Microsoft PowerPoint - Post conviction trainings - March 2012for the Appellate Attorney
CPCS Immigration Impact Unit
Post Conviction Relief
Immigration status
Pending charges
Post Conviction Relief
Topics of Discussion
Post Conviction Relief
A formal judgment of guilt or
Where adjudication withheld: 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 U.S.C. § 1101(a)(48)
Massachusetts Disposition
Juvenile Dispositions
A finding of delinquency is not a conviction for immigration purposes
A youthful offender adjudication may be a conviction for immigration purposes
Some grounds of inadmiss/deport don’t require a conviction, so juvenile dispositions can still have imm. conseq.
Sentence
incarceration whether committed or suspended.
EX: A 2 year sentence of imprisonment, 6 months to serve, the balance suspended for 1 year = a 2 year sentence of
imprisonment.
Examples of Crimes Involving Moral Turpitude
• murder, manslaughter, assault to rob or kill, ADW, ABDW, most agg. assaults
• rape, indecent assault and battery, prostitution, failure to reg.
• arson, robbery, malicious destruction, larceny, shoplifting, any type of fraud or theft (with intent to permanently deprive)
NOT Crimes of
Post Conviction Relief
Types of Consequences
Removal of person who had been lawfully admitted to U.S.
Removal of person seeking adjustment to permanent resident
Denial of admission Bar to naturalization Loss of visa or temporary legal status Denial of asylum
Inadmissibility v. Deportability
If client has been lawfully admitted to the U.S. (LPR, Visa, etc.), may be charged with grounds of deportability (e.g., loss of status) pursuant to 8 USC 1227.
If client is seeking entry or lawful admission to the U.S., may be charged with grounds of inadmissibility (bar to obtaining an immigration benefit) pursuant to 8 USC 1182.
Primary Crime-Related Provisions of Immigration Law
8 USC 1182(a)(2) – grounds of inadmissibility
8 USC 1227(a)(2) – grounds of deportability
8 USC 1101(a)(43) – aggravated felony statute
Grounds of Inadmissibility and Deportability
Inadmissibility (8 USC 1182) Deportability (8 USC 1227)
Crimes involving moral turpitude Crimes involving moral turpitude
Controlled Substance Offense Controlled Substance Offense
Prostitution related offenses
Firearms offenses
Crime Involving Moral Turpitude
A person is inadmissible based on 1 crime involving moral turpitude
Petty offense exception: One crime committed when under 18 years old and at
least 5 years before admission or Maximum possible penalty is one year or less and
sentence is 6 months or less
Inadmissible Offenses:
Controlled Substances
• Violation of any law RELATING TO controlled substances
• Any alien who the AG has reason to believe is a drug trafficker.
Inadmissible Offenses:
Inadmissible Offenses:
Multiple Offenses
Multiple offenses - 2 or more convictions for which aggregate sentence is more than 5 years
Deportable Offenses:
Crime Involving Moral Turpitude
One CIMT within 5 years of admission, where a sentence of at least one year may be imposed
OR
Two CIMTs at any time, not arising out of a single scheme of criminal misconduct
Deportable Offenses:
- Except 1 offense of 30 grams or less of marijuana
- Includes conspiracy or attempt
Deportable Offenses:
Firearm Offenses
Includes a conviction for any crime of buying, selling, using, owning, possessing or carrying any firearm or destructive device
Includes conspiracy and attempt
May also include crimes for which possession or use of a firearm is an element of the offense
Deportable Offenses:
Domestic Violence
Includes conviction for: Crime of domestic violence Stalking Child abuse Child neglect Child abandonment or Violation of criminal or civil protective orders
Aggravated Felony
To be avoided at all costs! 8 U.S.C.1101(a)(43) – federal statutory
definition Minor offense can be AF Misdemeanor can be AF
Aggravated Felony
Consequences
• Nearly automatic deportation • Permanent exile from the U.S. • Bar to almost every form of
relief from deportation • Mandatory detention.
