Transcript Advocating For Noncitizen Crime Survivors With Criminal

Advocating For Noncitizen
Crime Survivors With
Criminal Convictions
______________________
ASISTA Webinar Presented By:
Ann Benson & Sonia Parras
June 13, 2011
This project is supported by Grant No. 2009TAAXK009 awarded by the United States Department of
Justice, Office on Violence Against Women. The opinions, findings, and recommendations expressed
in this document are those of the author (s) and do not necessarily reflect the views of the United
States Department of Justice, Office on Violence Against Women.
Getting Help On Your Case
 The Washington Defender Association’s
Immigration Project is part of the ASISTA team
and available to provide case analysis and
problem solving to immigrant survivor advocates.

To contact WDA’s Immigration Project for
assistance email
– Jonathan Moore at [email protected]
– Ann Benson at [email protected].
You can also call us at 206-623-4321.
Goals of Presentation



Provide an overview of primary crimesrelated provisions of immigration law
Outline key concepts in analyzing the
immigration consequences of criminal
convictions
Apply these understandings assist
advocates to more effectively represent
self-petitioners and U visa applicants with
criminal issues.
Overview of Presentation

Necessary tools

Crime-related immigration provisions

Convictions & sentences under the INA

Overview of the categorical analysis

Crimes & self-petitions

Crimes and U visa applications
Necessary Tools

Immigration & Nationality Act;
 Copy
of the criminal statute at issue;
 Copy
of the criminal record of
conviction;
 Access
to “crim-imm” resources
Necessary Tools

For assistance in obtaining the necessary criminal
documents see:
Step One In Representing Noncitizens With
Criminal History: Obtaining Relevant Information
About the Criminal Case by Ann Benson,
Directing Attorney of Washington Defender
Association’s Immigration Project.

Published in Vol. X, Issue X of the ASISTA
newsletter and available at www.asista.org
Necessary Tools
Crim-Imm resources

Immigrantion Advocates Network
– www.immigrationadvocates.org

Defending Immigrant’s In the Ninth Circuit, by
Kathy Brady et.al, and other materials from:
– The Immigrant Legal Resource Center www.ilrc.org

Immigration Law and Crimes, by Dan
Kesselbrenner and Lory Rosenberg
– National Immigration Project of the National Lawyers
Guild - www.nationalimmigraitonproject.org
Primary Crime-Related Provisions of
Immigration Law
 Grounds
of Inadmissibility
 Grounds
of Deportability
 Aggravated
 Good
Felony Definition
Moral Character Bars
Grounds of Inadmissibility - 8 USC
§1182;INA §212 Apply To:

Any noncitizen seeking entry to US

Any noncitizen applying for lawful status


When ICE /DHS seeks to remove/deport
Undocumented persons who illegally
entered US
LPRs who apply for citizenship
Crime-Related Grounds of
Inadmissibility – INA §212
 Crimes
of Moral Turpitude
– EXCEPTION: juvenile offense
 Commited
before 18 yrs old and 5 years
before admission
– EXCEPTION: One “petty” CIMT offense
 Max
possible sentence not > 1yr ;
 actual sentence not > 6 months (including
time suspended)
Crime-Related Grounds of Inadmissibility


Controlled Substance Violations
– Possible waiver for first-time simple
possession of 30g or less marijuana
2 or more convictions where aggregate
sentence is 5 years or more
Crime-Related Grounds of Inadmissibility
Conduct based grounds no conviction required
Reason to believe involvement in drug
trafficking, or received proceeds from
family member who is/was;
 Determined to have physical/mental
disorder that poses threat;
 Determined to be drug abuser;
 Engaged in prostitution (but not johns).

