INDEX Alphabetization is word-by-word (e.g., R visas precedes REAL ID Act )

Transcription

1 INDEX Alphabetization is word-by-word (e.g., R visas precedes REAL ID Act ) A AAO. See Administrative Appeals Office Abuse. See Child abuse; Domestic violence Abuse of discretion standard of review, 25 ACCESS (Agreements of Cooperation in Communities to Enhance Safety and Security) immigration law enforcement, 142 Accessory after fact plea, 452 Accurint tool in criminal-alien law practice, 31, 498 Adam Walsh Child Protection and Safety Act of 2006 failure to register as sex offender, 278 Addicts controlled substance offenses, 259 ground for deportation, 259 Address, change of registration requirement, 272, 281, 337 Adjustment of status advance parole, 7 8 aggravated felony offenses, 307, 348 alien smuggling charges, 329, 416 application for, defined, discretionary relief, 27, , domestic violence offenses, 325, export violations, 277, , 350 failure to register, 332 falsification of documents, firearms offenses, 316, 349 ground of inadmissibility, Homeland Security Department (DHS), 351n27 jurisdiction, money laundering offenses, Notice to Appear, 17 permanent and nonpermanent residents, availability, 346 registration offenses, 350 relief under, section 212(c) waiver in conjunction with, , section 212(h) waiver in conjunction with, T visa applicants, U status, , 487 visa fraud, , 350 as waiver, Administrative Appeals Office (AAO) overview, 16 17, 25 T status, denial of, Administrative orders, challenge to as defense to criminal charge of re-entry after removal, Admissions to prosecutor, required for diversion effect of, 77 Advance parole adjustment of status, 7 8 Adverse immigration consequences, avoiding federal first offender treatment, juvenile delinquency, methods to, petty offense exception, , 447 pretrial diversion, state first offender programs, 442 youthful offenders, AEDPA. See Antiterrorism and Effective Death Penalty Act of 1996 A-file with DHS, 11 FOIA requests, 32, 392 method of agencies locating client, 139 re-entry after removal, 134 Africa temporary protected status (TPS), 7 Agencies, government locating clients with criminal convictions by,

2 Aggravated assault IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. overview, Aggravated assault 210, 211, 212 plea, 448, 462 Aggravated felonies. See also specific offenses adjustment of status, 307, 348 asylum and withholding of removal, , 366, , 450 attempts, 218, 255 cancellation of removal, 458 case law, classification of crimes, 188, 189, consequences of conviction, , 341, conspiracy, 218, 255 Convention Against Torture (CAT), , 450 crimes of violence, , 253 definition of, , deportability/removability, 308, 381, , 450 federal, state, and certain foreign convictions, inadmissibility, adjustment of status, and visa eligibility, 307 judicial review of particularly serious crime determination, 310 LPRs and waivers, mandatory detention, 308, 450 misdemeanors treated as, modified categorical approach, , 348 naturalization, 311, 414, 450 non-elemental facts, , 198 offenses that depend on amount of funds involved, offenses that depend on commercial advantage, offenses that depend on sentence imposed, 250 pardons, 84 plea to avoid, section 212(c) waiver, , 510 sentence for, term of imprisonment, voluntary departure, Aggravated felons, expedited removal of overview, relief from, Aggravated fleeing and eluding plea, 449 Aggravated stalking 212 plea, 449 Aiding and abetting aggravated felonies, classification of crime, AILALink tool in criminal-alien law practice, AILA.org tool in criminal-alien law practice, Alien smuggling aggravated felony, 218, , 329, , 452 asylum and withholding of removal, 331 consequences of, , , 342 Convention Against Torture (CAT), 331, 417 crime of, defined, 270 deportability/removability, , 329 immediate family member, exception for, , inadmissibility, adjustment of status, and visa eligibility, , naturalization, 331 plea, 452 relief, adjustment of status, 416 asylum and withholding of removal, American Immigration Lawyers Association

3 INDEX cancellation of removal, 415, 416 deportability and inadmissibility, absent a conviction, naturalization, 417 section 212(c) waiver, 416 section 212(h) waiver, 416 voluntary departure, 330 American citizens derivative citizenship, at birth, citizenship at, children born outside U.S., LPRs, 2 requirements for, 2 3 status of, 2 3 American Immigration Law Foundation practice advisory of, 28 Amnesty programs adjustment of status, See also Adjustment of status reinstatement of removal, 137 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) key legislation, 34 section 212(c) waiver, 129, 130, , 423, Appeals AAO. See Administrative Appeals Office Attorney General review, 16, 24 BIA. See Board of Immigration Appeals bond determination, 154, 155, 156 automatic stay during, petitions for review to Court of Appeals, 23 24, 25, 26, 27 29, 131 removal proceedings, T status, denial of, 477 Applicants for admission inadmissibility, 122, 127 Applications for waiver generally, 495 adjustment of status, 351, applicant in U.S., battered spouse and child, 351, , embassy, 495, 496 evidence in support of waiver, applicant, evidence relating to, family members, evidence relating to, family members, evidence relating to, immigration court, 497 memoranda in support of alternate filing for section 212(c) waiver, of eligibility for naturalization, Arriving aliens memoranda of law, , , before USCIS or American Embassy, other government agencies, 497 preparation and presentation of, pretrial statement, sample, refugee waiver under section 209(c), , section 212(c) waiver, , section 212(h), venues, 495, witness list, , 531 AR-11 form change of address, 272, 281, 337 Arizona detention centers, 43, 44 immigration courts and judges, 46 Offices of Chief Counsel, 39 REPAT program, 138 Armed Criminal Career Act of 1984 (ACCA) classification of crimes, 189 Arrest at border, 13 upon termination of sentence, 13 while out in community, Arriving aliens adjustment of status, change of address card, 272, 281 American Immigration Lawyers Association 557