Aggravated Felony cont’d
minor • Drug Trafficking (any
Common Sentence- based
• Crimes of violence • Theft offenses • Burglary; B&E in a building. •Witness Intimidation
Topics of Discussion
Post Conviction Relief
PCR
Revise and Revoke
Rule 29 motion is used when the sentence, not the conviction, is what has caused immigration problems.
Ex: A&B with a 1 year sentence is AF
A&B with 364 day or less sentence is not AF
Revise and Revoke
A motion to revise and revoke shall be granted if “it appears justice has not been done.”
Must be based on facts that existed at time of original sentencing
Revise and Revoke
Motion and affidavit must be filed within 60 days of sentence
or loss of appeal
Commonwealth v. Stubbs,
Commonwealth v. Dejesus,
2001)
Used when the conviction itself causes immigration consequences
EX: conviction for distribution of a controlled substance
Where do Padilla motions come from?
Padilla v. Kentucky, 130 S. Ct. 1473 (2010)
6th A duty to advise client of immigration consequences prior to pleading guilty
Failure to advise is ineffective assistance of counsel!
Padilla motion requirements
Padilla applied the two-prong test for IAC established in Strickland v. Washington, 466 US 668 (1984) and adopted in Commonwealth v. Saferian, 366 Mass. 89, (1974):
Deficient performance (counsel’s representation “fell below an objective standard of reasonableness.”)
Prejudice (“but for counsel’s unprofessional errors, the result of the proceeding would have been different.”)
Deficient Performance
What is deficient performance? Affirmative mis-advice Failure to give specific advice (no general warnings)
How to show deficient performance? Affidavits showing
Counsel’s failure to inquire about immigration status Counsel’s mis-advice That counsel gave only very general warnings (i.e.
read the green sheet)
Affidavit of Trial Counsel
Prejudice
D must show that but for counsel’s deficient performance, the proceedings would have
been different.
How do you show prejudice?
D must aver that he would have rejected the plea and gone to trial.
and D must show it would have been rational to reject the
plea bargain due to: - Substantial ground of defense that would have been
pursued at trial; - Reasonable probability that a different plea bargain
could have been negotiated; or - “Special circumstances” that show D placed particular
emphasis on immigration consequences. Commonwealth v. Clarke, 460 Mass. 30 (2011)
What you must know to screen for a Padilla motion
Client’s status at time of plea Client’s prior record Charges to which client pleaded guilty Whether client received immigration advice. If
so, what was the advice?
Other issues raised by Padilla
Retroactivity?
What if the client went to trial?
Alien Warnings - 278 §29D motion
Were the warnings given?
consequences about which he was not warned?
Was the warning given as required by 278/29D?
“Presumption of regularity“ does not apply because G.L. c. 278, §29D explicitly states that absent a record that judicial warnings were given, the defendant is presumed not to have received them.
Commonwealth v. Grannum, 457 Mass. 128 (2010)
Reconstructing the record
Post-2004
•Not allowed to reconstruct the record
“May have or has had consequences…”
Defendant must prove that he faces more than a hypothetical risk that one or more of the enumerated consequences will occur.
- Commonwealth v. Berthold, 441 Mass. 183 (2004) - Commonwealth v. Grannum, 457 Mass. 128 (2010)
Suffering the consequences…
Deportation
• Statutory cites NOT enough • ICE detainer • Notice to Appear • Order of Removal • “Express written policies” of
the federal government
Suffering the consequences…
Intent to travel
Intent to apply for
natz
Gautreaux
Failure to contact consulate could be grounds for a rule 30 motion.
Problem will be showing prejudice Don’t know of any cases arguing this yet
Other Issues
Habeing a defendant into court from immigration custody for motion hearing
Timing of a motion – deportation while pending
Client’s “job” in immigration court
Resources
CPCS Immigration Impact Unit 21 McGrath Highway Somerville, MA 02143 TEL: 617-623-0591 FAX: 617-623-0936 iiu@publiccounsel.net
www.publiccounsel.net