Crime-Related Grounds of Inadmissibility
Review Questions
James is undocumented but married to
a U.S. citizen. Under what
circumstances do the inadmissibility
grounds apply to him?
How will a misdemeanor theft
conviction impact him?
A DV assault conviction?
A conviction for attempted possession
of cocaine?
Crime-Related Deportation
Grounds (8 USC 1227) Apply To:

Apply to noncitizens lawfully admitted:
– LPRs, CPRs, asylees and refugees;
– Nonimmigrant visa holders (even if expired)

Legal grounds for removing people with
lawful status/who were lawfully admitted
– Do not apply:
 To
undocumented people (cancellation exception)
 To persons applying for lawful status
Grounds of Deportability

One Crime Invovling Moral
Turpitude (CIMT)
• Committed w/in 5 years of admission
• Carry maximum POSSIBLE sentence of
1 year or more

Two CIMTs
– Regardless of when committed or
sentence
Grounds of Deportability
 Aggravated
 Controlled
Felony (see next section)
substance violations
– Exception: single offense for simple
possession of 30 grams or less
 Firearms
convictions
Ground of Deporation
 Domestic
Violence Offense
– After Sept. 30, 1996
– Must be crime of violence per 8 USC 16
– Committed against person
– w/whom D has qualifying relationship
 Judicial
“determination” of
Protection/no contact order violation
– No conviction required
Grounds of Deportation
Review Questions
 Cindy
is an LPR convicted of
possession of a C/S. Do the
grounds of deportation apply to
her? Why? Which one? How
could it be possible that she
would not be deportable?
 What if she is convicted of theft?
Under what circumstances would
she be deportable? Not
deportable?
Aggravated Felony Provision –
8 USC 1101(a)(43
 21
provisions under definition
– incorportates hundreds of offenses
 Triggers
harshest consequences
– Mandatory detention
– Severe restrictions on due process
– Ineligibility for many benefits/status
– Virtually certain removal
Aggravated Felonies
 State
classification irrelevant –
misdemeanors can be AF
– E.g theft w/365 day sentence
 Highest
priority for removal
 Conviction required
 Increases sentence enhancements in
illegal reentry prosecutions
AF Definition Applies to ALL
 AF
IS NOT ground of inadmissibility,
but non-LPRs w/AF may be subject
to “expedited removal” per §238(b)
 AF
IS a ground of deportation
– Will trigger deportation for LPR/Refugee
w/bars on most avenues for relief
Aggravated Felonies –
Selected Provisions

Murder, rape, Sexual Abuse of a Minor

Drug trafficking

Firearms offenses

Crimes of violence with one year sentence
Aggravated Felonies –
Selected Provisions

Theft, Possession of stolen property,
burglary with one year sentence imposed

Crimes of fraud or deceit where loss =
$10k or more

Failure to appear

Attempt or conspiracy to commit any
listed offense
Aggravated Felonies – Review Questions

Are the following convictions AF:
– Misdemeanor assault w/365 day sentence?
– Felony Assault with 6 month sentence?
– Theft with 365 day sentence where 364 days is
suspended?
– Burglary with 12 month sentence?
– DUI with 365 day sentence?
– Vehicular Homicide with 3 year sentence?
– Statutory rape (sex w/minor)
– Possession of a controlled substance?
Selected Crime-related Good Moral
Character Bars – INA §101(f)
 101(f)3
– incorporates the crimerelated grounds of inadmissibility at
INA §212(2)
 101(f)(7) - Confined to jail for 180
days or more (aggregated)
 101(f)(8) - Aggravated felony
convictions
Convictions Under
Immigration Law
 INA
101(a)(48)(A)
– Formal judgment of guilt by court, or
– Deferred Adjudication = conviction if:
 Finding
of guilt or
 Admission of guilt or
 Admission of Facts Sufficient to warrant
finding of guilt and
– Judge orders punishment or restraint
Convictions Under
Immigration Law

Deferred/Withheld Adjudications
– Often used in minor first-time offenses where
defendant agrees to comply w/conditions for
period and then case dismissed.
– These are convictions under immigration law
forever where deferral requires admission of
guilt or stipulation to “facts sufficient”.
 Even
where successfully completed and dismissed
Convictions under
Immigration Law
These do NOT constitute convictions:

Juvenile disposition (in juvenile court);

Conviction on direct appeal of right;

Infractions
Post Conviction Relief



PCR “vacations” work if record shows
underlying legal defect not just for
immigration purposes
Most state expungements do not eliminate
conviction for immigration purposes
PCR to modify sentence (e.g. 365 to 364)
WILL be given effect (regardless of basis)
Convictions – Key Questions

