DETAILED TABLE OF CONTENTS

Transcription

1 DETAILED TABLE OF CONTENTS Dedication... v Preface... vii Acknowledgments... xiii Glossary of Acronyms... xv Table of Decisions Subject-Matter Index Introduction... xlii Chapter One: An Overview of Basic Immigration Terms and the Immigration Law System... 1 Who (or What) Is Your Client? An Introduction to Statuses... 1 Citizenship and Naturalization... 3 The Lawful Permanent Resident ( Green-Card Holder)... 3 The Nonimmigrant Visa Holder... 4 Persons from the Caribbean, Canada, and Mexico who do not need visas tourists and temporary workers... 5 The Visa Waiver Program (tourists without visas)... 5 Other Protective Categories... 6 Refugees and asylees... 6 Withholding of removal... 7 Protection under the Convention Against Torture... 8 Temporary protected status... 8 Parole... 9 Deferred action DACA Order of supervision No Status: Present Without Inspection or Admission, or Overstay Other Useful Terms Notice to Appear Form I Visa Employment Authorization Document Refugee Travel Permits and Re-entry Permits Authority over Immigration Law Enforcement: A Look at the Government Agencies The U.S. Department of Homeland Security: USCIS, ICE, and CBP An arrest at the border xvii

2 xviii An arrest upon termination of sentence Arrest while out in the community The U.S. Department of State The Executive Office for Immigration Review The Board of Immigration Appeals Attorney General Review The Administrative Appeals Office The Agencies at Work: Removal Proceedings Notice to Appear Course of Proceedings The Burden of Proof Applications for Relief Appeal to the Board of Immigration Appeals Travel While a BIA Appeal Is Pending Review in Federal Court Federal Judicial Review The REAL ID Act Jurisdiction No review of discretionary determinations Petitions for Review to the Courts of Appeals Petitions for Habeas Corpus to the Federal District Courts Tips and Tools of the Trade Federal Bureau of Investigation (FBI) rap sheet Accurint PACER FOIA requests Polygraph examinations Westlaw, LEXIS, AILALink, AILA.org, and Fastcase Psychological and medical evaluations Country-condition experts Country-condition sources of information (websites) Confirmation-of-appointment letters Intake sheets Sources of Legal Authority Citations to Key Legislation Appendices 1A: Contact Information for Immigration Courts B: Structure of CBP C: Structure of ICE... 44

3 DETAILED TABLE OF CONTENTS xix 1D: Structure of USCIS E: Sample Notice to Appear F: FBI Rap Sheet Request G: Appointment Confirmation Letter H: Client Checklist for Analyzing a Case with a Crime I: Client Information Sheet Chapter Two: The Definition of Conviction According to Immigration Law The Statutory Definition of Conviction The Beyond a Reasonable Doubt Standard and Municipal Court Proceedings Marijuana prosecutions Court Martials Finality Withholds or Deferrals of Adjudication A withhold with no penalty Pretrial Intervention or Diversion Admissions to the prosecutor do not qualify Expungements and Record Sealings First offender/youthful offender provisions The Ninth Circuit s treatment of FFOA dispositions and their state counterparts The other federal circuits Does an expungement under the FFOA result in a conviction? Pardons The effect of a pardon on a ground of inadmissibility Pardon s effect on naturalization Pardon must be full and unconditional Foreign pardons Post-conviction Relief on the Merits: Matter of Pickering The burden of proof in Pickering-type cases Motions to reopen BIA decisions after Pickering The federal courts approach to Pickering Vacatur found effective in eliminating the conviction Vacatur found ineffective for immigration purposes Vacatur ineffective for naturalization purposes Vacatur granted after removal order executed Ineffective Assistance of Counsel Post-conviction Relief Modifying the Sentence Imposed... 86