4 Arson IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. jurisdiction over custody issues, pleas, 462 registration in United States, section 212(h) waiver, smuggling. See Alien smuggling voluntary departure, 308, 309, 402, 404 Arson 213 plea, 448 Assault with deadly weapon, 211 on law enforcement officer, , 211, 212, 213 not crime of violence, 241, 242 plea, 457 Asylum adjustment of status, , See also Adjustment of status aggravated felony conviction as bar to, , 366, 450 alien smuggling charges, 331, controlled substance offenses and, Convention Against Torture (CAT) compared, 6, defined, 5 6 domestic violence offenses, eligibility for relief, 459 entry without inspection, 10 export violations, 340 failure to register, 336 filing fee exception, 20 firearms offenses, 319 immigration status, 5 6 money laundering, Notice to Appear, 17 referral of petition, 17 18n51 relief under, section 209(c) waiver, standard of review, 25 temporary protected status (TPS), 7 visa fraud, 336 Visa Waiver Program (VWP), 4 5 withholding of removal distinguished, 5 6, 366 Athletes nonimmigrant visa holders, 3, 126 Attempt. See also specific offenses aggravated felony, 218, 255 intent, 211 Attempted murder 211 Attempted possession of stolen property aggravated felony, 249 Attorney General discretionary waivers, 362 EOIR, 11 invocation of custody rule, review, 16, 24 temporary protected status (TPS), 7 Attorneys application of waiver, evidence in support applicant, family members, conviction records, obtaining, defense and immigration counsel, importance of working as team, 461 immigration client checklist, Legal Net, 512 notice of appearance of counsel, 21 G-28 form, 459 removal proceedings, right to, 18 tools and strategies for criminal-alien law practice, Authority over immigration law enforcement. See Government agencies; specific agencies Automatic stay during appeal of bond hearing, Automobiles. See Vehicles 558 American Immigration Lawyers Association B Background checks. See Biometrics and background checks Bad checks, passing of 207 plea, 445 Bahamas tourists and temporary workers from, 4

5 INDEX California Bail posting early in criminal process, importance of, 139 Bail jumping aggravated felony, 218 Battered child. See Child abuse Battered spouse adjustment of status, See also Adjustment of status cancellation of removal, deferred action, 8 review of petitions, 17 waiver application, 351, , , Battery on law enforcement officer, , 213 plea, 457 sexual battery, 243 Bermuda tourists and temporary workers from, 4 Beyond a reasonable doubt standard for conviction defined, 74 BIA. See Board of Immigration Appeals Biographic form, G-325 S status, 473 Biographic form, G-325A adjustment of status, 504, 505 Biometrics and background checks application for waiver, convictions, 130 fees, 20, 498, 503, 512 immigration applications requiring, , locating clients with criminal convictions, registration, 272, 273, 274 removal proceedings, application for relief, 20, 21 Birth citizenship at, Board of Immigration Appeals (BIA) attorney general review, 16 bond redetermination for electronic monitoring, contact information, 45 notice of appeal requirements, overview, removal proceedings, review after BIA appeal, 23 24, 25, Bonds, posting of arriving aliens, 160 automatic stay and, client held in detention, deportable respondents, 162 EWI, 160, 162 hearings before Immigration Judge on, , 160, 162, 167 redetermination for electronic monitoring, requests, 139 Border arrest at, 13 Customs and Border Protection (CBP), role of, 7, 11 13, 53 Bribery commercial, 218, 250, 383 of witness, 218, 250 Burden of proof classification of crime, postconviction relief on merits (vacaturs), removal proceedings, 20 withholding of removal, 5 6 refugee or asylum status, 5 6 Bureau of Consular Affairs visa issuance, 14 Bureau of Industry and Security export violations, 276, 277 Burglary aggravated felony, 217 classification of crimes, plea, 445, 446, Business professionals nonimmigrant visa holders, 3, 417 American Immigration Lawyers Association 559 C California detention centers, 43, 44 driver's license laws, 143 immigration courts and judges, Offices of Chief Counsel, 37, 38, 40

6 Canada IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. Canada tourists and temporary workers without visas from, 4 Cancellation of removal admission gained through fraud and, aggravated felonies, 458 alien smuggling charges, 415, 416 battered spouses, continuous residence vs. LPR status, discretionary determination, 27 eligibility for relief and, 458 immigration court filings, 511 ineligible individuals, NACARA 203, relief under, section 212(c) waiver, combined with, 401 special rule, , 511 CAP (Criminal Alien Program) generally, 15 Caribbean tourists and temporary workers without visas from, 4 CAT. See Convention Against Torture Categorical approach classification of crimes, , 191, 195, 198, 199, 200, Cayman Islands tourists and temporary workers from, 4 CBP. See Customs and Border Protection CCA (Child Citizenship Act of 2000) generally, Change of address card registration requirement, 272, 281, 337 Change of status inadmissibility, 126 Checklists for immigration clients, Child abuse battered children cancellation of removal, deferred action, 8 waiver application, 351, , crime of violence, 242 deportability, sexual abuse, , 217, 254, 455 Child born outside U.S. derivative citizenship, Child Citizenship Act of 2000 (CCA) generally, Child pornography aggravated felony, Circumstance-specific approach classification of crimes, Citizenship and Immigration Services (USCIS) adjustment of status, 125, 505 applications for relief, removal proceedings, 21, 21n63 applications for waiver, 496 biometrics and background checks, conviction records, requirement, deferred action, 8 9 memoranda of law before, Notice to Appear, 17 overview, 11 13, 14, 15 parole, 7 structure of (chart), 57 visa applications, 14 Classification of crimes. See also specific offenses aggravated felonies, beyond moral turpitude and aggravated felonies, immigration client checklist, under immigration law, methodology, burden of proof, categorical approach, , 191, 195, 198, 200, circumstance-specific approach, evidence, minimal (or least culpable) conduct approach, 190 modified categorical approach, 560 American Immigration Lawyers Association

