© 2014 Immigrant Legal Resource Center

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Defending ImmigrantsImmigration Consequences of

Criminal Offenses

Angie Junck, Supervising Attorney ajunck@ilrc.org Immigrant Legal Resource CenterApril 2015

© 2014 Immigrant Legal Resource Center

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Immigrant Legal Resource Center

• National nonprofit based in San Francisco

• On-site training, webinars, policy advocacy, community organizing

• Consultations with Attorney of the Day (contract or one-time fee)– aod@ilrc.org, 415-255-944

• Manual: Defending Immigrants in the Ninth Circuit

• Free listserv for PD immigration point persons

© 2014 Immigrant Legal Resource Center

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Resources, cont’d• Free ILRC Crim/Imm Page at www.ilrc.org/crimes

Includes Defenders Relief Toolkit and §N.18 Additional Resources

• Free ILRC Enforcement, Holds, www.ilrc.org/policy-advocacy/immigration-enforcement

• See also, e.g., www.defendingimmigrants.org, and www.nortontooby.com

© 2014 Immigrant Legal Resource Center

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Topics

I. Why are we here?

II. The Process

III.The Analysis

I. Why Are We Here?

Tale of Two Clients

• LPR, no priors• DV with one year

– Stay-away order– DV counseling

• (What if it was 6 months?)

• LPR, no priors• Battery with careful record

of conviction, one year– Stay-away order– DV counseling

• (What if it was 6 months?)

Responsibility to Noncitizen Client

Padilla v. Kentucky March 31, 2010

Defense duty under Sixth Amendment to advise client of immigration consequences prior to pleading guilty

Informed consideration of possible deportation can only benefit both the State and noncitizen defendants

during the plea bargaining process

II. The Process

A. First Interview

B. Immigration Questionnaire

C. Immigration Analysis

D. Advising the Client

E. Defending the Client

F. At the End of the Case

You may need to slow the case down

A. First Interview

• Tell client you are not ICE. Tell them your conversations about immigration are confidential.

• Tell client part of your job is to advise about immigration consequences of the case, and if the client wishes, to try to defend against bad consequences.

• Ask client about status. Ask client to complete immigration questionnaire (now or later).

• Warn client not to speak to ICE or any official and not to sign anything. Did she sign something already?

B. Immigration Questionnaire

What good might this do? Does your office use

one? If not, what would it take

to make that happen?

See Questionnaire at www.ilrc.org/files/documents/n.16-client_questionnaire.pdf

Investigating the Facts:

• Immigration status• Criminal history• Prior deportations• Family ties– ABA Pleas of Guilty Standard 14-3.2(f), commentary at p. 127

WHO’S A NON-CITIZEN?Immigration Status

Citizens and Aliens

U.S. Citizen (“USC”)

- Not subject to immigration detention or removal

- Not guilty of illegal re-entry or any crime with alienage as element

Who is a U.S. Citizen?

1. USC if born in: US, Puerto Rico, Guam, US Virgin Islands, Northern Mariana Islands (American Samoa, Swains Islands = National)

2. Green card-holder can apply to naturalize to USC

3. At birth, did you have USC parent or grandparent? Acquisition of citizenship.

4. Before 18th birthday, were you an LPR and did one parent naturalize to USC? Derivation of citizenship.

Alien 1: Undocumented

• “Illegal alien,” no papers, sin papeles• In the U.S. without immigration authorization:

• Entered U.S. without being inspected (EWI)• Admitted to U.S. on a visa (e.g. tourist, student,

border-crossing card) but overstayed or violated it

Alien 2: LPRs

• Lawful permanent resident (a/k/a LPR, green card, una mica) usually can live and work permanently in U.S. unless:– Becomes deportable– Travels outside U.S. while inadmissible

• Even a small misdo conviction can make an LPR deportable or inadmissible

• But even a deportable LPR might be able to keep status if waiver or other relief is available

Alien 3: Other• Many other forms of status – and each

with different crim/imm needs. A few examples are:– Asylee, Refugee– Applicant for asylum – TPS (Temporary Protected Status)– Non-Immigrant Visa (Student, Tourist, H-1 worker)– Applicant for adjustment thru family member– Deferred Action for Childhood Arrivals (DACA)– Has employment authorization, doesn’t know why.

