Transcript Unit 2: Definition of Conviction, Drug Offenses

National Defending Immigrants
Partnership Training – Day 1
Unit 1: Overview,
Immigration Status,
Defense Priorities
Unit 1: Goals, Immigration Status,
Analysis, Tools


Defense counsel should provide noncitizen
defendant with specific analysis of the impact
of a proposed criminal disposition on the
person’s immigration situation.
Some states’ law doesn’t require this, but it is
part of basic defense. Just as defendant
needs to know possible sentence before
agreeing to plea, needs to know immigration
consequences.
Part A: Understanding
Immigration Status
Citizens
 Aliens
– Permanent Residents
– Undocumented
– Other types of status (asylee, refugee,
applicant for status, TPS, student or
employment visa, etc.)

Citizens and Nationals
No U.S. citizen (“USC”) or national can
be deported or removed, or prosecuted
for a crime for which alienage is an
element, such as illegal re-entry.
 Citizen = born in U.S. or Puerto Rico,
sometimes Guam.
 National = born in American Somoa,
Swains Island.

Naturalization to U.S. Citizenship


A lawful permanent resident (LPR, “green
card-holder”) can apply to become a U.S.
citizen by naturalization.
Must show “good moral character” and LPR
status for a certain amount of time (usually 5
yrs, sometimes less). Must not be deportable.
– Other requirements include ability to speak
English (some exceptions), knowledge of US
history/gov’t, take a loyalty oath, etc.
Some Foreign-Born Became
Citizens without Naturalizing


Many persons born abroad are USC’s (and
may not even know it!). Ask:
– When you were born, did you have a USC
parent or grandparent?
– While under age of 18, (a) did you get a
green card and (b) did a parent with custody
of you become a citizen through
naturalization?
If answer to either question is yes, refer for
consultation to see if client is USC.
Juvenile Defenders:
Make a Citizen, Save a Kid
Juvenile defenders, working with parent,
can protect child from future deportation.
 A juvenile who is an LPR (has a green
card) will automatically become a citizen
if a parent with custody naturalizes to
U.S. citizenship before the juvenile’s 18th
birthday.
– Kid’s delinquency, adult crim record is
no bar.

“Aliens” (Non-USC’s)

All non-USC’s, including persons who’ve had a
green card for 20 years and have USC
children, can be deported, easily, for a criminal
conviction.
– Lawful Permanent Resident (LPR,Green
Card-Holder) can remain unless becomes
deportable
– Undocumented – “illegal alien” – may hope
to get lawful status
– In between are various forms of status.
Lawful Permanent Resident


Becomes LPR through family petition,
employment, asylum, or other application
Maintains LPR status permanently unless
–
–
–


becomes deportable, e.g. by conviction of a crime, or
leaves US while inadmissible for crime, or
abandons LPR status, e.g. by remaining too long
outside U.S.
Must renew LPR card every 10 years, at which
time imm authorities might check prints for
deportable offenses
Can apply for naturalization after certain period
of time.
Undocumented Person
Usually either entered without inspection,
or overstayed some visa
 No current lawful immigration status
– However, might be eligible to apply for
status (or in the future might become
eligible to apply). For example, might
marry a U.S. citizen.

Undocumented II
Can be “removed” (deported) if detected
by DHS, unless can assert some defense
or application against the removal.
 “Judge I am undocumented but I qualify
for relief from removal because I am
eligible to apply for … (some status, such
as asylum, cancellation for non-LPR’s,
TPS, family immigration, etc.).”

Not LPR, Not Undocumented:
Other Types of Status


Dozens of other types of status exist. E.g.s:
– Non-immigrant (temporary) visas, such as F1 student, H-1 professional worker
– Non-permanent status such as asylee,
refugee, or TPS recipient;
– Person has applied for status and has work
authorization (current or expired).
Photocopy any imm document and consult
with an immigration attorney to determine the
person’s status and the criminal defense goals.
Exercise 1 – Immigration Status

What do you know, or what should you
do to find out, about your client’s
immigration status if she:
– Has a “lawful permanent resident
card” dated 12 years ago?
– Has a “B-1 visitor” visa that expired in
1992?
– Has no papers, but says her father is a
U.S. citizen.
Part B: Intake Sheet and Interview,
Using a State Chart, the Three Lists
Intake Sheet: Key Defense Tool
– Captures information needed to make
an immigration analysis
– Using a designated color alerts all
atty’s that immigration is an issue
 How to get this instituted in your state or
office?