4 xx Acts of Juvenile Delinquency Other juvenile acts Foreign Convictions Proof of Convictions Suspensions of Sentence Appendices 2A: Sample Padilla Motion to Vacate Plea, Judgment, and Sentence B: Matter of [redacted], 2012 Newark, N.J. (AAO) C: Memorandum in Support of Admissibility Under INA 212(a)(2) Chapter Three: Consequences of Criminal Activity: Removal from the United States Inadmissibility The Applications of INA 212(a)(2)(A) Knocking at the door Applicants for admission When an LPR seeks admission The Fleuti Doctrine Supreme Court Finds IIRAIRA Amendment to 101(a)(13)(C) Not Retroactive Adjustment of status Visa applicants at American consular posts abroad Change of status Parolees Persons physically present in violation of the law Temporary protected status Naturalization and good moral character Deportability INA 237(a) Deportability vs. Inadmissibility Expedited (Administrative) Removal of Persons Convicted of Crime Relief from Expedited Removal Detention Mandatory Detention Re-entering After Removal: Criminal Prosecution and Reinstatement of Removal Re-entry of Removed Aliens Challenging the underlying order Reinstatement of Removal Limited exception for certain nationality-based benefits U.S. Supreme Court upholds retroactive application of 241(a)(5) How the Government Locates Your Client

5 DETAILED TABLE OF CONTENTS xxi Appendices The Sure Ways Serving time in state or federal detention, both pre and post-trial Filing an immigration application Frequently, But Not Always While reporting to a probation or parole officer When re-entering the United States after a trip abroad Local Law Enforcement and the Enforcement of Immigration Laws Local police A: Sample Motion to Terminate Arriving Alien Status (Conviction vs. Commission) B: Sample Motion to Terminate Arriving Alien Status (False Imprisonment) C: Respondent s Reply to DHS Response on Motion to Dismiss (Arriving Alien) Chapter Four: Consequences of Criminal Activity: Detention Inside the United States Mandatory Detention Cooperating Witnesses Demore v. Kim Prolonged Detention Litigation Post Demore v. Kim Arriving Aliens under INA 235(b) Supreme Court Review Bond Hearings Before the Immigration Court Numerical Limitations and Jurisdiction Matter of Aguilar-Aquino Matter of Joseph Jurisdiction over Custody Issues Arriving aliens Other jurisdiction-stripping classifications Deportable respondents and those who enter without inspection The Release from Custody Requirement When released litigation Circuit split Castaneda v. Souza Does a sentence of imprisonment have to be imposed? Detention for Offense Not Charged on Notice to Appear Releases on or Before October 8, Other Detention Issues

6 xxii Appendices Non Mandatory Detention Cases: The Standard The automatic stay Detention After a Removal Order Detention during judicial review of final removal order Alternatives to detention A: Custody Rule Invoked (Terminates the Transitional Period Custody Rules) B: Section 309 of the IIRAIRA the Transition Rule for 1996 Amendments to the INA C: Section 303(b) of the IIRAIRA Effective Date of INA 236(c) Mandatory Detention D: Memorandum on INA 236(c) s Custody Requirement and the Use of Alternatives to Detention to Meet the Statute s Requirements E: Memorandum of Law in Support of Bond Motion Joseph Motion Arguing Financial Loss to a Victim Did Not Exceed $10,000 for Purposes of INA 101(a)(43)(M) F: Amended Petition for Writ of Habeas Corpus Under 28 USC G: Memorandum in Support of Amended Petition for Writ of Habeas Corpus Under 28 USC H: Motion for Bond Based on Matter of Joseph; Fraud Offense Not an Aggravated Felony Under INA 101(a)(43)(M)/Analyzing Loss to a Victim Chapter Five: Methodology: Classifying Crimes Under the Immigration and Nationality Act Proper Classification of Crimes and the Methodology Analyses and Terms U.S. Supreme Court Recalibrates the Categorical Approach: Descamps v. U.S Categorical Approach: An Elements Approach Taylor v. U.S The Modified Categorical Approach: Divisible Statutes Missing Element Statutes Identifying the Minimal (Least Culpable) Conduct Non-elemental Facts and the Circumstance-Specific Approach Nijhawan v. Holder Matter of H. Estrada The Realistic Probability Test: Gonzales v. Duenas-Alvarez Re-emergence of the Categorical Approach Moncrieffe v. Holder Descamps v. U.S Divisibility

