Shriver Center. July August Volume 41, Numbers 3 4

Transcription

1 Shriver Center July August Volume 41, Numbers 3 4

2 Avoiding Unintended Consequences in Civil Advocacy for Criminally Charged Immigrants By Alina Das Alina Das Soros Justice Fellow, Immigrant Defense Project New York State Defenders Association 25 Chapel St. Suite 703 Brooklyn, NY ext Immigrants who have been criminally charged are subject to numerous and serious consequences that go beyond the criminal penalties. Even a relatively minor interaction with the criminal justice system may jeopardize immigrants legal status or eligibility for obtaining legal status, thus affecting their ability to live, work, support, and remain with their families in the United States. Many criminal court dispositions may result in immediate detention and the initiation of removal (i.e., deportation) proceedings even if the immigrant is a longtime lawful permanent resident and has a U.S. citizen family. Civil legal aid organizations and others engaged in civil advocacy on behalf of immigrants should be aware of the consequences of criminal charges. In this article I present an overview of the issue and resources for additional information. Common Criminal Grounds that Trigger Negative Immigration Consequences The criminal grounds of deportation, detention, and ineligibility for citizenship and various forms of immigration relief are broad and expansive. The Immigration and Nationality Act lists these grounds in several sections, including 8 U.S.C. 1101(f) (grounds that bar a finding of good moral character necessary for citizenship and certain forms of relief from removal); 8 U.S.C (grounds of inadmissibility resulting in removal of individuals seeking lawful admission or permanent residence status); and 8 U.S.C (grounds of deportability resulting in removal of lawfully admitted individuals). The specific criminal grounds listed under each section overlap to some extent, falling under broad categories such as crimes involving moral turpitude, controlled substance offenses, and aggravated felonies. Several manuals, articles, and resources discuss the definitions of all of these terms and the circumstances under which an individual s criminal court disposition may fall under one or more of these grounds. 1 1 See, e.g., Manuel D. Vargas, Representing Immigrant Defendants in New York State (4th ed. 2007) [hereinafter Representing Immigrant Defendants]; Dan Kesselbrenner & Lory D. Rosenberg, Immigration Law and Crimes (2006); Manuel D. Vargas, Immigration Consequences of Guilty Pleas or Convictions, 30 New York University Review of Law and Social Change 701 (2006); Norton Tooby & Katherine A. Brady, Criminal Defense of Immigrants (3d ed. 2003). Charts of the immigration consequences of select federal and state offenses can also be found online at the National Legal Aid and Defender Association s Note that not all of these charts are up-to-date. 228 Clearinghouse REVIEW Journal of Poverty Law and Policy n July August 2007

3 Avoiding Unintended Consequences in Civil Advocacy for Criminally Charged Immigrants Notably, a criminal court disposition may fall under one of these grounds even if the disposition is not technically a conviction or a crime under state law the key question is whether the disposition fits into the federal immigration law definitions of criminal grounds triggering negative immigration consequences. 2 A civil legal aid organization or advocate should always consult a qualified immigration law expert whenever a noncitizen client has some interaction with the criminal justice system, however minor, to assess the potential consequences. Generally, only dispositions arising from criminal court proceedings or, in some circumstances, in-or-out-of-court statements admitting to the commission of an offense may serve as criminal grounds that can trigger negative immigration consequences. 3 While civil court findings regarding criminal conduct may also trigger removal on criminal grounds, removal proceedings based on such findings are currently uncommon. However, at least one criminal ground of removal is often influenced indirectly by civil court proceedings the violator of a protection order ground of deportability under 8 U.S.C. 1227(a)(2)(E)(ii). 4 This ground applies to violations of orders of protection whether or not the order was initially entered in criminal or civil court. The entry of an order of protection itself will not trigger this ground for removal the ground is triggered only if a finding shows that the order was violated. Civil legal aid organizations and advocates who work with clients seeking or facing the entry of orders of protection in family court should thus be aware that a subsequent violation Left Behind Before Katrina and Left Behind After of an order of protection might result in the violator s deportation or other negative immigration consequences. How Civil Legal Aid Organizations and Advocates Can Help Civil legal aid organizations and advocates There Is No Such Thing as a Natural Disaster: can help their immigrant clients avoid Race, Class, and Hurricane Katrina. Edited by the unintended consequences of criminal Chester Hartman & Gregory D. Squires, with a charges by increasing Foreword awareness by Mary of the Frances Berry. Routledge, triggers, connecting 328 clients Pages. to resources, and using civil advocacy to assist clients facing possible immigration proceedings that stem from criminal By William charges. P. Quigley Increase Awareness of the Triggers of the Immigration Consequences of Criminal Charges. Civil legal aid organizations and advocates should educate themselves about the criminal charges that could trigger immigration consequences so that they do not inadvertently put immigrants facing criminal charges at greater risk of deportation and other negative consequences. Many individuals, particularly those with low-level offenses or old convictions, may not realize that they are deportable or subject to other negative immigration consequences until they are screened and identified by the government. Common trigger points that can lead to removal proceedings include (a) renewal of a permanent resident card; (b) submission of an application for adjustment of status, citizenship, or other immigration status or benefit; (c) return to the United States after a trip abroad; (d) any time spent in jail for any reason; and (e) almost any interaction with law enforcement or a government agency (there are some exceptions). 5 2 The term conviction for immigration purposes is defined at 8 U.S.C. 1101(a)(48)(A) (2006). 3 Grounds of deportability generally require a conviction (as broadly defined in immigration law), whereas grounds of inadmissibility can be established if an immigrant has a conviction or merely admits to having committed an offense. See Immigration Consequences of Guilty Pleas or Convictions, supra note 1, at Moreover, some categories of inadmissibility require the government to have neither a conviction nor an admission, such as when the government has reason to believe that an immigrant is a drug trafficker. See Representing Immigrant Defendants, supra note 1, at 5. 4 The violator of a protection order ground applies to any noncitizen who at any time after admission is enjoined under a protection order issued by a court and who, the court determines, engages in conduct violating the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued. For purposes of this clause, the term protection order means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding. 8 U.S.C. 1227(a)(2)(E)(ii) (2006). 5 Some localities or government agencies may have policies on whether they report individuals with immigration problems to the U.S. Department of Homeland Security. Civil legal aid organizations and advocates should learn about these policies and consult local immigration law experts to assess the risk of having a noncitizen client contact a government agency for benefits, housing, and other kinds of assistance. Clearinghouse REVIEW Journal of Poverty Law and Policy n July August

