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1 Immigration Consequences of Criminal Convictions Kansas Federal Criminal Defense Spring CLE Seminar April 22, 2016 Presented by Hena Mansori, NIJC

2 NIJC s Defenders Initiative provides training and free legal consultations regarding the immigration consequences of crimes.

3 Padilla v. Kentucky, 559 US 356 (2010)

4 No Does his crime make him deportable? Does my client s conviction categorically bar him from getting relief? Yes? Client Removed

5 No Does his crime make him deportable? Does my client s conviction categorically bar him from getting relief? Yes? Client Removed

6 No Does his crime make him deportable? Does my client s conviction categorically bar him from getting relief? Yes? Client Removed Crimes still affect discretionary analysis

7 Criminal History Even decades-old can make client removable Multiple convictions may trigger certain negative immigration consequences All criminal history is relevant Even if no jail Even if a misdemeanor

8 What can we do? Alternate charges Alternate sentences Construction of plea/diversion agreements

9 Why is this important? No right to court-appointed counsel in removal proceedings Many non-citizens appear pro se in removal proceedings. There is little or no time for a non-citizen to seek post-conviction relief once in removal proceedings.

10 KEY FACTORS TO CONSIDER IN NON-CITIZEN CASES Current immigration status Immigration history (date of entry, lawful or unlawful entry, prior deportation) Criminal history, including arrests

11 Immigration Status Lawful Permanent Residents LPRs Indefinite legal status Persons Lawfully Present but NOT LPRs Asylees Refugees Visitors Foreign Students Work Visas Temporary Protected Status Undocumented Entered without inspection Overstayed visa DACA recipient

12 Pertinent immigration history Without inspection? On a nonimmigrant visa? As an LPR or refugee? When and how did your client arrive in the United States? Any prior deportations or encounters with immigration or an immigration judge? What is your client s criminal history? Everything counts! Even old convictions, misdemeanors, offenses without jail time. All of your client s prior criminal history can affect the analysis of how a pending offense will impact your client.

13 What is a Conviction? U.S.C. 8 USC 1101(a)(48)(A) Judge/Jury finds guilt Judge ordered punishment, penalty, or restraint on liberty AND Guilty Plea Nolo plea Admits to sufficient facts to warrant finding of guilt

14 Avoiding a conviction for immigration purposes Avoid any unnecessary admission of guilt. Diversion programs such as drug school will likely avoid convictions for immigration purposes, if no guilty plea is required. See U.S. Attorney s Manual, Title 9, Criminal Resource Manual 712(F) ( The offender must acknowledge responsibility for his or her behavior, but is not asked to admit guilt. )

15 Sentencing Considerations Look to period of confinement ordered by the court regardless of suspension, imposition, or execution of sentence. For many types of crimes, the length of sentence matters.

16 Major Consequences of Criminal Convictions 1. Removal (deportation) from the United States 2. Ineligible for an immigration bond, resulting in mandatory custody during removal proceedings 3. Ineligible for immigration waivers or relief 4. Ineligible for citizenship

17 Removal from the U.S.

18 Removal: Charged with Inadmissibility 8 USC 1182 Deportability 8 USC 1227

19 Criminal Grounds of Inadmissibility 8 U.S.C. 1182(a)(2) Crime Involving Moral Turpitude (CIMT) Admission or Conviction, UNLESS single misdemeanor offense and not sentenced to imprisonment of more than 180 days Controlled Substance Violations Admission or Conviction 2 or more Crimes with Aggregate Sentence of 5 Years or more, Reason to believe individual is a controlled substance trafficker Prostitution (within 10 years of admission or adjustment of status) and commercialized vice Money laundering

20 Criminal Grounds of Deportability 8 U.S.C. 1227(a)(2) Single Crime Involving Moral Turpitude (CIMT) Committed within 5 years after the day of admission; Punishable by a sentence of a year or longer. Multiple CIMTs Conviction of two or more CIMTs; Not arising out a single scheme; Can occur any time after admission. 20