7 INDEX Controlled substance offenses , 194, 195, 198, 200, 204, 209, 214, new step-by-step methodology, , 200, 203, 204, 214 realistic probability test, 188, , 194, 197, motion to terminate, non-elemental facts, , , 198, , overview, Clients application of waiver, evidence in support applicants, family members, background checks, running on, 498 confirmation-ofappointment letters, 33, conviction records, immigration client checklist, status of, defining, 1 10 tools and strategies for criminal-alien law practice, Coercion and intimidation as defense to criminal charge of re-entry after removal, 422 Colorado detention center, 44 judges, Commerce Department export violations, 276, 277 Commercial bribery aggravated felony, 218, 250, 383 Confirmation-of-appointment letters as tool in criminal-alien law practice, 33, Connecticut judges, Consequences of criminal act generally, aggravated felonies, , 341 alien smuggling, , 342 chart of, controlled substance offenses, , 341 domestic violence, , 342 export violations, , 342 falsification of documents, , 342 firearms offenses, money laundering offenses, , , 341 visa/passport fraud, , 342 Conspiracy aggravated felony, 218, 255 drug-related, 452 drug trafficking, 153, 221, Consular office waiver application, Continuous residence LPR status distinguished, Contributing to delinquency of minor plea, 455 Controlled substance offenses aggravated felonies, asylum and withholding of removal, consequences of, , 341 Convention Against Torture (CAT), definition of, deportability/removability, drug abusers and addicts, 259 drug paraphernalia, , , inadmissibility adjustment of status, and visa eligibility, deportability compared to, 313 removability and, as independent American Immigration Lawyers Association 561

8 Convention Against Torture (CAT) IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. grounds for, mandatory detention, naturalization, Ninth Circuit variation on first offender/youthful offender provisions, other federal circuits on first offender/youthful offender provisions, pardons, 84 plea, 452, 454, 458, 460, reason to believe, , 312, 314 solicitation offenses, 257 trafficking in, 216, 217, , 452 voluntary departure, 314 Convention Against Torture (CAT) aggravated felonies, , 450 alien smuggling, 331, 417 controlled substance offenses, domestic violence offenses, filing fee exception, 20 firearm offenses, 319 money laundering, petition to court of appeals for denial of protection under, 26 visa/passport fraud, 336 withholding of removal under, 6, 305 6, , , 319, , , 331, 336, , 417, 450 Conviction admissions to prosecutor, required for diversion, effect of, 77 beyond a reasonable doubt standard, 74 defined, diversion, evidence of, 500 expungements, FFOA expungements, finality of, first offender/youthful offender provisions, 78 foreign convictions, juvenile delinquency, acts of, LPRs, 3 modification of sentence, postconviction relief, 95 Ninth Circuit variation on first offender/youthful offender provisions, nonimmigrant visa holders, 4 other federal circuits on first offender/youthful offender provisions, pardons, postconviction relief on merits (vacaturs), 85 94, pretrial intervention, proof of convictions, record sealings, suspensions of sentence, withholds or deferrals of adjudication, Cooperating witnesses mandatory detention, Cooperating witnesses, visas for generally, 3 4, 465 S status, adjustment to permanent resident status, under S status, conditions of status, 469 deferred action, 8, 9 family members, 471, I-854 form, overview, parole, regulations, statute, time to acquire, 472 tips and advice on, written commitment, T status, adjustment of status, annual cap, 477, 478 application procedure, battered spouse, 8 deferred action, American Immigration Lawyers Association