7 DETAILED TABLE OF CONTENTS xxiii Means vs. Elements Divisibility after Descamps: Supreme Court Cases Divisibility After Descamps: Circuit Court Developments Alternative Statutory Provisions: Tenth Circuit on Distinct Mentes Reae as Means, not Elements Alternative Statutory Provisions: Ninth Circuit on Controlled-Substance Schedules. 255 Alternative Statutory Provisions: First Circuit on Controlled-Substance Schedules Alternative Statutory Provisions: Fifth Circuit on General Export Statute Facts-Based Approach: Third Circuit and Simple Assault Essential Elements Only: Ninth Circuit on Felony Gang Enhancement Essential Elements Only: Ninth Circuit on Disjunctive Burglary Statute Essential Elements Only: Fourth Circuit on Disjunctive Larceny Statute Essential Elements Only: Eleventh Circuit Throwing a Deadly Missile Divisibility after Descamps: Board of Immigration Appeals The Realistic Probability Test Matter of Chairez II: Alternative Statutory Phrases Matter of Chairez III Matter of Silva-Trevino The AG s Previous Methodology for Determining Moral Turpitude The Realistic Probability Test Moral Turpitude as a Non-elemental Fact The Federal Courts Response to Silva-Trevino BIA Limits Silva-Trevino The Attorney General s 2015 Vacatur Matter of Silva-Trevino (BIA 2016) Expanded Discussion: Arguments Against a Realistic Probability Test The Realistic Probability test does not apply in expressly overbroad statutes Moncrieffe v. Holder: Distribution without remuneration of a controlled substance Matter of Ferreira: Mismatched Controlled Substance Schedules Mellouli v. Lynch: Mismatched Controlled-Substance Schedules Singh v. U.S. Att y Gen.: Counterfeit versus controlled substances Swaby v. Yates: Mismatched Schedules, Realistic Probability Test Does Not Apply. 274 Matter of Chairez I: Antique Firearm Exception Matter of Silva-Trevino: Indecency with a Child Circuit Split: The Realistic Probability Test, to be or not to be Points to Make: Arguing Against the Realistic Probability Test Chapter Review: A Review of Pertinent Terms Appendices 5A: Unpublished IJ Decision (18 USC 1860 Not a CIMT)

8 xxiv 5B: Excerpt from Board of Immigration Appeals Brief C: Sample Memorandum in Support of INA 240A(a) Eligibility for Cancellation of Removal D: Respondent s Reply to Government s Opposition to Motion to Reconsider Chapter Six: Crimes Involving Moral Turpitude The Concept of Crimes Involving Moral Turpitude Realistic Probability Analysis Circuit Court Deference to the Agency Felonies and Misdemeanors The elements of the criminal statute control The question of intent Divisible statutes and the record of conviction Aiding and abetting; accessories and conspiracy Specific Offenses and Whether They Involve Moral Turpitude Theft and Larceny Theft Through Fraud; Copyright Infringement Burglary Fraud False Statements Obstruction of Justice; Misprision Crimes of Violence Appendix Crimes Involving Moral Turpitude Crimes Not Involving Moral Turpitude Not Clear if Moral Turpitude Exists Gang Enhancement Failure to Register as a Sex Offender Crimes Involving Children Driving Under the Influence Controlled-Substance Offenses Firearms Offenses Immigration Law Violations A: Motion to Dismiss and Terminate Arriving Alien Status; Conviction Under Florida Theft Statute Not a Categorical CIMT Chapter Seven: Aggravated Felonies The INA Definition of Aggravated Felony Murder Sexual Abuse of a Minor

9 DETAILED TABLE OF CONTENTS xxv Statutory Rape Type Cases Drug-Trafficking Crimes Federal controlled-substance law: federal drug trafficking crime First-time simple possession not an aggravated felony except for flunitrazepam Recidivist simple possession statutes State controlled-substance convictions Misdemeanor trafficking? Offenses involving the element of illicit trafficking Divisible statutes When trafficking isn t trafficking Distribution Without Remuneration: Moncrieffe v. Holder Mis-matched Controlled Substance Schedules Prescription Drugs Purchase of a Controlled Substance State Simple-Possession Offenses: A Mixed Approach The hypothetical felony approach The guidelines approach Dueling circuits The Supreme Court s decision in Lopez v. Gonzales The Federal Recidivist Statute The Supreme Court s decision in Carachuri-Rosendo The BIA s response to Carachuri-Rosendo Charging phase vs. sentencing phase Prosecutorial discretion Is there a conviction? Attempts and Conspiracies The Definition of Crime of Violence Mens Rea: The Levels of Intent The Supreme Court s interpretation of crime of violence Recklessness and the use of force Force versus contact Matter of Francisco-Alonzo The Board s Analysis in Matter of Chairez Particular Offenses Not crimes of violence Crimes of violence Unauthorized use of a motor vehicle Firearms Offenses