21 Criminal Grounds of Deportability 8 U.S.C. 1227(a)(2) Aggravated Felonies Controlled Substance Violations Firearms-related offenses Domestic Violence, Protection Order Violations, Stalking, Child Abuse 21

22 Non-Criminal Grounds of Deportability 8 U.S.C. 1227(a)(1), (3) and (4) Alien smuggling False claims to U.S. citizenship Security and related grounds Marriage fraud 22

23 Crimes Involving Moral Turpitude CIMTs No statutory definition. Generally, involves deceit, and/ or theft, intended violence or serious bodily harm. Factors that can make a difference: mens rea, level of physical harm, broadness of the statutory definition.

24 CIMT Not CIMT Robbery Domestic violence (if no bodily injury) Theft Simple Battery Fraud Possession of a Controlled Substance Bribery Possession of a Firearm Aggravated assault Driving Under the Influence (with exceptions) Child abuse Rape Arson

25 Fraud in connection with ID Docs (18 U.S.C. 1028) Subsection (a) punishes various acts relating to identification documents. Most of these will be felony CIMTs. Except.

26 Fraud in connection with ID Docs (18 U.S.C. 1028) 18 USC 1028(a)(6): knowingly possesses an identification document or authentication feature that is or appears to be an identification document or authentication feature of the United States or a sponsoring entity of an event designated as a special event of national significance which is stolen or produced without lawful authority knowing that such document or feature was stolen or produced without such authority; Exclude facts or admissions relating to use or intent to defraud, or if the indictment already outlines them, specifically limit the facts See Matter of Serna, 20 I.&N. Dec. 579 (BIA 1992)

27 CIMT Petty Offense Exception May avoid deportation or qualify for relief if: Single misdemeanor CIMT Sentence 6 months or less (jail)

28 Drug Crimes have Severe Consequences Any state or federal conviction relating to a controlled substance as defined at 21 U.S.C. 802 = removable Exception: single marijuana possession of 30 grams or less. 8 U.S.C. 1227(a)(2)(B). Any state or federal conviction for a controlled substance violation = inadmissible, Including: possession of less than 30 grams of marijuana. 8 U.S.C. 1182(a)(2)(A)(i)(II).

29 Exception Overbroad state statutes See Mellouli v. Holder (2015) (also known as the sock case ) This case came out of KANSAS!

30 Controlled Substance LPRs Non-LPRs Waiver of removal available for possession but not trafficking Multiple possession ok, if not charged as recidivist Manufacture and/or delivery of cannabis may still qualify for a waiver (see agg felony) Disqualified from most forms of relief Even if simple possession Even if involves small amount

31 Aggravated Felony Statutory Definition 8 USC 1101(a)(43) Attempt and Conspiracy to commit enumerated aggravated felonies treated the same. Matter of Richardson, 25 I. & N. Dec. 226 (BIA 2010)

32 Categories of Aggravated Felonies Charge-Based Sentence-Based Monetary Amount-Based

33 Charge-Based Agg Felony Deportable if the crime meets the definition regardless of sentence. Note: Misdemeanor offenses can constitute an agg felony without being a felony under state law! e.g. Sexual abuse of a minor.

34 Charge-Based Murder Rape Sexual Abuse of a Minor Many Firearms and Explosive Materials Offenses Child Pornography (as described in 18 U.S.C. 2251, 2251A, or 2252) Offenses described under 18 USC 1962 (RICO), 1804, or 1955 (gambling) Prostitution Business, Peonage, Slavery, Involuntary Servitude and the Trafficking in Persons Non-Citizen Smuggling (as described in 8 U.S.C (a)(1)(A) or (2))

35 Avoiding Drug Trafficking Aggravated Felony Simple possession drug offenses generally not aggravated felonies. Carachuri-Rosendo v. Holder, 560 US 563 (2010) Buying, selling, manufacturing or delivery will be an aggravated felony UNLESS offense could be committed by transferring a small amount of marijuana to another for no remuneration. Because could qualify for federal misdemeanor treatment. Moncrieffe v. Holder, 560 U.S. (2013).