9 INDEX extreme hardship, 475 family members, 477 final order of removal, 476 nonimmigrant status, issuance of, overview, 474 pending immigration proceedings, 476 permanent residency, regulations, 475 review, 17 revocation of status, 477 severe form of trafficking, defined, 475 statute, 474 U status, adjustment of status, , 487 battered spouse, 8 criminal activity, defined, 480 deferred action, 8 family members, , filing, jurisdiction, 487 overview, permanent resident status, regulation, removal proceedings, persons in, review, 17 statute, Counterfeiting aggravated felony, 218, 250, 383 currency or securities, plea, 460 goods, 208 Country-condition experts tool in criminal-alien law practice, 33 Country-condition sources of information (Websites) tool in criminal-alien law practice, 33, 503 Credit card fraud 207 plea, 448, 460 Crimes of violence. See Violence, crimes of Crime victims. See also Cooperating witnesses, visas for in crime of domestic violence, , 460 nonimmigrant visa holders, 3 4 Criminal activity aggravated felons, expedited removal of, relief from, Attorney General, invocation of custody rule, deportability, for criminal record holders, 123 distinguished from inadmissibility, , 313 inadmissibility adjustment of status, change of status, 126 for criminal record holders, entry without inspection, 127 Customs and Border Protection (CBP) good moral character, 127 naturalization, 127 parolees, 126 temporary protected status, 127 visa applicants at American embassies, 126 mandatory detention, 133 release from custody, Criminal Alien Program (CAP) generally, 15 Criminally reckless conduct crimes of violence, , 210, 212 Criminal mischief plea of, 447, 448 Cuban Adjustment Act of 1966 adjustment of status, 505 review under, 17 Cuban citizens and nationals. See also Cuban Adjustment Act of 1966 order of supervision for, 9 unremovable status of, 173 Currency reporting violation plea, 453, 461 Custody rule. See Transition Period Custody Rules (TPCR) Customs and Border Protection (CBP) application for waiver, 497 deferred inspections, 141 overview, 7, parole, 7 re-entry after trip abroad, procedures for, 141 structure of (chart), 53 American Immigration Lawyers Association 563

10 Deadly weapons IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. D Deadly weapons plea, 460 Deceit. See Fraud DED (deferred enforced departure) defined, 8 9 Defenses for re-entry after removal overview, Deferrals of adjudication comparison with pretrial diversion, 440 defined, Deferred action criminal conviction, effect on, 9 defined, 8 9 Deferred enforced departure (DED) defined, 8 9 Deferred inspections clients with criminal records at, 141 Delinquency of minor plea of contributing to, 455 Department of. See name of specific department Deportability aggravated felons, expedited removal of, burden of proof, 20 for criminal record holders, 123 distinguished from inadmissibility, 313 grounds for LPRs, convictions, 3 inadmissibility distinguished from, LPRs, convictions, 3 overview, , 151 pardons, petty offense exception, 444 section 212(c) waiver and, 129, 130, Deportation Criminal Alien Program (CAP), 15 in absentia, 18, 423 naturalization as defense to, notice, 423 permission to reapply for admission after deportation or removal, permission to re-enter after, Form I-212 not required, re-entry after removal, stay of, withholding of removal, 6 Depositions removal proceedings, 19 Derivative citizenship at birth, citizenship at, children born outside U.S., LPRs, 2 naturalized permanent resident before child 18, 3 parents as citizens, 2, 3 relief under, requirements for, 2 3 Destructive devices. See also Explosives defined, trafficking in, 217, 245 Detention, mandatory. See Mandatory detention Detention centers list of, DHS. See Homeland Security, Department of Discretionary determinations. See also specific applications and waivers federal judicial review, 25, 27, 28, 29, 152 Diversion pretrial, Divisible statutes aggravated felonies, 241, 242, 249, 455, 456 classification of crimes, , 194, 197 crime of domestic violence, 264, 265 drug trafficking, firearm offenses, , 203, 204, 205, 206, 208, 212, 321, 446, 449 DOJ. See Justice Department Domestic violence. See also Battered spouse; Child abuse generally, 263 adjustment of status, 325, asylum and withholding of removal, child abuse, consequences of, , 342 Convention Against Torture (CAT), definition of crime of, , 324 deportability /removability, 564 American Immigration Lawyers Association

11 INDEX Equal protection , inadmissibility, adjustment of status, and visa eligibility, 325 mandatory detention, , 213, 268, 325 naturalization, 329 plea, , 460 protection orders, reckless, 242 victims, , 460 DOS. See State Department Driving accidents plea, 452 Driving under influence. See DUI (driving under influence) cases DRO. See Office of Detention and Removal Drug abusers/addicts controlled substance offenses, 259 Drug convictions. See Controlled substance offenses Drug paraphernalia controlled substance offenses, , plea, Drug trafficking crimes. See also Controlled substance offenses aggravated felonies, attempts, 153, 224, 235 conspiracies, 153, 221, 235 federal law, 217, felony classification, state law, misdemeanors, Due process federal judicial review, 24 DUI (driving under influence) cases crime of violence, plea, 447, 448 Duress as affirmative defense to criminal charge of re-entry after removal, 422 E EAR (Export Administration Regulations) export violations, 276 Electronic monitoring. See also Intensive supervision program alternative to detention, 156, 157, 172, , Eligibility for relief cancellation of removal and, 458 naturalization, 459 plea, agreement and colloquy, section 212(h) and, withholding of removal and asylum, 459 El Salvador. See also Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) reinstatement of removal, 136, 377 special rule cancellation of removal, temporary protected status (TPS), 7 Embassies abroad, forms of relief, 495, 496 memoranda of law before, nonreviewability of consular action, 25 visa applicants at, 11, 14, 126 waiver applications, 495, 496 Employment adjustment of status, 504 authorization document, 9, 11 deferred action, 9 EAD, 11 order of supervision, 9 temporary protected status (TPS), 7 Entertainers nonimmigrant visa holders, 3, 417 Entry without inspection (EWI) arriving aliens compared, 160 bond hearing, 160, 162 defined, 10 inadmissibility, 127 mandatory detentions, 162 removal proceedings, 10 voluntary departure, 308, 309 EOIR. See Executive Office for Immigration Review EOIR-27 form notice of appearance of counsel, 21 EOIR-29 form appeal to BIA, 21 EOIR-42A form waiver application, 511 Equal protection federal judicial review, 24 American Immigration Lawyers Association 565