10 xxvi Whether a state firearms offense is described in a federal statute Third Circuit on described in : Bautista v. U.S. Att y Gen Supreme Court on described in : Torres v. Lynch Theft and Burglary Crimes Aiding and abetting Burglary Possession of stolen property Receipt of stolen property Embezzlement Alien Smuggling Offenses That Depend on the Sentence Imposed Perjury Commercial bribery; obstruction of justice Bail jumping Offenses That Depend on the Amount of Funds Involved Contesting Loss Findings; Understanding Relevant Conduct Offenses That Depend on Commercial Advantage Aggravated Felony Must It Be a Felony? Misdemeanor Crimes of Violence Misdemeanor Sexual Abuse of a Minor Attempts and Conspiracies Appendices 7A: Petition for Review of Denial of Naturalization Application B: Memorandum in Support of Cancellation Eligibility C: Sample Motion to Terminate Removal Proceedings D: Motion to Dismiss Aggravated Felony Firearm Charge under the Definition at INA 101(a)(43)(E) E: Motion to Terminate Aggravated Felony Charge under INA 101(a)(43)(A) Sexual Abuse of a Minor Chapter Eight: Classifications Beyond Moral Turpitude and Aggravated Felony Controlled Substance Offenses The Definition of Controlled-Substance Offense Personal-use exception Variations on the Personal Use Exception Drugs, but Not Controlled Substances Solicitation Offenses Paraphernalia Possession must be accompanied by intent to use

11 DETAILED TABLE OF CONTENTS xxvii Paraphernalia must be tied to a federal controlled substance Simulated or imitation controlled substances Reason to Believe Drug Abusers and Addicts Firearms Offenses Firearm and Destructive Device Defined Firearm must be an element Firearms offense not a ground of inadmissibility No Reason to Believe or Admission of the Essential Elements Standards Apply Money Laundering Reason to Believe Crimes of Domestic Violence Offenses Included as Ground of Deportability Crime of Domestic Violence Defined The Domestic Violence Victim Defining the victim ; BIA adopts a circumstance-specific approach Child Abuse Violations of Protection Orders Applies to convictions after September 30, Domestic Violence Offense as a Crime Involving Moral Turpitude Alien Smuggling Limited Exceptions for Smuggling an Immediate Family Member Alien Smuggling Defined The Crime of Alien Smuggling Crimes Involving Failure to Register; Visa and Passport Fraud Failure to Register Visa and Passport Fraud Visa fraud as a crime involving moral turpitude and an aggravated felony Immigration document fraud Passport fraud Export Law; National Security Violations Export Law Violations: A Matter of National Security Public Safety and National Security Failure to Register as a Sex Offender The Adam Walsh Act Unlawful Voting Appendices 8A: Sample Motion to Dismiss CIMT and RTB Charges

12 xxviii 8B: Unpublished BIA Decision on Drug Paraphernalia and Pickering Vacatur Standard C: Bond Motion Excerpt (Florida Firearms Statute) Not a Categorical Match to Federal Firearm Definition D: Motion to Dismiss Charge under INA 237(a)(2)(B), New York Facilitation Conviction under NYPL not a Categorical Controlled Substance Violation E: Motion to Dismiss Firearm Charge under INA 237(a)(2)(C) Chapter Nine: Consequences of Specific Criminal Activity How to Use This Chapter Consequences of Crimes Involving Moral Turpitude Inadmissibility, Including Adjustment of Status and Visa Eligibility Admission of the essential elements Petty offense and youthful offender exceptions Political offense exception Deportability/Removability Defining admission Multiple criminal convictions Mandatory Detention Voluntary Departure Pre-commencement or early stage of removal proceedings Voluntary departure at conclusion of removal proceedings Asylum, Withholding of Removal, and Convention Against Torture Asylum Withholding of removal Political offense exception Convention Against Torture Naturalization Revocation of naturalization (de-naturalization) Criminal prosecution for knowing illegal procurement of citizenship A defense attorney s obligations Consequences of an Aggravated Felony Conviction Inadmissibility, Including Adjustment of Status and Visa Eligibility Deportability/Removability Mandatory Detention Voluntary Departure Summary of caveat eligibility for individual with aggravated felony conviction seeking voluntary departure: Asylum and Withholding of Removal

