DUI in the State of Arizona.  Under the Arizona statute, a person could be found guilty of aggravated DUI by committing a DUI offense while knowingly driving on a suspended, canceled, or revoked license or by committing a DUI offense while already on a restricted license owing to a prior DUI.  Although the BIA acknowledged that simple DUI was not a CIMT, it found that the serious misconduct described in the aggravated DUI offense involved “a baseness so contrary to accepted moral standards that it rose to the level of a CIMT.”

Of course, the Florida statute does not appear to consider driving with a suspended, canceled, or revoked license to be an aggravating factor in DUI cases.  So it is very unlikely that committing a DUI with a driver’s license that is suspended, canceled, or revoked will elevate the offense to a CIMT in the State of Florida.

Resisting an Officer without Violence as a CIMT

Resisting arrest is probably not considered a CIMT; resisting arrest without violence is almost certainly not considered a CIMT.  Therefore, it is unlikely that a conviction under FS 843.02 would result in Justin Bieber’s removal from the United States under INA 237(a)(2)(A)(i).

Removal for an Aggravated Felony

Overview

According to INA §237(a)(2)(A)(iii), any alien who is convicted of an aggravated felony at any time after admission is deportable.  The term “aggravated felony” is defined at INA §101(a)(43) and includes many serious offenses such as murder, rape, and sexual abuse of a minor.  However, the definition also states that “crimes of violence” (“COVs”), as defined in 18 U.S.C. §16, are also considered aggravated felonies if the term of imprisonment actually imposed (regardless of any suspension) is at least one year .  Section 16 defines a COV as “any offense that has an element the use or attempted use or threatened use of physical force against the person or property of another” or “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property against another may be used in the course of committing the offense.”  The state’s designation of the offense as a misdemeanor does not preclude it from being considered an aggravated felony, since federal law controls.

Vandalism as an Aggravated Felony

It is likely that vandalism would not be considered a COV, especially if it consisted of simply throwing eggs at a neighbor’s house.  To ensure greater certainty, it would be in Mr. Bieber’s interests to seek a sentence of less than one year (suspended or otherwise), in the event that he is charged and convicted.

DUI as an Aggravated Felony

DUI has been found not to be a COV, even if it causes serious bodily injury.[5] In addition, the maximum penalty for a first offense is six months of imprisonment; even in the case of a second offense, the maximum penalty is nine months of imprisonment.  Clearly, it is not possible to receive a sentence of one year.  Therefore, a conviction for DUI under FS 316.193 should not be considered an aggravated felony.

Resisting Arrest without Violence as an Aggravated Felony

Although the 9th Circuit has found resisting arrest to be a COV under Arizona law,[6] resisting arrest without violence in the State of Florida is very different, since it only includes conduct where no violence was involved.  Resisting arrest without violence is likely analogous to evading a police officer, which has been found not to be a COV.[7] However, it is a first degree misdemeanor, punishable by up to one year of imprisonment.  To ensure greater certainty, it would be in Mr. Bieber’s interests to seek a sentence of less than one year (suspended or otherwise), in the event that he is convicted.

Removal for an Controlled Substance Possession

According to INA §237(a)(2)(B)(i), any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act[8]), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana, is deportable.  Although at the present time, Mr. Bieber has not been charged with any controlled substance offense, if he is charged and convicted of possession of a controlled substance (either for unlawful possession of prescription drugs or for possession of more than thirty grams of marijuana), he would be removable from the United States.

At the present time, the Miami Beach Police only have his admission that he had smoked marijuana earlier; there is no evidence that any controlled substances were in his possession at the time.  In addition, although controlled substances were found in his California residence, they have been attributed to Lil Za, so it is not likely that he will be charged because of that incident.  As a result, it is unlikely that Justin Bieber will be convicted of a controlled substance offense unless further evidence becomes available.

Admission to Possession of a Controlled Substance

As mentioned above, INA §237(a)(2)(B)(i) applies only to controlled substance convictions.  However, he could still be denied admission to the United States if he leaves and attempts to re-enter the United States.  While the grounds of deportability contained in the INA determine when a person may be removed from the United States, the grounds of inadmissibility determine when a person will be prevented from entering the United States.  These grounds are similar but not identical to each other.

According to INA §212(a)(2)(A)(i)(II), any alien who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance is inadmissible.  Clearly, a mere admission can result in inadmissibility, although there are specific rules governing admissions.

For example, an adequate definition of the offense must typically be provided to the alien who must then admit all of the essential elements.[9] In addition, the admission must typically be made before an immigration officer, although an admission made to a police officer could be sufficient to result in inadmissibility under INA §212(a)(2)(A)(i)(II).[10]

As I previously mentioned when commenting on the potential inadmissibility of Toronto Mayor Rob Ford, since Justin Bieber’s admission of marijuana use to the Miami Beach Police has now become public knowledge, he could have problems seeking readmission to the United States in the future.  Even if his admission to the Miami Beach Police does not satisfy legal requirements for it to be considered a ground of inadmissibility, there is nothing preventing from United States Customs and Border Protection (“USCBP”) from questioning him at length during his next application for entry.  If he then admits to USCBP that he was previously in possession of a controlled substance, he could be denied admission pursuant to INA §212(a)(2)(A)(i)(II), in the same manner as someone who had actually been convicted of such an offense.  At that point, he would not be allowed back into the United States until he obtained a temporary waiver of inadmissibility.

Conclusion

At the present time, it appears unlikely that Justin Bieber could be deported for any of the offenses for which he has been charged.  However, there is a very real possibility that Mr. Bieber could be questioned by USCBP the next time he tries to re-enter the United States.  If he admits to controlled substance possession at that time, he may very well find himself barred from the United States.

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[1] Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994).

[2] 52 F.3d 238 (9th Cir. 1995).

[3] R.S.C., 1985, c. C-46).

[4] Matter of Lopez-Meza, 22 I. & N. Dec. 1188 (BIA 1999).

[5] Leocal v. Ashcroft, 543 U.S. 1 (2004).

[6] Estrada-Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007).

[7] Penuliar v. Mukasey, 528 F.3d 603 (9th Cir. 2008).

[8] 21 U.S.C. 802.

[9] See Matter of J, 2 I. & N. Dec. 285 (BIA 1945), Matter of K, 7 I. & N. Dec. 594 (BIA 1957), and Matter of Amar Kumar Pani, 19 Immig. Rptr. B1-142 (BIA 1998).

[10] Matter of K-, supra.