What, he is a foreigner? 21 Savage a.k.a. Shéyaa Bin Abraham-Joseph.

Sunday, February 10th, 2019
By: Jonathan MontagJ.D.

When I started this blog long before 2001 it had the theme, “What if he was a foreigner?” The concept was to show how celebrity Americans who committed crimes would have ended up – usually deported – if they were not Americans. I apply the same treatment to Mr. Shéyaa Bin Abraham-Joseph who is not an American, having been born in England.

Mr. Bin Abraham-Joseph, or is it Mr. Abraham Joseph or Mr. Abraham or Mr. Joseph (no matter what permutation, I cannot find him in the Immigration and Customs Enforcement (ICE) Locator database of detainees) was arrested by ICE on February 3, 2019. I’ll go with Mr. Bin Abraham-Joseph.

Mr. Bin Abraham-Joseph, as Wikipedia puts it:

… (born October 22, 1992), better known by his stage name 21 Savage, is a rapper, songwriter, and record producer based in Atlanta, Georgia. He gained attention in the Atlanta underground for the 2015 mixtape The Slaughter Tape before attaining nationwide attention following the Metro Boomin collaborative album Savage Mode (2016) and its lead single “X”, as well as his guest feature on the 2016 Drake single “Sneakin’?”.

Abraham-Joseph released his debut studio album, Issa Album, on July 7, 2017. It debuted at number two on the Billboard 200 and gave Abraham-Joseph his first Billboard Hot 100 top 20 song, “Bank Account”. He achieved his first number one single at the end of 2017 with his feature on Post Malone’s “Rockstar”, which has been nominated in two categories at the 61st Grammy Awards. On Halloween 2017, he released the Offset and Metro Boomin collaboration Without Warning. In December 2018, he released his sophomore album, I Am > I Was, which debuted at number one on the Billboard 200 and stayed at number one for two consecutive weeks.

Apparently, Mr. Bin Abraham-Joseph first entered the United States at 7 years old (1999 or 2000), returned to Merry Old England in 2005 for a month and then returned to the United, then at age 13, and overstayed. He apparently suffered a criminal conviction for violating drug laws in 2014, at age 22. The Fulton County, Georgia, district attorneys office is quoted in a statement that the case was sealed under Georgia’s first offender law and that the office “cannot confirm or deny any information about the disposition of the matter.”

His attorneys, however, deny that, though this could be because, as a lawyer asserted, the conviction was vacated. He was apparently arrested because law enforcement was going after someone else, a gentleman named Young Nudy and Mr. Bin Abraham-Joseph was with him at the time.  One more element to this fact stew, Mr. Bin Abraham-Joseph applied for U status in 2017, based on being “the victim of a deadly shooting in 2013.” (Obviously not that deadly of a shooting).

Though allowed to remain in the United States only until some point in 2006, he overstayed (remember, he was 14 years old), which is a removable offense. INA § 237(a)(1)(B).

Once removability is established, the next question is whether he has any relief from removal. The most obvious form of relief is Cancellation of Removal for Certain Nonpemanent Residents, INA § 240A(b)(1), which requires having at least ten years of physical presence, is a person of good moral character during this period, has not been convicted of any of a series of crimes, including drug offenses, and can show exceptional and extremely unusual hardship to a parent, spouse, or child who is a United States citizen or permanent resident.

Having entered the United States last in 2005, he has ten years of physical presence. Certain crimes, like drug crimes, stop the clock on the accrual of ten years of permanent residence, though month-long absences do not (INA § 240A(d)), so he accrued ten years of physical presence counting from 1999, his first entry, until 2014, when whatever-the-drug-thing-was happened. He has a permanent resident mother and three United States citizen children, so depending on their circumstances, may be able to show exceptional and extremely unusual hardship to them.

The final issue is whether the drug incident makes him either ineligible because it shows bad moral character (INA § 101(f)(3) [a drug conviction bars a finding of good moral character]) or because of a drug conviction. It boils down to whether what happened in Georgia amounts to a drug conviction. His attorneys have been arguing in the press and Facebook that his conviction was expunged and therefore of no consequence.

According to Georgia law, O.C.G.A. 42-8-60 (2010):

Probation prior to adjudication of guilt; violation of probation; review of criminal record by judge

(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:

(1) Defer further proceeding and place the defendant on probation as provided by law; or

(2) Sentence the defendant to a term of confinement as provided by law.

and

O.C.G.A. 42-8-62 (2010), which states:

42-8-62. Discharge of defendant without adjudication of guilt(a) Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8-63.1, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.