12 Equities Equities cancellation of removal, section 212(c) waiver, 510 Evidence classification of crime, removal proceedings, 19, in support of waiver, applicant, evidence relating to, family members, evidence relating to, 497, before immigration court, 497 universal list of, EWI. See Entry without inspection Executive Office for Immigration Review (EOIR) automated information system on removal proceedings at, 18 BIA contact information, 45 contact information, immigration judges, contact information, Office of Chief Clerk, 45 overview, 11, rules of procedure, 15 Expert witnesses on country conditions, 33 evidence from, 497 Explosives aggravated felony, 217, 245 defined, firearm offenses, IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. Export Administration Regulations (EAR) export violations, 276 Export violations adjustment of status, 277, , 350 asylum and withholding of removal, 340 consequences of, deportability /removability, , 338 inadmissibility and visa eligibility, , mandatory detention, 338 national security issues, naturalization, 340 voluntary departure, 339 Expungements as convictions, under FFOA, Extortion crime of violence, 213, Extreme hardship T status, visas for cooperating witnesses, 475 waiver applications, 351, 352, F Failure to appear on felony change, 218 grounds for, 18 for service of sentence, 218 Failure to register asylum and withholding of removal, 336 crimes involving, , 281 deportability /removability, 334 inadmissibility, adjustment of status, and visa eligibility, mandatory detention, naturalization, visa fraud and, 272, voluntary departure, Failure to stop and render aid after fatal car accident 213 False statements pleas, 461 Falsification of documents. See also Fraud; Visa/passport fraud adjustment of status, , 350 asylum and withholding of removal, 336 consequences of, , 342 deportability/removability, 334 inadmissibility and visa eligibility, mandatory detention, naturalization, voluntary departure, Family members adjustment of status, American Immigration Lawyers Association

13 INDEX Firearms alien smuggling, exception for immediate family member, , visas for cooperating witnesses S status, 471, T status, 477 U status, , 485, waiver applications for, evidence in support, Federal Bureau of Investigation (FBI) rap sheet tool in criminal-alien law practice, 30 31, 63 64, 498, n7 Federal First Offender Act of 1984 (FFOA) adverse immigration consequences, avoiding, expungements, state counterparts to, Federal judicial review arriving aliens, constitutionality, 152, 162 detention during review of final removal order, discretionary determinations, 25, 27, 28 habeas corpus, 26, 29 30, 162, 166 jurisdiction, 23, 27, 152 overview, particularly serious crime determination, 310 petitions for review to Court of Appeals, 23 24, 25, 26, 27 29, 131 REAL ID Act, 26 27, 29 review after BIA appeal, scope of, statutory constriction, 152 voluntary departure, 28 Federal Rules of Civil Procedure habeas petitions under, 30 Fees adjustment of status, application for relief from removal orders, 20 applications for relief, 498 BIA appeals, 21 biometrics, 20, 498, 503, 512 cancellation of removal, 511 hardship to family member, 506 permission to reapply for admission after deportation or removal, 519 removal proceedings, application for relief, 20, 21 section 212(d)(3)(B), 512 special rule cancellation of removal, 511 stay of deportation, 518 waiver under section 212(c), 509 Felonies aggravated. See Aggravated felonies failure to appear before court on, temporary protected status (TPS), 7 FFOA. See Federal First Offender Act of 1984 Fifth Amendment federal judicial review, 24 Filing fee. See Fees Fingerprinting. See Biometrics and background checks Firearms crime of violence, 216 defined, destructive device, defined, offenses, 216, , adjustment of status, 316, 349 aggravated felonies, as aggravated felonies, , 454 asylum and withholding of removal, 319 consequences of, Convention Against Torture (CAT), 319 deportability/removabilit y, inadmissibility and visa eligibility, 262, 316 maliciously firing into occupied dwelling, 213 mandatory detention, 318 moral turpitude, crimes of, 213 motion to terminate removal proceedings, 412 American Immigration Lawyers Association 567

14 First offender, youthful offender provisions IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. naturalization, 319 non-elemental facts, plea, 454, 460 possession by felon, 246 reason to believe, 262 voluntary departure, 318 pardon, 84 trafficking in, 216 First offender, youthful offender provisions convictions, 78 Ninth Circuit variation on, other federal circuits on, Fleeing and eluding plea, 449 special rule cancellation of removal, Fraud aggravated felony, 218 amount of funds involved, , 451 cancellation of removal not available when admission gained through, crimes involving, 204, 207 8, plea, 445, 451, , 460 Freedom of Information Act (FOIA) requests A-file, obtaining, 32, 392 tool in criminal-alien law practice, controlled substance offenses, 314, domestic violence convictions, 328, 329 export violations, 339, 340 firearms offenses, 318, 319 money laundering, 323, , naturalization, 127, 129, 306 7, 311, , 319, 324, 329, 331, 337, 340 visa/passport fraud, , 337 voluntary departure, 304 5, 308 9, 314, Fleuti doctrine 318, 323, 328, elimination of, G 330, , 339, Florida G-28 form detention center, 43 notice of appearance by Government agencies. See also immigration courts and specific agencies counsel, 459 judges, locating clients with G-325 form immigration law enforcement, 142n59 tions by, criminal convic- S status, 473 G-325A form Motor Vehicles Department and immi- Green card holder. See Law- overview, adjustment of status, 504, 505 gration status, ful permanent residents waiver application, (LPRs) G-639 form Offices of Chief Counsel, Guatemala. See also Nicaraguan FOIA requests, Adjustment and Central Gambling Foreign convictions American Relief Act of 1997 aggravated felony, 217 (NACARA) effect of, Georgia reinstatement of removal, Forgery aggravated felony, 218, 136, 137, 377 judges, special rule cancellation of removal, Former Soviet-bloc countries. 35 See also Nicaraguan Adjustment and Central Good moral character American Relief Act of 1997 aggravated felonies, 308 (NACARA) 9, 311 reinstatement of removal, alien smuggling, 330, , American Immigration Lawyers Association

