Immigration, Crimes, Deportability, Waivers

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1 Immigration, Crimes, Deportability, Waivers Martin County Bar Association August 21, 2015 SUI CHUNG A T T O R N E Y A T L A W I M M I G R A T I O N L A W & L I T I G A T I O N G R O U P M I A M I, F L O R I D A MICHAEL VASTINE P R O F E S S O R O F L A W D I R E C T O R, I M M I G R A T I O N C L I N I C S T. T H O M A S U N I V E R S I T Y S C H O O L O F L A W M I A M I G A R D E N S, F L O R I D A

2 Prologue Although we have observed that [a] lawyer is often the only person who could thread the labyrinth of the immigration laws, that observation breaks down when the lawyer does not know the way. - Salazar-Gonzalez v. Lynch, No (9 th Cir. Aug. 20, 2015)

3 INTRODUCTION TO REMOVAL INITIATION OF PROCEEDINGS

Dept. of Homeland Security Citizenship & Immigration Services (CIS) Immigration &

Attorneys (TAs), Asylum Office Interviewers, Service Centers Dept.

Appeals (BIA) Immigration Judges (IJs) DHS DOJ HHS *Dept.

4 Dept. of Homeland Security Citizenship & Immigration Services (CIS) Immigration & Customs Enforcement (ICE) Customs & Border Protection (CBP) ICE Officers, Trial Attorneys (TAs), Asylum Office Interviewers, Service Centers Dept. of Justice Executive Office for Immigration Review (EOIR) Board of Immigration Appeals (BIA) Immigration Judges (IJs) DHS DOJ HHS *Dept. of Health & Human Services (HHS) Office of Refugee Resettlement (ORR) Unaccompanied Refugee Minors (URM) Div. Of Unaccompanied Children s Services (DUCS) Shelter Workers, Therapists, Field Coordinators State Court *State Courts Dependency Court: family court, juvenile delinquency, probate court

5 Commencement of Removal Proceedings: Issuance of Notice to Appear (NTA) Review of NTA- Alleges facts to support charges including alienage, check them for factual accuracy Check for errors (name, date of entry) and note issue date. Issuance and service issues. 8 CFR 239.1(a),(b). Only certain officials may issue NTA. Regs list 40 different officers permitted to issue NTA Authority may be delegated by Secretary of Homeland Security Criminal convictions for deportable individuals DHS must provide a certified copy of final disposition, or other court documents, if alleged on the NTA (see INA 240(c)(3)(B) and (C))

6 Notice To Appear: Factual Allegations

7 Notice To Appear: Legal Allegations

8 Notice To Appear Removability vs. Inadmissibility Inadmissibility (arriving aliens and aliens present in the US who have not been admitted or paroled) Persons who are not lawfully admitted and entered w/o inspection, or an alien seeking entry, is subject to INA 212(a) Removability Individuals who are admitted into the US, but are deportable are subject to INA 237

9 Common Applications for Relief from Removal Asylum, Withholding of Removal, and Protection Under the Convention Against Torture Cancellation of Removal Adjustment of Status to lawful permanent resident Victims of Crime: VAWA, U and T visas Prosecutorial Discretion and Administrative Closure Voluntary Departure

10 What is a conviction for immigration purposes? INA 101(a)(48)(A) formal judgment of guilt, plea of guilty, plea of nolo contendere Where the judge orders some form of punishment, penalty or restraint on liberty Note: includes withheld adjudication

11 Proving Conviction INA 240(c)(3)(B) Charging document Plea agreement Judgment Sentence Other facts to which the defendant assented NOT: Police Report

12 Criminal - Immigration Nexus I: Inadmissibility Context (who must establish this standard): Arriving in U.S. with visa, inspection and admission Applying for lawful permanent resident status ( LPR ) LPR travelling and returning from abroad

13 Inadmissibility INA 212 Primarily Crimes Involving Moral Turpitude and Controlled Substance offenses Convictions Admissions Admissions of essential elements of offense

14 Inadmissibility INA 212 INA 212(a)(2)(A)(i) Crimes Involving Moral Turpitude Mens rea (intent or culpable negligence) Malum in se, inherently base/vile/depraved/violation of duty to society Exceptions: Juvenile: committed when under 18, and at least 5 years in past Petty: misdemeanor and sentence not exceeding 6 months INA 212(a)(2)(A)(ii) Any crime involving a controlled substance INA 212(a)(2)(B) Multiple Crimes Any totaling 5 years sentence to confinement INA 212(a)(2)(D) Prostitution Buying or selling within 10 years

15 Criminal-Immigration Nexus II Deportability Context: Documented & Undocumented Immigrants After arrest/contact with law enforcement After release from jail/prison Workplace enforcement At time of application with DHS/CIS Background checks, i.e. biometrics

16 Deportability - INA 237 Burden of Proof - government INA 237(a)(2)(A)(i) Crimes involving moral turpitude Conviction acts committed within 5 years of admission Punishable over one year INA 237(a)(2)(B) Controlled substances enumerated in 21 USC 802 Any violation, except single MJ offense Under 30 grams Personal use