13 DETAILED TABLE OF CONTENTS xxix Judicial review of the particularly serious crime determination Political offense exception Convention Against Torture Naturalization Revocation of naturalization (denaturalization) Consequences of a Controlled Substance Conviction Inadmissibility, Including Adjustment of Status and Visa Eligibility Reason to believe Deportability/Removability The personal use exception Does the personal use exception extend to paraphernalia? Compare deportability with inadmissibility Mandatory Detention Voluntary Departure Pre-commencement or early stage of removal proceedings Conclusion of Proceedings Asylum and Withholding of Removal Naturalization Revocation of naturalization (denaturalization) Consequences of a Firearms Offense Inadmissibility, Including Adjustment of Status and Visa Eligibility Deportability/Removability Cross-reference with the aggravated felony definition Supreme Court: Torres v. Lynch Mandatory Detention Voluntary Departure Pre-commencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Revocation of naturalization (denaturalization) Consequences for Money Laundering Offenses Inadmissibility, Including Adjustment of Status and Visa Eligibility State money-laundering offenses Moral turpitude Deportability/Removability Mandatory Detention Voluntary Departure

14 xxx Pre-commencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Revocation of naturalization (denaturalization) Consequences of a Domestic Violence Conviction The Definition Inadmissibility, Including Adjustment of Status and Visa Eligibility Cross-reference to crimes involving moral turpitude Deportability/Removability Mandatory Detention Voluntary Departure Pre-commencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Revocation of naturalization (denaturalization) Consequences of Alien Smuggling Inadmissibility, Including Adjustment of Status and Visa Eligibility Deportability/Removability Cross-reference with the aggravated felony definition Mandatory Detention Voluntary Departure Pre-commencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Revocation of naturalization (denaturalization) Falsification of Documents, and Visa and Passport Fraud Inadmissibility, Including Adjustment of Status and Visa Eligibility Visa fraud Possession vs. use Civil or criminal document fraud violations under INA 274C Deportability/Removability Registration and Visa Fraud Civil or criminal document fraud violations under INA 274C Mandatory Detention Voluntary Departure

15 DETAILED TABLE OF CONTENTS xxxi Pre-commencement or preliminary stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Revocation of naturalization (denaturalization) Consequences of Export Law Violations Inadmissibility, Including Adjustment of Status and Visa Eligibility Deportability/Removability Mandatory Detention Voluntary Departure Pre-commencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Adam Walsh Act Appendix 9A: Crimes and Possible Consequences Chart Chapter Ten: Immigration Defense: Waivers and Other Relief Burden of Proof and Persuasion Categorical approach in the relief phase Mandatory Bars and DHS s Burden of Proof Adjustment of Status Available to Permanent and Non Permanent Residents Discretionary Benefit Jurisdiction Aggravated Felony Offenses Firearms Offenses Domestic Violence Offenses Visa and Registration Offenses Export Violations Waivers Under INA 212(h) The 15-Year Waiver The Extreme Hardship Waiver The Battered Spouse and Child Waiver Special Rules for Lawful Permanent Residents LPRs with aggravated felony and other convictions Retroactivity of the amendment Important circuit case law: defining admission

