Transcript Document

Defending Immigrants
Immigration Consequences of
Criminal Offenses
Angie Junck, Supervising Attorney
[email protected]
Immigrant Legal Resource Center
April 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)
– [email protected], 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/immigrationenforcement
• 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
© 2014 Immigrant Legal Resource Center
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I. Why Are We Here?
Tale of Two Clients
• LPR, no priors
• DV with one year
– Stay-away order
– DV counseling
• LPR, no priors
• Battery with careful record
of conviction, one year
– Stay-away order
– DV counseling
• (What if it was 6 months?)
• (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/docum
ents/n.16client_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
Immigration Status
WHO’S A NON-CITIZEN?
Citizens and
Aliens
U.S. Citizen (“USC”)
- Not subject to
immigration detention or
removal
- Not guilty of illegal reentry 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
California
Offense
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)
b)
c)
d)
e)
f)
Avoid consequences that trigger deportation
Preserve eligibility to ask immigration judge to get or keep lawful
immigration status
Preserve eligibility to obtain future imm. benefit
Get out of jail/custody ASAP
Immigration consequences not a priority
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
Convictionbased AFs
Conviction
of
specified
offense
Sentence-based
AFs
Circumstancespecific AFs
Conviction of
specified offense +
sentence of
imprisonment of
one year or more
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
Circumstancespecific
• 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 No sentence, except for jail
of Sentence
ordered as a condition of
probation
Suspended Execution
of Sentence
The whole suspended sentence
counts
Probation
Not a sentence.
Probation violation
Additional 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)
Inadmissibility Grounds
(Crimes)
• DV Conviction
• Engaged in prostitution
• 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
• 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, or
Where 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 plea
Some other comparable judicial record
Jury instructions
The Record of Conviction Does NOT
Include:
Police reports, probation or pre-sentence reports
Statements by non-citizen outside of judgment and
sentence transcript (e.g. to police or imm judge)
Information related to dropped/dismissed charges
Information 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!