4 Avoiding Unintended Consequences in Civil Advocacy for Criminally Charged Immigrants Thus, for example, before civil legal aid advocates tell clients to renew their permanent resident cards to submit with a government benefits application or assist clients in applying for citizenship, the advocates should always consult a qualified immigration expert to find out whether clients criminal dispositions may put them at risk of deportation and other negative consequences. Educate Clients and Connect Them to Appropriate Resources. Civil legal aid organizations and advocates can directly advise clients about the immigration consequences of criminal charges and connect them to resources. If clients have an old criminal disposition, they should be informed that the disposition may have negative immigration consequences and understand what actions may trigger such consequences in the future. If they are currently involved in a criminal court proceeding (or, as described above, in a family court proceeding where an order of protection may be entered against them), they must be immediately connected to an immigration law expert who can advise them on how to resolve the situation without getting a disposition or order that may lead to their deportation. A list of useful resources is found below. Use Civil Advocacy to Assist Clients in Pending or Future Immigration Proceedings Stemming from Criminal Charges. Civil legal aid organizations and advocates can, in some circumstances, use current or new forms of civil advocacy to assist their clients. For example, civil legal aid organizations and advocates can proceed thus: n Help Clients Obtain Certificates of Rehabilitation. Civil legal aid organizations and advocates can help immigrants obtain certificates from the state indicating their rehabilitation or good character following a criminal disposition. 6 While these certificates typically do not erase a criminal ground of removal, they may be helpful if the client is eligible for a discretionary waiver of removal and other forms of discretionary relief. 7 n Advocate on Behalf of Immigrants in Family or Juvenile Court. Organizations and advocates working in family or juvenile court can help immigrants who have criminal dispositions but who may qualify for certain forms of relief from removal. For example, findings of juvenile delinquency in family or juvenile court generally do not trigger negative immigration consequences. 8 Thus advocating clients criminal cases to proceed in family or juvenile court rather than criminal court helps them avoid criminal grounds of deportation and may, in some circumstances, help certain young undocumented immigrants gain special legal status. 9 For clients who are survivors of domestic violence and who committed certain offenses, family court proceedings can help establish whether they qualify for waivers of criminal bars to adjust their status to lawful permanent residents Information about obtaining certificates of rehabilitation can be found at the Legal Action Center s 7 See, e.g., Representing Immigrant Defendants, supra note 1, at See id. at ; see also In re Devison-Charles, 22 I&N (2000). 9 Under certain specific circumstances, young undocumented immigrants may be eligible for Special Immigrant Juvenile Status (SIJS) and a special waiver of certain criminal grounds of inadmissibility. More information on eligibility requirements and how to apply may be found at the Immigrant Legal Resource Center s resources/sijs/2005%20sijs%20manual%20complete.pdf, the New York Online SJIS Guide s columbia.edu/childimmigrant, and the National Immigrant Justice Center s SIJSTrainingManual2006.pdf. 10 Certain domestic violence survivors may be eligible to adjust their status through a self-petition under the Violence Against Women Act (VAWA) and may receive special waivers of criminal grounds of inadmissibility. More information on eligibility requirements and how to apply may be found at Asista s Petitiondocs/Manuals/VAWA_Manual_-_ILRC.pdf. 230 Clearinghouse REVIEW Journal of Poverty Law and Policy n July August 2007

5 Avoiding Unintended Consequences in Civil Advocacy for Criminally Charged Immigrants n Develop Immigration Services. Civil legal aid organizations can develop or expand immigration units or experts in-house to assist directly immigrant clients facing removal or seeking asylum, adjustment of status, and naturalization. Alternatively, civil legal aid organizations can develop partnerships with immigrant service organizations to ensure that they meet the needs of their criminally charged immigrant clients. Additional Resources For more information, civil legal aid organizations, advocates, immigrants and their families can consult experts and find resource materials from the following organizations: Immigrant Defense Project of the New York State Defenders Association ext Immigrant Legal Resource Center The National Immigration Project National Legal Aid and Defender Association Washington Defender Association Immigration Project Clearinghouse REVIEW Journal of Poverty Law and Policy n July August

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