15 INDEX Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) H Habeas corpus petitions federal judicial review, 26, 29 30, 162, 166 Haitian Refugee and Immigrant Fairness Act of 1998 (HRIFA) adjustment of status, 506 reinstatement of removal, Hardship extreme. See Extreme hardship to family members, waiver application, Hawaii judge, Hearings bond hearings, 10, , 160, 162, 167 removal proceedings. See Removal proceedings video, 138, 139 Homeland Security, Department of (DHS) adjustment of status, 351n27 admissions, making to officers of, deferred action, 9 deportation unit, 9 mandatory detention, 151 Notice to Appear, 17 Offices of Counsel, addresses of, order of supervision, 9 overview, parole, 7, 8 waiver, 351n27 Honduras temporary protected status (TPS), 7 Hostage taking crime of violence, 243 Humanitarian efforts deferred action, 8 9 parole, 7 Hurricane Mitch temporary protected status (TPS), 7 I I-94 card date on, 11 defined, 10 initial client meeting, 1 I-130 form adjustment of status, 504 I-140 form adjustment of status, 504 I-191 form waiver application, waiver under section 212(c), I-192 form section 212(d)(3)(A) waiver, I-212 form permission to reapply for admission after deportation or removal, waiver application, I-246 form stay of deportation, I-485 form adjustment of status, 345, 505 waiver application, I-485A form adjustment of status, 504 I-601 form waiver application, I-602 form waiver application, I-797 form deferred action, 9 I-854 form S status, , I-918 form U status, I-929 petition U status, ICE. See Immigration and Customs Enforcement Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) aggravated felonies, 217, applicants for admission, 127 convictions, 74, 75 domestic violence and protection orders covered by, 268 Fleuti doctrine eliminated by, 123 key legislation, 34 LPRs, special waiver rules for, 353 mandatory detention, concept introduced by, Notice to Appear, 18 reinstatement after removal, 135, 137 removability, concept introduced by, 121 section 212(c), 423 section 303(b), text of, section 309, text of, American Immigration Lawyers Association 569

16 Illegal status IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. waiver applicability to LPRs, Illegal status generally, 9 10 Illinois immigration courts and judges, Immigration Act of 1990 (IMMACT90) good moral character requirement, 308 9, 405 key legislation, 34 naturalization, 414 Immigration and Customs Enforcement (ICE) application for waiver, 497 deferred action, 8 9 detention by, 139 institutional removal cases, 15, 139 local police, mandatory detention, 149 Motor Vehicle Departments and SSA enforcement, 143 Offices of Chief Counsel, order of supervision, 9 parole, 7 role of, state or federal detention, individuals in, 138 structure of (chart), 55 Immigration and Nationality Act of 1952 (INA) aggravated felonies, 217 classification of crimes, 187 convictions, 73 75, 77 deportability, 20 derivative citizenship, 2 evidence at removal proceedings, good moral character, 127 inadmissibility, 121, 128 juvenile offenders and crimes of moral turpitude, 98 law of nationality and naturalization, 2 local police, 142 mandatory detention, 150 nonimmigrant visa holders, 3 refugees, 5 reinstatement after removal, 135, 137 status under, 2 Visa Waiver Program (VWP), 4 Immigration court. See also Executive Office for Immigration Review (EOIR); specific types of proceedings adjustment of status, 505 cancellation of removal, 511 contact information, forms of relief, 497 list of courts and judges, pretrial statements to, , section 212(c) waiver, waiver applications, 497, 507, witness list, Immigration status generally, 1 2 American citizen, 2 3 I-94 card, 10 illegal status, 9 10 lawful permanent resident, 3 nonimmigrant visa holder, 3 5 present without inspection or admission or overstay, 9 10 protective categories, 5 9 Imprisonment. See Sentence INA. See Immigration and Nationality Act of 1952 Inadmissibility adjustment of status, applicants for admission, 122 burden of proof, 20 change of status, 126 controlled substance offenses, deportability distinguished, entry without inspection, 127 export violations, failure to register, good moral character, 127 ground of, adjustment of status, LPRs, naturalization, 127 overview, pardons, parolees, 126 petty offense exception, 444 scope of, , section 212(a)(2)(A), application of, section 212(c) waiver and, 394, temporary protected status, American Immigration Lawyers Association