36 Avoiding Drug Trafficking Aggravated Felony Plead to misprision of a felony under 18 U.S.C. 4. But remember that your client may still be deportable or inadmissible on other grounds. Whether misprision is a CIMT is an open question.

37 Sentence-Based Aggravated Felonies Offense becomes an aggravated felony when the sentence is one year or more imprisonment.

38 Examples Requiring at Least One Year Theft Forgery Burglary Obstruction of Justice Receipt of stolen property Perjury Bribery Crime of violence Counterfeiting 1543/1546(a) (passport/document fraud)

39 Avoiding Crime of Violence Aggravated Felony 8 USC 1101(a)(43)(F) Refers to 18 USC 16

40 Avoiding Crime of Violence Aggravated Felony Plead to a sentence of less than 1 year and/or Plead to an offense that involves negligence. See Leocal v. Ashcroft, 543 U.S. 1 (2004) (requiring at least a mental state of recklessness for an offense to be a crime of violence under 18 U.S.C. 16). Under Eighth Circuit law, should also be safe with an offense that can be satisfied by a reckless mens rea. K.S.A (b)(2)(A): recklessly causing great bodily harm to another person or disfigurement of another person May still be a CIMT but better than agg felony.

41 Avoiding Crime of Violence Aggravated Felony, Cont d 18 USC 16(b) on the way out? Similar to the ACCA residual clause struck down in Johnson. Seventh and Ninth Circuits have found 16(b) to be unconstitutionally vague. See Dimaya v. Lynch (803 F.3d 1110) (9th Cir. 2015); U.S. v. Vivas-Ceja (808 F.3d 719) (7th Cir. 2015).

42 Monetary-Based Aggravated Felonies Money Laundering (where funds exceed $10k) Fraud/Deceit (where loss exceeds $10k) Tax Evasion (where revenue loss exceeds $10k)

43 Avoiding Conviction for Fraud-Based Aggravated Felony Loss amount less than $10,000 and/or Plead to offense that does not contain element of fraud or deceit. Is 18 USC 641 possible, with language limited to stealing? CAUTION: Statute need not explicitly include an intent to defraud or deceive. See Mowlana v. Lynch (8th Cir. 2015).

44 Illegal Re-Entry 8 USC 1326

45 NIJC s practice advisory Illegal Reentry Practice Advisory for Federal Defenders (November 2013), available at:

46 Challenging Prior Removal Order Must show: Exhaustion of any administrative remedies; Deprivation of the opportunity for judicial review; and Removal order was fundamentally unfair. See 8 USC 1326(d)

47 What do I need to show? 1. Due Process Violation Any screw up in the removal process? 2. Prejudice Did it hurt your client? Plausible or likely that client could have obtained relief but for due process violation? 3. Exhaustion Did your client get a REAL chance to challenge this at the time?

48 Different Types of Removal Orders IJ IJ Hearing Agent Administrative Removal for Agg Felony Conviction Stipulated Removal Expedited Removal at the Port

49 Different Types of Removal Orders IJ IJ Hearing Agent Administrative Removal for Agg Felony Conviction Stipulated Removal Expedited Removal at the Port

50 Due Process Violations Invalid Waivers of Counsel Invalid Waivers of Appeal Non- Advisal or Misadvisal of Relief Failure to Follow Regulations Not Deportable as Charged Etc. 8 C.F.R (a)(2)

51 Stipulated Removal An agreement between your client and DHS where your client agrees to be removed without a hearing. Immigration Judge is supposed to review the stipulation to make sure it was knowing and voluntary. 8 USC 1229a(d); INA 240(d); U.S. v. Ramos, 623 F.3d 672 (9th Cir. 2010).

52 Administrative Removal 8 U.S.C. 1228(b): Allows for administrative removal, without court proceedings, of noncitizens who are: 1. Not LPRs, AND 2. Have aggravated felony conviction. ASK: Was your client s offense really an aggravated felony? Would he have been eligible for relief? What did the ICE officer tell him?