16 xxxii The analysis: understanding admission The analysis: understanding the criminal bar s language Matter of J-H-J Matter of Alyazji The analysis: what about entry without inspection? The next move: DHS argues subsequent re-entries are admissions LPRs with non-aggravated felony convictions Defining Lawful Continual Residence Tolling of Seven-Year Period: Initiation of Removal Proceedings Arriving Aliens or Those Adjusting Status BIA abandons Matter of Sanchez Crimes occurring prior to admission that were not revealed Limited Availability of INA 212(h) for Persons Convicted of Violent or Dangerous Crimes INA 209(c) Waiver for Refugees and Asylees Compare with the INA 212(h) Waiver Use of INA 209(c) by Certain Lawful Permanent Residents to Avoid Removal Asylum and Withholding of Removal Asylum Withholding of or Restriction on Removal Under the INA Defining the particularly serious crime Withholding and Deferral Under the Convention Against Torture Cancellation of Removal Continuous Residence Versus Lawful Permanent Resident Status Residence Cannot Be Imputed to Minor Children Living Abroad Defining Admission Offense need not be charged in removal proceedings to stop the time The Requirement of a Lawful Admission Individuals Who Are Ineligible for Cancellation Combining waivers Special Rule for Battered Spouses Special Rule Cancellation of Removal: NACARA No Reinstatement of Removal The Waiver That Keeps Giving: INA 212(c) (repealed 1996) Overview of Eligibility Criteria for 212(c) Waiver Introduction Advance Permission to Return to Unrelinquished Domicile Case Law Expands Eligibility to Those in Deportation Track The Immigration Act of

17 DETAILED TABLE OF CONTENTS xxxiii The Antiterrorism and Effective Death Penalty Act of The U.S. Supreme Court Decision: INS v. St. Cyr The 2004 Regulation Eligibility cut-off dates Individuals in exclusion proceedings IIRAIRA definition of aggravated felony retroactive: the summer of Persons convicted by trial Utilizing the waiver to cure post-1996 convictions (persons already in deportation proceedings) INA 212(c) Eligibility Criteria Persons wrongfully removed prior to St. Cyr, Judulang, or Abdelghany Re-entry after pretermission of 212(c) application and deportation Gabryelsky filings: adjustment of status combined with INA 212(c) Combining INA 212(c) and Cancellation of Removal Affirmative Applications for 212(c) Naturalization After a Waiver Under INA 212(c) Voluntary Departure Precommencement or Preliminary Stage of Proceedings Voluntary Departure at Conclusion of Proceedings Is Your Client an American Citizen? An Introduction to Derivative and Acquired Citizenship Watch for Effective Dates Acquired Citizenship at Birth Derivative Citizenship After Birth Individual who turned 18 before February 27, Naturalization as a Defense to Deportation Termination of Removal Proceedings for Naturalization Soldiers and Veterans Relief from Alien Smuggling Charges Relief from Deportability and Inadmissibility, Absent a Conviction Waiver for smuggling immediate family members Cancellation of removal Relief from a Conviction for Alien Smuggling (An Aggravated Felony) Adjustment of status INA 212(h) waiver Cancellation of removal INA 212(c) waiver Asylum and withholding of removal Naturalization

18 xxxiv Nonimmigrant Visa Waiver Under INA 212(d)(3) Introduction: My son s been deported for an aggravated felony; can he ever come back? Jurisdiction Applications at the consulate Applications at a port of entry Separate permission to re-enter after deportation or removal (Form I-212) not required Does not waive security or terrorism grounds of inadmissibility Factors for Consideration Defending the Criminal Charge of Re-entry After Removal Appendices Collaterally attacking the underlying removal order A: Sample Motion to Reopen Sua Sponte Based on New Case Law B: Unpublished BIA Decision re: Sua Sponte Motion to Reopen for INA 212(c) After Removal Order, Conviction by Trial C: Brief Excerpt: Particularly Serious Crime Analysis, Asylum Versus Withholding D: Sample Motion to Pretermit Waiver Application Under INA 212(h) E: Sample Memorandum in Support of INA 212(h) Eligibility F: Unpublished BIA Decision re: Cancellation of Removal, Waiver of Inadmissibility Under INA 212(h) Chapter Eleven: Immigration Defense: Fashioning a Plea to Avoid Adverse Immigration Consequences Avoiding Adverse Immigration Consequences Avoiding a Conviction Through Pretrial Diversion Beware of admissions to the crime Federal First Offender Act Treatment; 18 USC Keep the Case in Juvenile Court The Petty Offense Exception Section 237 s version of the petty offense exception Avoiding a Conviction of a Crime Involving Moral Turpitude Why It Is Important (A Quick Rundown on Consequences) Eligibility for permanent resident status Mandatory detention Naturalization What Is Moral Turpitude? Fraud crimes Theft offenses: defining deprive Embezzlement