17 INDEX Lawful permanent residents (LPRs) visa applicants at American embassies, 126 Infopass appointments on case status, 499 INS, legacy reorganization, 11 INS Operations Instruction (OI) 242.1(a)(22) deferred action, 8 Inspection, evasion of generally, 10 Institutional Removal Program (IRP) generally, 15 prisoner removal, 139 Instrument, U.S., falsely making aggravated felony, 218 Insurance fraud plea, 460 Intake sheets tool in criminal-alien law practice, 33, Intensive Supervision Appearance Program (ISAP) alternative to detention, Intensive supervision program alternative to detention, , 172, , Intent. See also specific offenses 193, recklessness. See Recklessness violence, crimes of, Interpreters need for, Intimidation 213 Investors nonimmigrant visa holders, 3, 4, 417 Involuntary manslaughter 211 not crime of violence, 242 IRP (Institutional Removal Program) generally, 15 ISAP (Intensive Supervision Appearance Program) alternative to detention, J Jewish refugees from former Soviet Union unremovable status of, 173 Joyriding intent, 205 plea, 445 theft offense, 248 Judicial review. See Federal judicial review Jurisdiction adjustment of status, custody issues, federal judicial review, 23, 24, nonimmigrant visa waiver, U status, 487 Justice Department (DOJ) appeals, 16 overview, 11 Juvenile delinquency adverse immigration consequences, avoiding, convictions, effect of, Juvenile shelter care facilities generally, 44 K Kickbacks on government contracts 207 Kidnapping aggravated felony, 217 L Larceny 204 Law enforcement officer, assault or battery on 212 not crime of violence, 241 Lawful permanent residents (LPRs) adjustment of status, , 346. See also Adjustment of status citizenship by derivation, 2 continuous residence distinguished, criminal convictions, effect of, 3 deferred action, 9 defined, 3 inadmissibility, refugee or asylum status, 5 American Immigration Lawyers Association 571

18 Legal authority IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. seeking admission, status of, 2, 3 U status, waiver under section 209(c), waiver under section 212(h) aggravated felony convictions, non-aggravated felony convictions, Legal authority sources of, 34 Legal Net section 212(d)(3)(B) waiver denials, contacting, 512 Legend drugs offenses involving, 256, 460 Legislation recent key pieces of, 34 Letters confirmation-ofappointment, 33, LEXIS tool in criminal-alien law practice, 32 33, 495 Locating clients with criminal convictions biometrics and background checks, Department of Motor Vehicles or Social Security Administration, immigration application, filing of, local police, methods for, probation or parole officers as source for, re-entry after trip abroad, 141 serving time in state or federal detention, Louisiana detention center, 43 immigration courts and judges, LPRs. See Lawful permanent residents M Mail fraud 208 Mail service Notice to Appear, 18 Mandatory detention generally, 133 aggravated felony conviction and, 308, 450 alien smuggling, 330 alternatives to, arriving aliens, 462 bond hearings, charge of inadmissibility for crime of moral turpitude and, constitutionality of, 152, 162 controlled substance offenses, cooperating witnesses, release of, detention for arrest not charged on NTA, domestic violence, 327 export violations, 338 failure to register, falsification of documents, firearms offenses, 318 hearings on bonds, 160, 162 invocation of custody rule, legal challenges to, money laundering, , non-mandatory detention cases, overview, reasons to hold person without bond, release from custody, releases on or before October 8, 1998, 167 section 303(b) of IIRAIRA, text of, section 309 of IIRAIRA, text of, Transition Period Custody Rules (TPCR), 150, 167 invocation of, by Attorney General, visa fraud, Manslaughter 211 not crime of violence, 242 Marijuana offenses. See Controlled substance offenses Maryland judges, American Immigration Lawyers Association

19 INDEX 35 Massachusetts judges, Master calendar hearing defined, 19 Medicaid/Medicare fraud plea, 460 Memoranda of law motion for postconviction relief, , polygraph examinations, USCIS or American Embassy, waiver applications, , , Mexico tourists and temporary workers without visas from, 4 Michigan judges, Military service naturalization and, 2, 3, Minimal (or least culpable) conduct approach non-elemental facts, , Minnesota judges, Minors. See also Child abuse delinquency of, contributing to, plea, 455 sexual abuse of, , 217, 219, 254, 455 Misdemeanors aggravated felonies, treated as, drug trafficking crimes, foreign convictions, not crime of violence, 242 sexual abuse of minor, 254 temporary protected status, 7 violence, crimes of, 253 Misidentification defense of, 422 Misprision of felony plea, , 454 Misrepresentation as defense to criminal charge of re-entry after removal, 422 Missouri judges, 49 Modified categorical approach classification of crimes, , 194, 195, 198, 199, 200, 204, 209, 214, Money laundering aggravated felony, 217, 250, 262, 323, 324 amount of funds involved, 250, 451 asylum and withholding of removal, Moral turpitude. See also specific offenses consequences of, , 341 Convention Against Torture (CAT), Deportability /removability, inadmissibility, adjustment of status, and visa eligibility, , mandatory detention, , 321, 323 naturalization, 324 plea, 451, reason to believe, 263 state offenses, 321 voluntary departure, Moral turpitude. See also specific offenses generally, adjustment of status and inadmissibility, admission of essential elements, aggravated felonies, 348 asylum and withholding of removal, avoiding conviction for crime involving, burden of proof, classification of crimes, 188, 189, consequences of, , 341, Convention Against Torture (CAT), American Immigration Lawyers Association 573