53 Expedited Removals 8 U.S.C. 1225(b)(1) Non-citizens apprehended at a port of entry, or within 100 miles of the border. Will be removed from the U.S without further hearing. Exception: non-citizen expresses a fear to return. Exception: non-citizen establishes residence in U.S. for prior two years.

54 Reinstatement of Prior Order 8 USC 1231(a)(5)

55

56

57 Is your client a USC? Acquired citizenship: Client was born a USC because his parent or grandparent was a USC at time of client s birth. Derivative citizenship: Client became a USC while under 18 when parent became a USC. Citizenship laws have changed over the years. Must look at law in place when your client was born/when your client was under 18. Citizenship charts are your friend! See, e.g.

58 Acquired citizenship 8 U.S.C Ask: When was your client born? Which law applies? Parent or grandparent born in U.S.? Did USC parent live in U.S. 5 years prior to birth, 2 after age 14? If father was USC, born in or out of wedlock?

59 8 U.S.C Derivative citizenship Law became more generous with passage of Child Citizenship Act on 2/27/01. Citizenship derived as long as three conditions are met before age 18: LPR One parent naturalizes Child is residing in physical and legal custody of parent Under the old law: Both parents had to naturalize before child turned 18, UNLESS parents were legally separated and child was in legal custody of naturalizing parent

60 Other Forms of Relief

61 Cancellation of Removal LPRs Non-LPRs 7 years of continuous physical presence (after admission to US) certain crimes cut off 7 years! 5 years of LPR status No Agg Felony Conviction In the US at least 10 years No disqualifying crimes and good moral character Show exceptional hardship to USC/LPR spouse, parent, child

62 Adjustment to LPR Status Requirements Waivable? Requires family or employment petition Can waive CIMTs and Agg felony! Visa number is currently available (e.g., petition by USC spouse) Entered the US lawfully (tourist visa, etc.) or protected under INA 245(i) Won t waive drug offenses, except for simple possession of marijuana under 30 grams! Won t waive false claims to U.S. citizenship! No disqualifying priors BUT can get waiver if can show extreme hardship to family

63 Protection-Based Relief Asylum Withholding of Removal Convention Against Torture (CAT) Violence Against Women Act (VAWA) U and T Visa (victims of crime and human trafficking) S visa (informants)

64 Does Client Fear Returning to Country of Origin? Even if there is no way to challenge a removal order client may be eligible to seek protection in US if fears return. Even people with administrative removal orders can request a reasonable fear interview with an asylum officer. 8 C.F.R

65 Asylum Requirements Burden of Proof Past persecution or a well-founded fear of future Reasonable Possibility On account of race, religion, nationality, membership in a particular social group, or political opinion By the government or a group the government is unable or unwilling to control No Aggravated Felony or Particularly Serious Crime

66 Withholding of Removal Requirements Burden of Proof Similar to asylum, with less benefits For those who do not qualify for asylum due to their criminal or immigration history. But must demonstrate that it is more likely than not that they will be persecuted Higher standard than for asylum Will not be eligible if aggravated felony/felonies with sentence >5 yrs or if particularly serious crime.

67 Convention Against Torture ( CAT ) 8 C.F.R Requirements A likelihood of torture By or with the acquiescence of a government actor No criminal bars

68 S, T, and U Visas S Visa: for individuals who have assisted a law enforcement agency as a witness or informant. Often offered to cooperating defendants. Difficult to obtain unless the AUSA/DEA/etc. is truly on board. T Visa: For victims of human trafficking Consider: is your client charged with drug trafficking actually a victim? U Visa: For victims of violent crime in the U.S. who cooperate in investigation of crime Law enforcement agency MUST sign certification

69 DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) Those who qualify: Born on or after June 16, 1981 Came to the United States before reaching 16th birthday Have continuously resided in the U.S. since June 15, 2007 up to the present time Were physically present in the United States on June 15, 2012, and at the time of making DACA application Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012 Are currently in school, have graduated from high school, or obtained a general education certificate (GED) Have NOT been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety Significant misdemeanors include DUIs, DV, and firearms offenses.