19 DETAILED TABLE OF CONTENTS xxxv Burglary Working with a divisible statute: control the conviction record Alternative pleas Crimes of violence DUIs (operating under the influence) Avoid Multiple Counts Summary Examples of Successful Plea Bargaining to Avoid a Crime Involving Moral Turpitude Avoiding the Aggravated Felony Conviction Why It Is Important (A Quick Rundown on Consequences) Limited eligibility for relief from removal and mandatory detention Barred from asylum No naturalization for convictions entered after November 29, Avoiding an Aggravated Felony Keep the Sentence Under One Year Avoiding Loss to a Victim, or Funds, Exceeding $10, Avoiding Crime of Violence by Pleading to a Non Specific Intent Crime Avoiding Alien Smuggling/Aggravated Felony Conviction Summary Examples of Effective Plea Bargaining to Avoid Aggravated Felony Avoiding Deportability for Domestic Violence Offenses Creating Eligibility for Relief Appendix INA 212(h) Less than 30 grams of marijuana Cancellation of Removal Avoid offenses that toll the seven years of legal residence Avoid the aggravated felony conviction Withholding of Removal and Asylum Naturalization eligibility Creating a Good Record Through the Plea Agreement and Plea Colloquy Defense and immigration counsel must work as a team Plea Agreements to Avoid (Bad Plea Deals) False statements and currency transactions Aggravated assault and probation only Multiple counts days in jail Five-year prison sentence A: Sample Memorandum for Fashioning a Plea

20 xxxvi Chapter Twelve: Visas for Cooperating Witnesses S Status The Statute The Regulations Conditions of Status Adjustment to Permanent Resident Status Under S The statute The regulations Special requirements for family members Miscellaneous Tips and Advice About S Status Asylum, Withholding and CAT as alternatives Convention Against Torture for the principal family member/witness T Status The Statute New 2017 Regulations Severe form of trafficking is force, fraud, or coercion Extreme hardship defined Physical presence requirement Application Procedure Effect of pending immigration proceedings Applicants with final orders of removal Annual cap on number of admissions Revocation of status Family Members Duration of nonimmigrant status and application for permanent residency U Status The Statute Criminal activity defined The Regulation Filing Cap and Backlogs Qualifying family members Persons in removal proceedings Age-out protection Permanent Resident Status: A Change in Focus Family Members Not Already in U Status Jurisdiction

21 DETAILED TABLE OF CONTENTS xxxvii Appendix 12A: Form I-854, Inter-Agency Alien Witness and Informant Record Chapter Thirteen: Preparing and Presenting Applications That Waive a Criminal Conviction Venues: an Overview of Jurisdiction Consulate Cases: USCIS Jurisdiction over Waivers Adjustment of Status: USCIS Jurisdiction, Possible Interview Immigration Court Nonimmigrant Visas at Consulate: Admissibility Review Office Immigration and Customs Enforcement: Stays of Removal Filing Fees Rules Regarding Biometrics The Universal List: Evidence in Support of a Waiver Evidence Relating to the Applicant Evidence Relating to Family Members Adjustment of Status Forms, Fees, and Attachments When Filing with the Immigration Court Adjustment Is Discretionary INA 212(h) Waivers 15-Year, Hardship, and Battered Spouse or Child Form and Fee When Filing with the Immigration Court Emphasis on Hardship to Family Members Discretion Must Be Warranted, Notwithstanding Hardship Refugee Waiver Under INA 209(c) Waiver Under the Pre-AEDPA INA 212(c) (repealed in 1996) Form and Fee Emphasis on Unrelinquished Domicile; All Equities Are Relevant Cannot have served five years in prison for an aggravated felony or felonies A balancing of the equities Cancellation of Removal INA 240A(a) Form and Fee Filing with the Immigration Court Emphasis on Residency Requirements; All Equities Apply A balancing of the equities Special Rule Cancellation of Removal Form and Fee Supporting Documents