17 Deportability (cont.) - INA 237 INA 237(a)(2)(A)(iii) Aggravated felony Conviction INA 101(a)(43) Defined (selected excerpts) (A) Murder, rape, sexual abuse of minor (B) Illicit trafficking in a controlled substance, including a drug trafficking crime (F) Crime of Violence Felony 18 USC 16 Use of Force, Risk of Force (G) Theft or burglary one year term imposed (M) Fraud or deceit loss of $10,000

18 Deportability (cont.) - INA 237 INA 237(a)(2)(C) Firearms offenses INA 237(a)(2)(E) (i) Domestic violence, stalking, child abuse (ii) Violations of protective orders related to domestic violence

19 Impact of Crimes on Immigration PROPER ADVICE AND AVOIDING AND MINIMIZING IMMIGRATION CONSEQUENCES

20 Nexus: Crimes and Relief [P]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence. Likewise, we have recognized that "preserving the possibility of' discretionary relief from deportation would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial. Hernandez, at 1148, quoting Padilla, at 1483

21 Proper advice of Immigration Consequences Padilla v. Kentucky (2010) Applies Strickland v. Washington (1984), but in new context Ineffectiveness Prejudice Two tiers of attorney obligation If certain/mandatory consequences must identify If uncertain inform may impact and encourage consultation with immigration specialist

22 Padilla/Chaidez/Hernandez Padilla v. Kentucky, 559 U.S. 356 (2010) (Strickland v. Washington governs ineffective counsel regarding immigration consequences) Hernandez v. State, 124 So. 3d 757 (Fla. 2012) Florida plea colloquy insufficient to cure ineffective counsel (Bermudez v. State and Ginebra v. State reversed) Long-term reliance on Ginebra militates against retroactive application of new Padilla rule because of impact on justice system. 22 Chaidez v. United States, 133 S. Ct (2013) Padilla court had to decide threshold question of whether Strickland applied, therefore Padilla not dictated by Strickland. Padilla not retroactive old rule pursuant to Teague v. Lane 489 U.S. 288 (1989)

23 Summary: Avoiding convictions & minimizing consequences Avoid Convictions Juvenile dispositions Nolle Prosequi Plea to alternate charges Plea and Pass NOT Withhold of Adjudication Expunge Consequences Goal: Avoid all Strategically trigger only one Avoid deportability Avoid inadmissibility Waivers: Avoid time bars Avoid statutory bars Aggravated felony Drug crime Discuss and memorialize client goals and choices

24 Relief From Removal DISCRETIONARY WAIVERS

25 Relief from removal Adjustment of Status (for undocumented and LPR) Not all crimes bar adjustment Test: inadmissibility Typically CIMT requires a waiver Most drug crimes cannot be waived

26 Relief from Removal INA 240A(a) Cancellation of Removal Permanent resident status for 5 years Present after any lawful admission for 7 years No aggravated felony * Stop-time rule

27 Relief from Removal (cont.) INA 212(h) Waiver of Inadmissibility If NOT a resident: No drug crimes other than one possession MJ Extreme hardship to qualifying relative If a resident:* LPR for 7 years prior to removal proceedings* No aggravated felonies* No drug crimes other than one possession MJ Extreme hardship to qualifying relative (US citizen/lpr parent, spouse, child) [* if not charged as inadmissible, also need an U.S. citizen immediate relative to sponsor ] [** bars not applicable if acquired LPR status in U.S.]

28 Relief from Removal (cont.) INA 212(c) (repealed) Lawful permanent resident 7 years lawful permanent domicile No aggravated felonies with more the 5 year sentence served (generally) conviction entered prior to April 24, 1996

29 Changing Gears T A K E W H A T T H E S Y S T E M G I V E S Y O U, B U T C O N S I D E R C H A L L E N G I N G T H E P R O B L E M I T S E L F

30 The Categorical Approach Descamps v. United States, 133 S.Ct (2013) Conviction rests on least culpable conduct Compare state elements to the federal or generic offense Moncrieffe v. Holder, 133 S.Ct (2013) Least culpable conduct applied to federal CSA Matter of Silva Trevino, 26 I&N 550 (A.G. 2015) Categorical approach applies to CIMT

31 Circuit Split on Descamps Matter of Chairez-Castrejon, 26 I & N Dec. 349 (BIA 2014) Removability for aggravated felony crime of violence under INA 101(a)(43)(F) Conduct must be volitional. Leocal v. INS (2001) BUT Utah element of mens rea has multiple levels (1) Intentional (2) Knowing (3) Reckless Firearm offense under INA 237(a)(2)(C) Least culpable conduct option: Antique firearm exception Matter of Chairez-Castrejon 26 I&N Dec. 478 (BIA 2015) Revisits circuit application of Descamps Context: crime of violence