C. Immigration Analysis

Imm analysis = individual imm. situation + priors and current charge/s

Use Chart and other materials to research specific offenses and to look up if state law applies

Get expert help if you’re not an expert

What’s At Stake

• If you have status, you can lose it. • If you don’t have it, you can be found eligible

or ineligible to gain status. • If you are subject to removal and do not have

“relief,” you will be ordered removed from the U.S. & barred for a period of time from returning.

What’s Your Role?

How much do you need to know? Must know how to find out the answer Levels of Knowledge– - If you work with immigration adviser, you don’t need

to know everything they know– - If you are the immigration adviser, you need to

continually learn

What are Your Resources?• Expert consultation

• In-House Expert?• Resource center assistance, e.g., ILRC• Find other experts willing to do for free

or cost?• Written resources – ILRC, go to www.ilrc.org/crimes – National written resources:

www.defendingimmigrants.org. – See also www.nortontooby.com

Defender Resources: Charts of Immigration Consequences

CaliforniaOffense

Agg.Felony?

CIMT? Other Deport / Inadmiss?

Advice

P.C. 273.5 Spouse traumatic injury

Yes as COV if 1 yr imposed; Get 364

Yes; see advice

Yes, deportable crime of DV; see advice

Avoid agg. felony by getting 364. To avoid DV and CMT, consider PC 243(e), 236, 136.1(b), 32. See Note: DV

P.C. 243(e) Spousal battery

Divisible: Get 364 and/or plead to offensive touching (or vague)

Divisible; plead to offensive touching

Divisible as deportable crime of DV; offensive touching cures this

Excellent if plead to offensive touching. Vague record still prevents: deportability, maybe bar for relief, but not CIMT

D. Advising the Client

Investigation + crim history + goal = advisement

• Advise on both the clear and unclear consequences of the charge, the offer and any alternate plea dispositions that may be attainable in the case.

*Different Advisement models exist

Responsibility to Client What’s not enough regarding immigration consequences:

• Silence

• “You might be deported”

• “You will be deported” (told to every client)

• The judicial warning, Cal PC § 1016.5

• “Hire an immigration attorney”

• Guessing, common sense (Best to just assume that the crim/imm analysis will be surprising)

• See Padilla v. Kentucky, 130 S.Ct. 1473 (2010)

E. Ascertain Client’s Wishes

• Does the client want to prioritize getting a good immigration result or a lesser criminal penalty?

a) The client goal spectrum

a) Avoid consequences that trigger deportation

b) Preserve eligibility to ask immigration judge to get or keep lawful immigration status

c) Preserve eligibility to obtain future imm. benefit

d) Get out of jail/custody ASAP

e) Immigration consequences not a priority

f) Desire to be deported as part of resolution

F. Defending Against Immigration Consequences

• GOAL is to identify a disposition that meets the criminal penalty requirements of prosecution and judge, while lessening or eliminating the immigration consequences.

Plea Bargaining, Plea, Sentence

• To tell or not to tell? (the prosecutor, judge)

• Goal: Find a plea that satisfies the prosecutor’s goals but is better for immigration

• Some misdemeanor cases might be treated with the seriousness of capital cases, if the immigration stakes are high enough

• No, it is not a violation of Equal Protection for the prosecutor to consider immigration consequences in plea bargaining.

Supreme Court Says It’s Fine!!

• “Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties.”

• Padilla v. Kentucky, 559 U.S. 356, 373 (U.S. 2010)

G. After Case is Resolved

• Document your analysis in your file

• If you created an immigration defense, give the client something about that in writing. Use write-up from your consultant, or see Appendices to California Notes at www.ilrc.org/crimes

• If client must go home, warn about the dangers of illegal re-entry. Advise to try to get voluntary departure rather than removal (must not have an aggravated felony).

• Make sure jail does not wrongly detain him.