20 Motion to reopen IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. crimes involving, defined, , deportability /removability, multiple criminal convictions, domestic violence offenses, 268 elements of criminal statute as controlling, 201 evidence, intent, 193, juvenile offenders, 98 mandatory detention, 302 3, multiple counts, avoiding, naturalization, 306 7, 445 negligence vs. recklessness, new step-by-step classification methodology, , 200, 203, 204, 214 non-elemental facts, petty offense exception, 301, , 447 plea, realistic probability test, 188 recklessness, 192, 202 3, 210, 211, 212, 237, 445 specific offenses as crimes involving, , See also specific offenses violence, crimes of, , 447. See also Violence, crimes of visa eligibility, inadmissibility, voluntary departure, Motion to reopen grounds, 18 postconviction relief on merits (vacaturs), 89, removal proceedings, 89 Motion to terminate removal proceedings, , , 414 Motor Vehicles, Department of criminal convictions uncovered by, Multiple counts plea, , 462 Murder aggravated felony, 217 N N-400 form naturalization, 411 Nationality-based legalization program. See specific groups National security export violations, , 340 as grounds of inadmissibility, 421 National Security Act sabotage and treason under, 217 Naturalization after section 212(c) waiver, 402 aggravated felonies, 311, 411, 414, 450 alien smuggling charges, 331, 417 controlled substance offenses, as defense to deportation, termination of removal proceedings, domestic violence offenses, 329 eligibility for relief, 459 export violations, 340 failure to register, falsification of documents, firearms offenses, 319 good moral character, 127, 129, 412 memorandum in support of eligibility for, money laundering, , 445 Notice to Appear, 17 removal proceedings, 307, 311 veterans and soldiers, visa fraud, Nebraska judges, Negligence vs. recklessness crimes of violence, , 216 Nevada judges, New Jersey detention center, American Immigration Lawyers Association

21 INDEX Operation Tarmac immigration courts and judges, New York (state) detention centers, 43 immigration courts and judges, Offices of Chief Counsel, 35 36, 38 REPAT program, 138 New York City immigration law enforcement, 142n62 Nicaragua temporary protected status (TPS), 7 Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) adjustment of status, reinstatement of removal, , 377 special rule cancellation of removal, Ninth Circuit first offender/youthful offender provisions, Non-elemental facts. See Classification of crimes Nonimmigrant visa holders adjustment of status, See also Adjustment of status change of status, 126 criminal convictions, effect of, 4 defined, 3 5 status of, 2, 3 5 tourists and temporary workers from Caribbean, Canada, and Mexico, 4 Visa Waiver Program (VWP), 4 5 Nonimmigrant visa waiver (section 212(d)(3)) discretionary waiver, factors to consider, jurisdiction, permission to re-enter after deportation, Form I-212 not required, port of entry application, relief under, security or terrorism, as grounds of inadmissibility, 421 Non-mandatory detention cases overview, Nonreviewability of consular action generally, 25 North Carolina judges, 50 Notice of Appeal Board of Immigration Appeals (BIA), Notice of Intent deportability, 131 Notice to Appear (NTA) arrest upon termination of sentence, 13 deferred inspections, 141 defined, 10 removal proceedings, 17 18, 59 61, 307 sample, state or federal detention, individuals in, 138 unauthorized individual, issuance by, 18 American Immigration Lawyers Association 575 O Obstruction of justice aggravated felony, 218, plea, Office of Chief Counsel burden of proof, 20 overview, 16 Office of Detention and Removal (DRO, ICE) alternatives to detention, 175 custody determinations, 160, 167 deferred action, 8 overview, 12 stay of deportation, voluntary removal, 405, 406 withholding of removal, 6 Office of Principal Legal Advisor (ICE) overview, 12 Offices of Chief Counsel contact information, Ohio judges, Operating vehicle under influence. See DUI (driving under influence) cases Operation Tarmac DHS investigation of undocumented workers at airports, 272

22 Oral argument Oral argument Board of Immigration Appeals (BIA), 22 Order of supervision defined, 9 Orders, administrative, challenges to as defense to criminal charge of re-entry after removal, Oregon judge, Overstay generally, 10 P PACER (Public Access to Court Electronic Records) tool in criminal-alien law practice, Pardons conviction, foreign, 84, 85 Parole arriving aliens, 160 criminal conviction, effect on, 8 definition of, 7 8 document, 8 Parolees inadmissibility, 126 locating clients with criminal convictions via, Parole officers locating clients with criminal convictions via, IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. Passport fraud. See Visa/passport fraud Pennsylvania immigration courts and judges, 50 Offices of Chief Counsel, 39 Peonage aggravated felony, 217 Perjury aggravated felony, 218, 250 subornation of, 218, 250 Permanent residents. See Lawful permanent residents Petitions for habeas corpus. See Habeas corpus petitions Petitions for review to court of appeals after BIA appeal, 23 24, 25, expedited removal of aggravated felons, removal proceedings, 26 Petty offense exception adverse immigration consequences, avoiding, , Photographs. See Biometrics and background checks Pleas adverse immigration consequences, avoiding, aggravated felonies, to avoid, agreements to avoid, 461 bad deal pleas, domestic violence offenses, , 460 eligibility for relief, creating, moral turpitude, to avoid, Polygraph examinations memorandum of law on, tool in criminal-alien law practice, 32 Pornography, child. See Child pornography Port of entry waiver application, Possession of burglary tools plea, Possession of stolen property aggravated felony, 217 attempted, Postconviction relief on merits (vacaturs), 85 94, modification of sentence, 95 motion to vacate, 107 8, memorandum of law in support of, , order vacating plea, plea, 451 Pretrial detention arrest from, 13 Pretrial diversion programs avoiding conviction through, Pretrial intervention effect of, Pretrial statements to immigration court waiver application, sample, American Immigration Lawyers Association