32 Chairez II, Feb. 11, 2015 Recognizes split in Circuits in Means vs. Elements debate United States v. Trent, 767 F.3d 1046 (10 th Cir. 2014) Jury unanimity not required for element status Divisibility occurs when statute employs alternative statutory phrases In that case, proceed to modified categorical approach Compare: United States v. Estrella, 758 F.3d 1239 (11 th Cir. 2014) If jury need not agree to convict on basis of one alternative as opposed to another there is no basis to find mens rea to injure Throwing missile at (targets and/or people) no firm mens rea to injure people Compare: United States v. Howard, 742 F.3d 1334 (11 th Cir. 2014)

33 Categorical approach in 11 th Circuit United States v. Howard, 742 F.3d 1334 (11 th Cir. 2014) The generic definition/elements of burglary: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. Ala. Code 13A-7-7(a) knowingly enters or remains unlawfully in a building with intent to commit a crime therein. BUT.

34 United States v. Howard, 742 F.3d 1334 (11th Cir. Ala. 2014) Ala. Code 13A-7-7(a) Building: Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof.

35 United States v. Howard, 742 F.3d 1334 (11th Cir. Ala. 2014) Ala. Code 13A-7-7(a) Building: Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof.

36 Categorical Example: Fla. Theft as CIMT Matter of Grazley (only permanent taking is CIMT) COMPARE (Chevron deference given to agency interpretation) Fla. Stat (1) A person commits a theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent to, either temporarily or permanently: a) Deprive the other person of a right to the property or a benefit from the property. b) Appropriate the property

37 Florida Theft State case Daniels v. State, 587 So.2d 460 (Fla. 1991). The Florida Legislature added the phrase either temporarily or permanently to underscore its intent that Florida s theft statute, unlike common law larceny, penalizes takings that are temporary as well as those that are permanent The Florida standard jury instruction illustrates the non-divisibility of the mens rea requirement 14.1 THEFT , Fla. Stat [He] [She] did so with intent to, either temporarily or permanently,

38 INA 101(a)(43)(B) Drug Aggravated Felony Two Tests (1) illicit trafficking in a controlled substance (commercial dealing) (2) including a drug trafficking crime (as defined in section 924(c) of Title 18) (a federal felony under CSA) See Lopez v. Gonzalez, 127 S.Ct. 625 (2006)

39 Florida Sale or Delivery of Controlled Substance FL Stat (1) (a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.

40 Florida Statute (1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So.2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent. Lack of knowledge is an affirmative defense in which the defendant bears the burden of proof and mens rea will be presumed.

41 Cases construing Fla. Stat (1) and FL Stat (1) (a) it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver knowledge of the illicit nature of a controlled substance is not an element Donawa v. United States AG, 735 F.3d 1275 (11th Cir. 2013) 18 U.S.C. 924(c)(2)For purposes of this subsection, the term drug trafficking crime means any felony punishable under the Controlled Substances Act Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014) illicit trafficking in a controlled substance

42 Donawa Drug trafficking crime analysis: Presumption of mens rea in Florida offense means it categorically fails to constitute a federal analogue Remanded for BIA to consider whether illicit trafficking in a controlled substance

43 Matter of L-G-H- 1. Are actions proscribed by Florida statute categorically commercial in nature? * No engage in the modified categorical approach

44 Florida Standard Jury Instruction 25.2 Drug Abuse Sale, Purchase, Manufacture, Delivery, Or Possession With Intent (Defendant) [sold] [purchased] [manufactured] [delivered] [possessed with intent to sell] [possessed with intent to purchase] [possessed with intent to manufacture] [possessed with intent to deliver] The substance was (specific substance alleged). (Defendant) had knowledge of the presence of the substance.

45 Logic likely applies to other 893 subsections Absence of mens rea applies broadly. Apply least culpable conduct test to the action. Non-commercial offenses escape aggravated felony treatment

46 Thank you and good luck. SUI CHUNG I M M I G R A T I O N L A W & L I T I G A T I O N G R O U P A V I A T I O N A V E, T H I R D F L O O R M I A M I, F L O R I D A ( ) S C H U N L A W G R O U P U S A. C O M M I C H A E L V A S T I N E P R O F E S S O R O F L A W ; D I R E C T O R, I M M I G R A T I O N C L I N I C S T. T H O M A S U N I V E R S I T Y S C H O O L O F L A W NW 27 TH A V E, M I A M I G A R D E N S, F L ( ) M V A S T I N S T U. E D U

CRIMMIGRATION. The Intersection of Criminal and Immigration Law. John Gihon Shorstein, Lasnetski & Gihon

CRIMMIGRATION. The Intersection of Criminal and Immigration Law. John Gihon Shorstein, Lasnetski & Gihon CRIMMIGRATION The Intersection of Criminal and Immigration Law John Gihon Shorstein, Lasnetski & Gihon John@slgattorneys.com RESOURCES & TERMS n Immigration and Nationality Act (INA) n Code of Federal