Intake Interview
At intake and after (atty or intake staff):
• Assure client you’re not DHS, info is
confidential
• Complete Immigration Intake Sheet
• Photocopy any imm cards or documents
• Obtain info on other convictions in all
jurisdictions and countries
• Interpreter Issues
Analysis
•
•
•
Verify Citizenship/Imm Status
Prepare to Ask About Alternative
Dispositions
Rough Out the Analysis Yourself Before
Calling, if you will call other atty
National Manual and State Chart

Key Defense Tools to help defenders
make individual analysis for defendant:
– Analyze consequences of past
convictions and proposed plea; locate
“safer” plea options, if they exist
Using Chart and Materials
Quick Reference Chart and Notes is a
“triage” measure that significantly
improves your ability to competently
represent noncitizen defendants.
 But in many cases, not enough. Require
in-depth research and/or consultation
with expert, unless and until you develop
expertise.
 See “Note: Resources.”

Using the Quick Reference Chart
Quick Reference Chart for Immigration
Consequences:
– Look up offense by code section
– Look to Chart to identify immigration
consequences
– Look to National Manual (or state
guide, such as Calif. Notes) for info
about the immigration consequences
Three Lists of Offenses with
Immigration Consequences
Aggravated Felonies, 8 USC 1101(a)(43)
 Grounds of Deportability, 8 USC 1227(a)
 Grounds of Inadmissibility, 8 USC
1182(a)
 The lists contain different offenses. A
conviction may make the person
inadmissible but not deportable, or be an
aggravated felony but not a ground of
inadmissibility.

Aggravated Felonies
-- Most Serious Consequences

“AF” = Aggravated Felony.
– AF carries worst possible imm
penalties. Almost impossible to qualify
for waiver to stop deportation or get
status. A few means of relief exist.
– Prior AF conviction also will increase
federal sentence if person re-enters
U.S. after being deported/removed,
under 8 USC 1326(b)(2).
Examples of Aggravated Felonies
Dozens of minor and serious offenses.
Examples are:
– Any drug trafficking, sometimes drug
possession
– Sexual abuse of a minor (includes stat
rape)
– Misdemeanor theft with a suspended
sentence of a year . . .
Examples of Agg. Felonies (2)
More examples:
Rape, murder
– Fraud with > $10,000 loss to victim
– “Crime of Violence” with a suspended
sentence of a year
–
Grounds of Deportability
“Takes away what you’ve got”
Take away status, so even a permanent
resident can be “removed” (deported)
 Unless the offense is an aggravated
felony, some waiver of deportability might
be available.

–
See, e.g., LPR “cancellation of removal” (8
USC 1229b(a)), a discretionary waiver for
long-time LPR’s who are deportable for
crimes – but barred by AF conviction.
Deportability Grounds
Based on Crimes

Conviction of:
– Crime/s involving moral turpitude
– Controlled Substance Offense
– Firearms Offense
– Domestic Violence Offense, Stalking,
or Child Abuse, Neglect or
Abandonment
– Aggravated Felony
Deportability Grnds
Based on Crimes, Cont’d

Conduct grounds (don’t require
conviction)
– Violation of domestic violence
protective order (civil or crim)
– Alien Smuggling
– False documents
– False Claim to U.S. Citizenship
Grounds of Inadmissibility,
“Blocks getting something new”


A noncitizen who is inadmissible on criminal
grounds:
– Cannot be admitted to the U.S.
– Cannot get a green card or other status
– Offense may affect ability to naturalize
Some inadmissibility grounds, in some
situations, can be waived at discretion of an
immigration officer or immigration judge.
Inadmissibility Grounds
Based on Crimes

Conviction of:
– Crime/s Involving Moral Turpitude
(different standard from the removal
CMT ground)
– Controlled substance offense
– Two offenses of any kind with
aggregate 5 yr or more sentence
imposed
– High-speed chase near border
Crimes Inadmissibility Grounds II