III. Analysis

ADIR - Lists of Crimes

• Aggravated Felony 8 USC § 1101(a)(43)

• Deportable 8 USC § 1227(a)

• Inadmissible 8 USC § 1182(a)– Good Moral Character 8 USC § 1101(f)

• Relief – Bar to relief or status?

Aggravated Felony

• Defined at 8 USC § 1101(a)(43)

• Deportation Ground Plus

• Not ground of inadmissibility per se

• Bar to many forms of relief

• ICE can ‘remove’ non-LPR, with no access to Immigration Judge

• Mandatory detention

Aggravated Felony cont’d

Conviction-based AFs

Conviction of

specified offense

Sentence-based AFs

Conviction of specified offense +

sentence of imprisonment of one year or more

Circumstance-specific AFs

Conviction of specified offense +

other factor (e.g. >$10k

loss to victim)

Aggravated Felony cont’d

Some Common Conviction-based

• Murder• Rape• Sexual abuse of a

minor• Drug Trafficking• Firearm Trafficking

Some Common Sentence-based

• Crimes of violence• Theft offenses• Burglary• Obstruction of justice•Perjury •Forgery •Counterfeiting •Obstruction of Justice (includes PC 32)

Some Common Circumstance-

specific• Fraud or deceit offense with loss> $10,000• Certain tax evasion with loss of revenue > $10,000

Immigration Definition of Sentence

• For some offenses, if you can avoid a sentence imposed of a year or more, you can avoid an aggravated felony

• Sentence is defined at 8 USC § 1101(a)(48)(B)

State Sentencing Disposition

Immigration Effect

Suspended Imposition of Sentence

No sentence, except for jail ordered as a condition of probation

Suspended Execution of Sentence

The whole suspended sentence counts

Probation Not a sentence.

Probation violationAdditional custody time ordered for PV is added to original time on the count, to make the total sentence

Sentence Defense Strategies• The year must be on a single count. Nine months on

each of two counts, served consecutively, is not a year

• Probation violation: Plead to a new offense and take the time on that to avoid going over 1 yr on original conviction

• Put off plea, waive credit for time served, and get a shorter “sentence” imposed

See discussion in Defending Immigrants in the Ninth Circuit, or in “§N.4 Sentence,” both at www.ilrc.org/crimes

Exercise 2: Sentenced to one year?

1. Abe got imposition of sentence suspended, 3 years probation, 6 months custody as a condition of probation

2. Betty was sentenced to 1 year

3. Carl got 1 year, execution of sentence suspended

4. David pled to 2 counts, 364 each, to run consecutively

5. Esmeralda got an 8 month sentence, additional 5 months sentence for probation violation

6. Franco got an 8 month sentence, then a new offense 5 months

Deportation Grounds

Crimes, INA 237(a)(2)

• Drug conviction• Drug abuse since

admission

• Agg felony conviction

• Firearms conviction

Inadmissibility Grounds

Crimes, INA 212(a)(2)

• Drug conviction• Current drug abuse (a)(1)

• Admit to drug offense (rarely used)

• DHS has reason to believe trafficked in drugs

• 2 or more convictions of any type, aggregate 5 yr sentence

Deportation Grounds(Crimes)

• DV Conviction

• Civil/crim ct finding viol of DV protective order

• Child Abuse Conviction

• CIMT conviction/s: two since admission, or one within 5 yrs admission if potential 1 yr sentence

Inadmissibility Grounds(Crimes)

• Engaged in prostitution

• Just one CIMT, but -- Petty Offense Exception if one CIMT, potential sentence 1 yr or less, 6 months or less imposed, or -- Youthful Offender Exception

Deportable for Crimes“I have lawful status --

now they can take it away.”

Deportable lawful permanent resident (LPR) can be placed in removal proceedings and removed

Same for refugees, and most people who have secure status

• See 8 USC § 1227(a)(2)

Deportable Undocumented?

Being deportable for crimes rarely harms undocumented persons

–Don’t have status to lose; already removable

• Exception: bars all non-LPR cancellation

• Exception: Mandatory detention based on deportable conviction if the person was admitted (e.g. on a tourist visa)

Inadmissible for Crimes“I need to apply for admission, status, or relief.”