70 Current DHS priorities Constitute threat to national security, border security, or public safety Convicted of any felony or aggravated felony Convicted of 3 or more misdemeanors Convicted of 1 significant misdemeanor (DUI, burglary, domestic battery, firearms offense, and all gang-related criminal offenses) or any misdemeanor for which they serve 90+ days Entered the United States after January 1, 2014 Have a deportation order that was entered after January 1, 2014

71 Prosecutorial Discretion An individual may request that DHS exercise prosecutorial discretion in their case. BUT if they fall into a priority, obtaining PD will be difficult!

72 Additional Resources/Materials Human Rights Watch, Turning Migrants Into Criminals, available at National Immigrant Justice Center, Practice Advisory: Protection-Based Relief from Removal, available at

73 Defenders Initiative Call: Webpage: fenders-initiative-0

74 GLOSSARY OF IMMIGRATION TERMS * * * A A Number: Adjustment of Status: An eight digit number (or nine digit, if the first number is a zero) beginning with the letter "A" that the DHS gives to some noncitizens. A process by which a non-citizen in the United States becomes a lawful permanent resident without having to leave the U.S. Administrative Order of Removal: Admission: Admissible: Aggravated Felony: Alien: Alien Registration Receipt Card: Aliens Previously Removed: A removal order pursuant to 8 U.S.C Non-lawful permanent residents with aggravated felony convictions can be removed pursuant to these orders, without any right to see an immigration judge. The decision of the DHS to allow a non-citizen at the United States border or international airport or seaport to enter the United States. A non-citizen who may enter the U.S. because he/she is not excludable for any reason or has a waiver of excludability. Defined at INA 101(a)(43). An aggravated felony includes many crimes that can be categorized into charged-based and sentence-based aggravated felonies. A person who is not a citizen or national of the United States. The technical name for a "green card," which identifies an immigrant as having permanent resident status. Ground of inadmissibility, for persons previously removed for anywhere from five years to twenty years depending on prior circumstances. 01/10/2014

75 Aliens Unlawfully Present: Asylee: Asylum: Ground of inadmissibility for three years for one unlawfully present in the U.S. for more than 180 days but less than one year commencing April 1, 1997 or for ten years if unlawfully present for one year or more. A person who is granted asylum in the United States. A legal status granted to a person who has suffered harm or who fears harm because of his/her race, religion, nationality, political opinion or membership in a particular social group. B Board of Immigration Appeals (BIA): Bond: The highest administrative body for immigration appeals and for interpretation of the immigration law. Immigration Court decisions are appealed to the BIA. Published BIA decisions are often subject to Chevron deference by the circuit courts and Supreme Court. A person in immigration custody may be eligible for immigration bond. However, most non-citizens with certain crimes are subject to mandatory detention under 8 USC 1226(c). C Cancellation of Removal: Discretionary remedy for an LPR who has been a permanent resident for at least five years and has resided continuously in the United States for at least seven years after having been admitted in any status and has not been convicted of an aggravated felony, or anyone physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application, who has been a person of good moral character during such period, has not been convicted of certain offenses and who establishes that removal would result in extreme hardship to the U.S. citizen or LPR spouse, parent, or child. Citizen (USC): Any person born in the fifty United States, Guam, Puerto Rico, or the U.S. Virgin Islands; or a person who has naturalized to become a U.S. citizen. Some people born abroad are also citizens if their parents were citizens (either acquired or derived citizenship).