Conduct grounds (don’t need conviction)
–
–
–
–
–
–
–
–
Formally admit CMT or drug offense
Drug addiction or abuse
Gov’t has “reason to believe” drug trafficking
Engaging in prostitution
Alien Smuggling
False Claim to U.S. Citizenship
False documents
Mental disorder posing threat to self, others
Crimes Inadmissibility Grounds III


Notice the grounds of inadmissibility do not
include conviction of:
– Firearms offense
– DV offense, stalking, or child abuse neglect
or abandonment,
– Aggravated Felony
– Violation of DV protective order (civil or crim)
Sometimes such offenses also create
inadmissibility under CMT or drug grounds
Part C: Establishing Defense Goals
in Individual Cases



Everyone wants to avoid an aggravated felony
Grounds of deportability and inadmissibility are
slightly different lists of crimes.
– For example, firearm offense triggers
deportability but not inadmissibility, while
“reason to believe” trafficking triggers
inadmissibility but not deportability
How to set priorities between avoiding
deportability versus inadmissibility?
Establishing Goals II
In general, lawful permanent resident
(“LPR,” “green card”) most wants to
avoid deportability grounds. 8 USC
1227(a).
 In general, persons without status, e.g.
undocumented, most wants to avoid
inadmissibility grounds. 8 USC 1182(a).
 See “Establishing Defense Goals”

Defense Goals for LPRs
An LPR’s crim defense goals, in order, are:
1. Avoid aggravated felony (AF)
-- AF will make them deportable and
block almost all relief.
2. Avoid other grounds of deportability
-- A deportable LPR can be stripped
of green card and removed (but
without an AF conviction, some
relief might be available)
LPR Defense Goals II
3. Avoid becoming inadmissible
-- Inadmissible LPR doesn’t
necessarily lose green card.
-- But can’t travel outside US, must
wait to naturalize to U.S. citizenship.
LPR Defense Goals III

An LPR who becomes deportable still
may be able to apply for some relief from
removal.
– That may require being admissible, as
well as other conditions.
– Defense counsel must understand
what imm. relief is available, and the
criminal bars to that relief
Defense Goals for
Undocumented Persons


Usually coming within a ground of deportability
won’t hurt the person.
– (Exception is person who will apply for
cancellation for non-LPR’s)
Want to qualify for status or relief, now or if
they become eligible in the future
– Remain admissible
– Specific status may require more. Defense
counsel must understand what they’re
eligible for and criminal bars.
Defense Goals for the Person Who
Absolutely Will Be Removed

E.g., undocumented with no hope of relief;
deportable LPR with no waiver; immigrant with
prior removal/deportation
– Priority may be to avoid contact with imm
authorities. To do that: avoid jail time.
– Person must be warned of federal crim
penalties for illegal re-entry following
removal and certain prior convictions. If
possible, plea should be made to minimize
this.
Exercise 2: Determining Criminal
Defense Goals

Questions about Deportability,
Inadmissibility, Conviction of an
Aggravated Felony, and the Effect on
Different Types of Immigration Status
Client Already Deported,
Illegally Re-entered



Biggest priority is to avoid meeting federal
authorities. Avoid jail.
Depending on priors and locale, 30-60 months
typical sentence
Imm authorities simply will “reinstate” prior
deport order and deport; no advantage in going
there except in extreme persecution (political,
religious, etc.) cases.
More info on Illegal Re-entry

See U.S. Sentencing Guidelines on 8 USC
1326(b)
–
–


18 USCS Appx 2L1.2 (2003)
Application Notes (b)(1)
See California Criminal Law and Immigration,
sec. 9.50 for discussion and text of above
USSG sections
Consult with fed public defender
Unit 2:
Definition of Conviction
Many, but not all,
immigration
consequences require
a conviction.
Definition of Conviction for
Immigration Purposes
•
•
•
Formal judgment of guilt by court, or
If adjudication withheld, still a conviction,
despite state law to contrary, as long as:
• Judge/jury found guilt, or noncitizen pleaded
guilty or NC or admitted facts to warrant guilt
finding, and
• Judge ordered punishment or restraint
(includes probation)
See 8 USC 1101(a)(48)(A)
Not a Conviction
•
Delinquency disposition(or state youthful
offender disposition in adult criminal court
deemed analogue to federal delinquency
disposition)
•
•
Conviction on appeal
Dispo that does not contain a plea/finding
of guilt plus punishment/restraint such as
probation
Delinquency Disposition Not
Conviction
•
•
Not a conviction
• Matter of Devison, 22 I&N Dec. 1362
(BIA 2000 Crucial for non-USC’s to go
to JD where possible
JD findings still can cause harm under
“conduct” grounds, e.g. show drug
trafficking, abuse, addiction; prostitution.
Youthful Offender Dispositions