Unless granted a waiver, barred from

• Admission

• Eligibility for some relief, e.g. family immigration, refugee/asylee adjustment, non-LPR cancellation

Therefore undocumented persons, deportable LPRs, and other persons who must apply for status or relief often want to avoid inadmissibility

Inadmissible LPR

• Does being inadmissible affect an LPR who just wants to stay in the U.S.?

• What if the person wants to travel outside the U.S.?

• 8 USC § 1101(a)(13)(C)

Exercise 3: Deportability v. Inadmissibility

• 1. Ali is a permanent resident who is inadmissible for crimes but not deportable, for a conviction from 20 years ago. Can he:

–Be stripped of LPR status if he remains within the U.S.?

– Safely renew green card?

– Travel outside the U.S. and safely return?

Exercise 3

• 2. Barbara is an LPR who is deportable but not inadmissible. Can she:

–Be stripped of LPR status if she remains in the U.S.?

– Safely apply for naturalization?

– Safely renew her 10-yr green card?

–As a defense to removal, apply to “re-adjust status” based on a family visa petition?

Relief• Different applications have different bars:

• Must be admissible for, e.g., family immigration, non-LPR cancellation

• Must establish good moral character for, e.g. naturalization, non-LPR cancellation

• Other applications have other bars, e.g.» 2 misdemeanors for TPS, 3 for DACA »Particularly serious crime for withholding and

asylum»Agg felony for many forms of relief

New Resource

• ILRC Relief Toolkit – It’s Free! Diagnostic Questionnaire (10 minutes to complete);

Two-Page “Eligibility/More Facts” on each form of Relief (LPR cancellation is in your materials)

Relief Chart (in your materials)

Go to• http://www.ilrc.org/files/documents/17._relief_too

lkit_jan_2014_final_0.pdf

Immigration Terms of Art

• Conviction

• Record of Conviction

Conviction

A formal judgment of guilt, orWhere no formal finding of guilt:• If defendant pleads guilty, nolo contendere

or has admitted sufficient facts to warrant a finding of guilt, AND

• The judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

8 USC § 1101(a)(48)

What is Not a Conviction?

• Juvenile delinquency– Juvenile dispositions can still have imm. conseq.

because some immigration consequences are triggered by conduct alone.

– Especially drug trafficking, prostitution, mental illness, vio. of DV order, gangs

• Convictions vacated for legal or error (not for rehabilitative relief)

• Pre-plea diversion, formal or informal

What is Still a Conviction?

• Infraction (depending upon state procedure)• Conviction on direct appeal• Expungements• Convictions dismissed under diversion

programs where a plea of guilty was entered

Importance of Criminal Record in Immigration Proceedings

• Information in the Record of Conviction (ROC) may determine whether noncitizen is removable.– Underlying facts of alleged crimes generally

irrelevant.

• Carefully crafting the ROC is critical to defend a noncitizen against removal.– In particular, attention needed to the factual

basis for the plea.

The Record of Conviction (ROC)

Elements of offense (statute & case law)Criminal charge (information, complaint,

etc. if incorporated into plea – i.e. pled as charged)

Written plea agreement Transcript of plea hearing Transcript of judgment Any document stipulated to as factual

basis for pleaSome other comparable judicial record Jury instructions

The Record of Conviction Does NOT Include:

Police reports, probation or pre-sentence reportsStatements by non-citizen outside of judgment and

sentence transcript (e.g. to police or imm judge) Information related to dropped/dismissed chargesInformation from co-defendant’s case

WARNING: Stipulating to facts in a document not otherwise part of the ROC adds them to the ROC (i.e., stipulation to police reports)

Tips for Crafting Safer ROC

• If possible plead to the specific ‘good’ charge, e.g. transportation for personal use rather than “sale or transportation”

• If not possible, create vague record, e.g. plead to statute phrased in disjunctive

• Amend the complaint to sanitize facts OR if not possible, then strike bad language in the complaint

• Do not stipulate to documents that contain bad info. Draft plea statement or amended charge and stip to that.

Reminder: Free Resources!www.ilrc.org/crimes

www.defendingimmigrants.org

Thank you!