Thus, under these sections of Georgia law – and I suppose there could be others. I am not a lawyer in Georgia – if a person pleads nolo contendere, i.e., no contest, to an offense, takes probation, and successfully completes it, his case is erased or expunged.

Unfortunately, immigration law is governed by federal immigration law and not Georgia state law. The definition of a conviction under federal immigration law is found at INA § 101(a)(48)(A), which states:

(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

If Mr. Bin Abraham-Joseph pled nolo contendere and accepted the restrictions of probation, notwithstanding how Georgia treats his drug-thing, under immigration law he suffered a criminal conviction and thus lacks the good moral character and his physical presence is cut off for Cancellation of Removal. It also provides an alternative basis for removal, having committed a controlled-substance violation, INA § 237(a)(2)(B). As this statute exempts one offense for 30 grams or less of marijuana, if that was his crime, he would not face removal for it and it would not stop time for Cancellation or bar him from showing good moral character. However, as Georgia law deems possession of less than an ounce of marijuana (30 grams) a misdemeanor, it is quite likely the felony charge was not for 30 grams or less of marijuana, but some other drug or more than 30 grams of marijuana.

That leaves Mr. Bin Abraham-Joseph with U-status relief. U status is for aliens who were the victims of some crimes and suffer as a result. Being shot should satisfy the type-of-crime list as among the crimes are felonious assault, attempted manslaughter, and attempted murder, which sounds like what happens when being shot at. U-relief also requires that the victim cooperate with law enforcement. In a normal case, he would have had to have law enforcement file a form indicating that he did cooperate.  This would be contrary to Mr. Bin Abraham-Joseph’s self-espoused no-ratting-out philosophy.  Of course, consistency of philosophy and action is not a requirement for U status. If he indeed was the victim of a shooting, he would be U-eligible and could have his drug crime waived. INA § 212(d)(14).

Assuming Mr. Bin Abraham-Joseph is eligible for U-status, the biggest problem now is his current detention and removal proceedings. Here we have the classic problem of immigration law, the collision of different laws. The U-status law affords him relief, while the removal laws require his removal. Further, according to INA § 236(c)(1)(B), his drug conviction requires that he be detained. There is some confusion in the law as to whether detention is mandatory if the non-citizen was taken into ICE custody off the street rather than directly from criminal custody. Although this issue is pending at the Supreme Court https://www.supremecourt.gov/oral_arguments/audio/2018/16-1363, the 11th Circuit, Georgia’s circuit, has not ruled that mandatory detention does not apply if the non-citizen was released from criminal custody and not handed over directly to ICE. Thus, unless the Supreme Court changes things, a Georgian immigration court would likely hold that Mr. Bin Abraham-Joseph is subject to mandatory detention notwithstanding his eligibility for U-status relief.

Putting mandatory detention aside for a moment (and the government does have the ability to hold its nose and release people who “should” be mandatorily detained), one way to solve the problem of immediate removability and future relief is to continue the case until a decision is made on the U application. One rub is that it is taking more than four years to decide a U application. [Check processing time for Form I-918]. That would mean seeking long continuance or administratively closing the case. This would be a reasonable solution. Alternatively, an immigration judge might consider terminating the removal proceeding so USCIS could adjudicate the U application. However, before being fired, Attorney General Jeff Sessions forbade immigration judges from granting continuances  or administratively closing cases to await other relief, as well as terminating removal proceedings  even when logic favors it.

A big negative aspect to Mr. Bin Abraham-Joseph’s seeking to remain free in the United States is that if he leaves the United States, his U application remains pending (lots of other types of applications are deemed abandoned if a person departs the United States, even without an order of deportation) and, if granted, he could return as the prior removal, his drug crime, and his being here unlawfully (see, INA § 212(a)(9)(B)(i)(II) are waivable. As he is being removed to a civilized nation, England, and he is a man of means, waiting in England for a U-visa is not as an egregious human rights issue as removing poor Guatemalans, Hondurans, or Mexicans who literally fear for their lives – which occurs daily.

While it is incredibly dumb that a man who in all likelihood will be able to return to the United States either with a U-visa or as a non-immigrant to work and tour, will be compelled to leave the United States to wait for a visa to return. But, no one is arguing that the immigration laws are not dumb. At least I never have. Posted February 10, 2019.


 

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