Board of Immigration Appeals has held that NY
youthful offender disposition in adult criminal
court is analogous to federal juvenile
delinquency disposition
• Matter of Devison 22 I&N Dec. 1362 (BIA
2000 (BIA 2000).
Youthful Offenders (2)

Board considered similarity of definitions of
youths and juveniles, similarity of other
eligibility criteria, fact that both dispositions are
not deemed convictions for criminal purposes,
and confidentiality protections involved for
both.
Appeal Not Conviction
•
•
Direct appeal of right is not a conviction
Consider:
• Late-filed appeals
• “Slow plea”: Plead guilty according to
facts in judge’s finding or police report,
but reserve appeal on suppression
motion or other substantive ground
• Warning: Fifth Circuit not in accord xxx
Alternative dispositions
that are convictions
•
•
“Rehabilitative relief” does not work.
Thus if plea or judgment withdrawn not for
legal error, but because e.g. person completed
probation or counseling, imm authorities will
maintain there is a conviction even if the state
holds that there is not.
• See, e.g., Murillo Espinoza, 261 F.3d 771
(9th Cir. 2001).
• Ninth Circuit exception: Rehabilitative relief
works for certain first drug offenses. See
below.
Alternative dispositions
that are not convictions



“Pre-plea” diversion programs, where there
never is admission or findings
Informal deferred plea: bargain with prosecutor
to continue plea hearing, during which time
defendant completes probation-like
requirements; then ask for charges to be
dropped or amended.
Drug courts sometimes don’t require plea (but
also have consequences if require admission
of abuse/addiction)
Exercise 3: Your State’s
Alternative Disposition/s

In small group, analyze the following:
– What alternative disposition/s are
available in your state? Do they
constitute a conviction for immigration
purposes?
– What formal relief or informal
strategies in your state courts would
avoid a conviction for immigration
purposes?
•Unit 3: Sentencing Strategies
•
•
•
Sentence Concern #1: Some offenses are
AF’s only if a sentence of a year or more is
imposed. Focus of this discussion.
Concern #2: Some CMT convictions cause
inadmissibility or deportability depending on
potential and/or imposed sentence
Concern #3: Certain forms of relief are
impacted by sentence.
Agg Felonies if a Sentence of One
Year or More is Imposed
Several offenses become AF’s only if a 1-yr or
more sentence is imposed:
• crime of violence
• theft, receipt stolen property
• passport or document fraud
• forgery, bribery, commercial bribery,
• counterfeit, sale of veh. w/altered ID
• obstruction of justice, perjury, subornation,
witness bribery
• See 8 USC 1101(a)(43)
Sentence Defined
•
“sentence . . . include[s] any period of
incarceration or confinement ordered by
a court” regardless of suspension of
imposition or execution. 8 USC
1101(a)(48)(B).
Suspended Sentences, Probation
•
•
•
•
Imposition suspended = good (but custody
ordered as condition of probation counts)
Execution suspended = bad (full sentence
counts)
Probation alone is not a sentence
• But note Texas, Ga probation can =
suspended sentence
Example: IOSS, 3 yrs probation, 6 mo custody
as condition of probation = 6 month sentence
Sentence Enhancement
•
Ninth Circuit: Recidivist sentence
enhancement not “sentence”
• U.S. v Corona-Sanchez, 291 F.3d 1201 (9th
Cir 2002)(en banc)(Petty theft retains a
maximum 6 mo sentence; enhancements
equaling 2 years imposed based on prior
conviction are not counted)
• Thus petty with a prior better than grand
theft.
Avoid AF Sentence
•
•
•
•
•
•
Get IOSS w/no more than 364 custody as
condition of probation
Stack counts consecutively: Analysis goes count
by count: avoid any single offense with 1 yr
sentence
Expand area of 364:
• waive past CTS, waive future conduct credits
Put time on non-AF offense
Get time by recidivist enhancement (9th Cir)
Your state?
Probation Violation
•
•
•
Avoid total of original and new PV sentence
over 364 days.
New conviction instead of violation can avoid
total sentence of one year on prior
Modify original sentence to void the custody
term and waive CTS so new sentence is less
than 365
• Matter of Song, 23 I&N 173 (BIA 2001)
Exercise 4: Sentence
•
•
•
See Materials:
Practice questions on immigration effect
of sentence
Small group discussion: sentence
strategies under your state law
Unit 4: Categorical Analysis and
Record of Conviction
See “Advice.” Poss of firearm is deportable
offense but other weapon is not. Must keep
“record of conviction” clear of information that
firearm was involved
 Illustrates the crucial defense: using the
categorical analysis and record of conviction.
Cat. Analysis: Divisible Statute and
Record of Conviction