22 xxxviii Waiver Under INA 212(d)(3)(A) Form and Fee Information Required Contacting LegalNet for Assistance When Consul Declines to Accept Waiver Memoranda of Law and Witness Lists Before USCIS Pretrial Statements to the Immigration Court Witnesses Witness list Choosing witnesses Working with witnesses The REAL ID Act and Credibility Details: The time and place of hearing, the need for an interpreter Conclusion Applications Filed After an Order of Removal Stay of Deportation: Form I Criteria Permission to Reapply for Admission After a Removal Order Criteria Appendices 13A: Sample Respondent s Pretrial Statement B: Statement in Support of Naturalization Eligibility APPENDICES 1A: Contact Information for Immigration Courts B: Structure of CBP C: Structure of ICE D: Structure of USCIS E: Sample Notice to Appear F: FBI Rap Sheet Request G: Appointment Confirmation Letter H: Client Checklist for Analyzing a Case with a Crime I: Client Information Sheet A: Sample Padilla Motion to Vacate Plea, Judgment, and Sentence B: Matter of [redacted], 2012 Newark N..J. (AAO) C: Memorandum in Support of Admissibility Under INA 212(a)(2) A: Sample Motion to Terminate Arriving Alien Status (Conviction vs. Commission)

23 DETAILED TABLE OF CONTENTS xxxix 3B: Sample Motion to Terminate Arriving Alien Status (False Imprisonment) C: Respondent s Reply to DHS Response on Motion to Dismiss (Arriving Alien) A: Custody Rule Invoked (Terminates the Transitional Period Custody Rules) B: Section 309 of the IIRAIRA the Transition Rule for 1996 Amendments to the INA C: Section 303(b) of the IIRAIRA Effective Date of INA 236(c) Mandatory Detention D: Memorandum on INA 236(c) s Custody Requirement and the Use of Alternatives to Detention to Meet the Statute s Requirements E: Memorandum of Law in Support of Bond Motion Joseph Motion Arguing Financial Loss to a Victim Did Not Exceed $10,000 for Purposes of INA 101(a)(43)(M) F: Amended Petition for Writ of Habeas Corpus Under 28 USC G: Memorandum in Support of Amended Petition for Writ of Habeas Corpus Under 28 USC H: Motion for Bond Based on Matter of Joseph; Fraud Offense Not an Aggravated Felony Under INA 101(a)(43)(M)/Analyzing Loss to a Victim A: Unpublished IJ Decision (18 USC 1860 Not a CIMT) B: Excerpt from Board of Immigration Appeals Brief C: Sample Memorandum in Support of INA 240A(a) Eligibility for Cancellation of Removal D: Respondent s Reply to Government s Opposition to Motion to Reconsider A: Motion to Dismiss and Terminate Arriving Alien Status; Conviction Under Florida Theft Statute Not a Categorical CIMT A: Petition for Review of Denial of Naturalization Application B: Memorandum in Support of Cancellation Eligibility C: Sample Motion to Terminate Removal Proceedings D: Motion to Dismiss Aggravated Felony Firearm Charge under the Definition at INA 101(a)(43)(E) E: Motion to Terminate Aggravated Felony Charge under INA 101(a)(43)(A) Sexual Abuse of a Minor A: Sample Motion to Dismiss CIMT and RTB Charges B: Unpublished BIA Decision on Drug Paraphernalia and Pickering Vacatur Standard C: Bond Motion Excerpt (Florida Firearms Statute) Not a Categorical Match to Federal Firearm Definition D: Motion to Dismiss Charge under INA 237(a)(2)(B), New York Facilitation Conviction under NYPL not a Categorical Controlled Substance Violation E: Motion to Dismiss Firearm Charge under INA 237(a)(2)(C)

24 xl 9A: Crimes and Possible Consequences Chart A: Sample Motion to Reopen Sua Sponte Based on New Case Law B: Unpublished BIA Decision re: Sua Sponte Motion to Reopen for INA 212(c) After Removal Order, Conviction by Trial C: Brief Excerpt: Particularly Serious Crime Analysis, Asylum Versus Withholding D: Sample Motion to Pretermit Waiver Application Under INA 212(h) E: Sample Memorandum in Support of INA 212(h) Eligibility F: Unpublished BIA Decision re: Cancellation of Removal, Waiver of Inadmissibility Under INA 212(h) A: Sample Memorandum for Fashioning a Plea A: Form I-854, Inter-Agency Alien Witness and Informant Record A: Sample Respondent s Pretrial Statement B: Statement in Support of Naturalization Eligibility