Does the immigration statute
applicable in your case require a
conviction?
 If
so, based on the criminal records,
does your client have a conviction?
Sentence Definition – 8 USC
1101(a)(48)(B)
•
Includes the period of incarceration or
confinement ordered by a court
regardless of any “suspension” of the
imposition or execution of the sentence in
whole or in part.
• Example:365 days imposed with 364 days suspended = 365
for immigration purposes.
Sentences
• Certain misdemeanors with 365 day sentences
= aggravated felonies (e.g. theft and assault).
• Exceptions:
•
Certain Bars triggered by amount of time served
regardless of actual sentence imposed
• Example: GMC bar where 180 days served
•
Crimes Involving Moral Turpitude (CIMT)
• Inadmissibility Ground Petty Offense Exception
• Deportation Ground – 1 CIMT
Definition of Sentence
INA 101(a)(48)(B)


“Deferred Sentences” do not count if no
actual time was imposed on judgment
(check your state laws);
Does not include any period of probation
or community custody UNLESS imposed
as condition of probation or b/c of
probation violation
Sentences – Key Questions
 Determine
what the actual “sentence
imposed” is (regardless of time
suspended).
 Determine
if possible crime-related
immigration provisions are triggered
due to the sentence.
Convictions & Sentences – Review
Questions
Angela is charged with misdemeanor
theft. Would the following be a
conviction? What are the sentencing
implications? What additional
information would you want?
–
–
–
–
12 month deferred adjudication agreement?
Guilty plea with 12 month deferred sentence?
Plea w/365 day sentence? 364 days?
Plea to attempted theft with 90 day sentence?
Analyzing The Impact
of A Conviction

Step 1: Existence of Conviction
– Does not necessarily determine that it triggers
immigration penalty



Step 2: Identify possible crime-related
immigration provisions
Step 3: Use categorical analysis to determine if
this conviction triggers the immigration penalty
Step 4: If yes, identify possible waivers
Categorical Analysis

Analytical Process sanctioned by US
Supreme Court to determine whether
elements required for conviction under
state/federal criminal statute sufficiently
match the elements of the relevant crimerelated immigration provision
– Example: Does this state misdemeanor
assault conviction constitute a “crime of
violence” under the agg felony (or DV
deportation ground)?
Categorical Analysis
 The
analysis does not focus on
conduct of defendant (what she did
or did not do) but on the elements
required for conviction as set forth in
the statute of conviction or, where
applicable, the record of conviction.
Categorical Analysis – Step One
 Step
1A: Identify elements of the
“generic definition” of the
immigration provision at issue
– Some defined by reference to a federal
criminal statute (e.g. “crime of violence”
is defined by reference to 18 USC 16)
– If no reference to federal statute, then
defined by the courts/caselaw (e.g.
crimes involving moral turpitude)
Categorical Analysis – Step One
 Step
1B: Compare the elements of
the “generic definition” to the
elements required for conviction
under the criminal statute of
conviction.
– Imperative to locate a copy of the
statute of conviction
Categorical Analysis – Step One
 If
elements of statute of conviction
sufficiently match generic definition,
then the conviction “categorically”
falls within the immigration provision
and triggers the penalty
 Key
is to focus on the ELEMENTS
required for conviction
Categorical Analysis – Step One
 Important
to identify the elements
required for conviction under the
criminal statute
– Look to criminal statute and caselaw
interpreting it to determine the
elements required for conviction
Categorical Analysis


If statute not categorical match, then
conviction does not fall within the
immigration provision. HOWEVER,
May require STEP TWO analysis b/c crim
statute is “overbroad” or “divisible”
because either:
– 1. it includes multiple offenses
– 2. multiple ways to commit the offense
Only some of which have elements that match
the generic definition
Categorical Analysis – Step Two
Step Two or “modified categorical analysis”



Look to the “record of conviction” to determine
the specific elements required for this conviction
Compare these specific elements to generic
definition
If ROC doesn’t establish which part of criminal
statute was basis for conviction, then it doesn’t
trigger immigration provision
Documents Included In the
Record of Conviction






Information in the charging papers (however,
only the count that has been pled to or proved,
not original charges that have been amended or
dismissed charges);
The judgment of conviction;
Jury instructions;
A signed guilty plea or a written plea agreement;
The transcript from the plea proceedings; and
Sentence & transcript from sentencing hearing.
Record of Conviction DOES NOT INCLUDE:
Prosecutor’s remarks during the hearing;
 Police reports;
 The affidavit of probable cause;
 Probation or “pre-sentence” reports;
 Statements by the noncitizen outside of
the judgment and sentence transcript
(e.g., to police or immigration authorities
or the immigration judge);
 A court docket summary prepared by
clerical staff;
 Information from a co-defendant’s case.