Conviction is evaluated by elements of offense
of conviction as proved by record, not by
individual facts of case.
Where statute prohibits conduct that has imm
penalties – e.g., being an AF – as well as
conduct that does not, no imm. penalty
adheres unless the record of conviction
establishes the offense of conviction had the
adverse elements.
Where record of conviction is
vague or lacks info, immigrant wins

Record of conviction must establish that the
offense of conviction contained the harmful
element, or the element is considered
unproved.
–
–
See Shepard v United States, 125 US 1254 (2005)
(where reviewable record did not establish that
burglary was of a dwelling as opposed to a car, not
a “crime of violence” for sentencing purpose).
Already law in several circuits (see, e.g., US v
Corona-Sanchez 291 F3d 1201(9th Cir 2002)(en
banc)) but Shepard supersedes bad law in others.
Shepard limits reviewable record to
limited documents
Statutory definition,
 Charging document,
 Written plea agreement,
 Transcript of plea colloquy, and
 Any explicit factual finding by the trial
judge to which the defendant assented.

Record of Conviction INCLUDES
•
•
•
•
•
•
elements in statute and case law;
Info in criminal charge, but only w/ proof def
pled to the charge;
Plea agreement & transcript of plea hearing;
Court’s explicit factual finding to which the
defendant assented, in conviction by plea;
Admissions of D during plea, sentence;
Jury instructions if req’d for guilt in jury case.
Record of Conviction
DOES NOT INCLUDE





Police reports (Shepard)
Application for complaint (Shepard)
prosecutor’s comments (Board of Immigration
Appeals (BIA))
Probation or pre-sentence report (e.g., 9th Cir.,
implicit in Shepard)
Defendant’s admissions outside criminal
hearing (e.g. to immigration authorities) (BIA)
Case Study



Statute punishes unlawful possession of
concealed firearm or switchblade.
If Count I alleges “possession of firearm,” do
not plead to unamended Count I. Create
written plea agreement or plea colloquy
amending Count I either to be vague, or to
identify non-firearm weapon.
Good plea is to whole statute in disjunctive
(“or”)
Avoiding bad admissions
1.
2.
3.
4.
Enter Alford plea without admitting guilt
Try entering “no contest” plea
Make scripted admissions of safe
minimum facts
Admit only safe charge
Categorical Analysis
is Universally Applicable
We will use this strategy frequently to
avoid all types of immigration
consequences.
 Plea agreement or plea colloquy trumps
any other information: you create the
record of conviction.
– See e.g. Chang v INS, 307 F.3d 1185
(9th Cir. 2002).

Exercise 5:
The Categorical Analysis


1. Does your state law have a statute that
prohibits both firearms and other weapons? In
practice, could you plead in a way that would
not identify the firearm?
2. Which of the following can a court consult to
determine elements of the offense of
conviction, where the statute is divisible?
–
–
–
Charging document plus evidence that the person
was convicted under the statute.
Charging document plus transcript of plea colloquy
where defendant plead to “Count I as written.”
Police report.