CONT.
WARNING! The police report
and/or affidavit of probable
cause WILL BE INCLUDED in the
ROC if it is incorporated into the
plea statement as the factual
basis for the plea.
Categorical Analysis – Step Two
 Defendant’s
plea statement most
important document
 Charging
papers or judgment &
sentence alone are insufficient to
establish elements of conviction
where statute is overbroad or
divisible
Categorical Analysis

It is imperative to consult with additional
resources and experienced practitioners
– See Chapter 2 of Defending Immigrants in the
Ninth Circuit for detailed analysis

Read BIA and circuit court decisions to
understand how the BIA and your circuit
view and apply the categorical analysis
Categorical Analysis – Step Two

Examples:
– 1. Washington State Felony Assault 3rdStatute
has 8 different prongs that are 8 separate
crimes, only some of which have elements that
are CIMTs
– 2. Washington State Misdemeanor Assault 4
defined by caselaw to include multiple ways to
commit the offense, only not all of which are
crimes of violence under 18 USC 16 (as
required for agg felony or DV deportation).
Crimes and VAWA Self-Petitions
 Always
two steps:
– 1. Is applicant statutorily eligible?
– 2. Does applicant warrant a favorable
exercise of discretion?
Crimes & VAWA Self-Petitions
Does the conviction/conduct trigger
any GMC statutory bars?
– 101(a)(3) – 212(a)(2)’s inadmissibility
grounds?
– 101(a)(7) – served 180 days in jail?
– 101(a)(8) – aggravated felony
conviction?
Crimes & VAWA Self-Petitions
 Does
categorical analysis provide
basis to argue conviction does not
trigger GMC bars? (especially
unwaivable agg felony bar)
– Example: Can you use the categorical
analysis to argue that the assault
conviction is not a crime of violence
and, thus, even though 365 day
sentence, NOT an agg felony?
Crimes & VAWA Self-Petitions
 §204(a)(1)(C)
Waiver for GMC Bars
– Is a waiver available for this conviction
for purposes of determining
inadmissibility or deportability?
– Is the conduct/conviction connected to
the abuse?
Crimes & VAWA Self-Petitions

Consult CIS GMC Memo – 1/19/05
– Memo advises reference to 8 CFR 212.7(d)
where conviction is for violent or dangerous
offense
– Memo asserts any aggravated felony is per se
bar to GMC b/c no waiver available
 BUT
for those convictions that are agg felonies AND
CIMT (e.g. theft conviction w/365 day sentence)
argue that as CIMT, offense is waivable per 212(h)
Crimes & VAWA Self-Petitions
 In
addition to establishing statutory
eligibility for GMC applicant must
also establish that she warrants
favorable exercise of discretion.
Crimes & VAWA Adjustment
 Does
conviction/conduct trigger any
statutory grounds of inadmissibility
under §212(a)(2)?
– Can you use categorical analysis to
argue that it does not?
– If not, can she qualify for
§212(h)(1)(C) waiver?
Crimes & VAWA Adjustment

§212(h)(1)(C) –
– DOES WAIVE:
 CIMT
offenses
 First time simple possession < 30g marijuana
 Prostitution (note limitations)
– DOES NOT WAIVE:
 Any
other type of drug offense (no waivers)
 8 CFR 2127(d) limitation on exercise of discretion
where violent or dangerous offense
Crimes & U Visa Applicants
 Always
two steps:
– 1. Is applicant statutorily eligible?
– 2. Does applicant warrant a favorable
exercise of discretion?
Crimes & U Visa Applicants
 Does
conviction/conduct trigger any
crime-related bars under
§212(a)(2)’s grounds of
inadmissibility?
 If so, is she eligible for 212(h)
waiver?
Crimes & U Visa Applicants
 If
not, does she qualify for
212(d)(14) waiver?
– Gives AG discretion to waive any ground
of inadmissibility under 212(a)
 including
crimes grounds at (a)(2)
 Exception: nazi persecutors and torturers