76 Convention Against Torture (CAT): International treaty that prevents the United States from returning a person to a country where he/she will be tortured by the government or with the government s acquiescence. Conviction: Formal judgment of guilt entered by a court or, if adjudication of guilt was withheld, if a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contendere and has admitted sufficient facts to warrant a finding of guilt and the judge has ordered some form of punishment, penalty or restraint. Crime of Violence: Criminal Ground of Inadmissibility: Criminal Ground of Deportability: Under 8 USC 1182(a)(2), crime of violence for immigration purposes is an offense that meet the definition of a crime of violence under 8 USC 16. However, the definition of a crime of violence for immigration purposes is constantly evolving due to new litigation. Found at 8 USC 1182(a)(2), reasons that a person with criminal convictions may be inadmissible to the United States. Found at 8 USC 1227(a)(2), reasons that a person with criminal convictions may be removed from the United States. Criminal History: Crime Involving Moral Turpitude (CIMT): Any contact that a person has had with any law enforcement agency, even if contact did not result in a conviction. There is no statutory definition for what constitutes a CIMT. Generally, any crime that involves deceit, and/or theft, intended violence or serous bodily harm. D Department of Homeland Security (DHS): Deportable: The federal department charged, in part, with implementing and enforcing immigration law and policy. Being subject to removal from the U.S. for violating an immigration law, such as entering without inspection,

77 overstaying a temporary visa, or being convicted of certain crimes. Deportation: The removal of a non-citizen from the United States. A deported person cannot ordinarily reenter the United States for five years, ten years, twenty years, or permanently, if deported for certain crimes. A non-citizen cannot be deported without a hearing, unless he/she has been convicted of an aggravated felony and is not an LPR, or has a prior removal order. E Entry: Entry Without Inspection (EWI): Being physically present in the U.S. after inspection by the DHS or after entering without inspection. Entering the United States without being inspected by the DHS, such as a person who crosses across the border between the U.S. and Mexico or Canada without permission. This is a violation of the immigration laws. Executive Office for Immigration Review (EOIR): Expedited Order of Removal: The Immigration Court and the Board of Immigration Appeals, within the Department of Justice which decides immigration cases. Removal order pursuant to 8 U.S.C. 1225(b)(1), for a noncitizen who is apprehended near or at the border and is not eligible to be admitted to the United States. I Immigration and Customs Enforcement (ICE): The agency within the Department of Homeland Security responsible for overseeing detention and release of immigrants and the investigation of immigration-related administrative and criminal violations. Immigration and Nationality Act (INA): The immigration law that Congress originally enacted in 1952 and has modified repeatedly.

78 Immigration and Naturalization Service (INS): Immigration History: Immigration Hold: Immigration Judge: Inspection: Former branch of the United States Department of Justice charged with enforcing the immigration laws. On March 1, 2003, the INS ceased to exist. Responsibility for immigration policy and immigration functions is now shared between the Department of Justice and the Department of Homeland Security. Any contact that a person has had with immigration authorities. A detainer that is placed on a person in criminal custody which will result in the person being transferred to federal immigration custody either when the person attempts to posy criminal bond or when criminal proceedings are completed. Administrative judge who presides over removal proceedings. The DHS process of inspecting a person's travel documents at the U.S. border or international airport or seaport. L Lawful Permanent Resident (LPR): A person who has received a "green card" and whom the DHS has decided may live permanently in the U.S. LPRs eventually may become citizens, but if they do not, they could be deported from the U.S. for certain activities, such as crimes described under INA 237(a)(2). N Naturalization: Non-citizen: The process by which an LPR becomes a United States citizen. A person must ordinarily have been an LPR for five years before applying for naturalization. A person who became an LPR through marriage to a U.S. citizen and is still married to that person in most cases may apply for naturalization after three years as an LPR. Any person who is not a citizen of the U.S., whether legal or undocumented. Referred to in the INA as an "alien."

79 O Order of Supervision: Individuals in immigration detention may be released on an order of supervision if they cannot be removed from the United States within a certain time period. P Parole: Petty Offense Exception: To permit a person to come into the U.S. who may not actually be eligible to enter--often granted for humanitarian reasons, such as to allow a person to seek asylum within the U.S. If a non-citizen is convicted of a single misdemeanor crime involving moral turpitude, with less than 6 months jail time, the non-citizen may avoid removal (deportation) or at least qualify for immigration relief. R Reasonable Fear Interview: Refugee: Reinstatement of Removal: An interview with the Asylum Office that determines whether a non-citizen expresses a reasonable fear of returning to his home country. Non-citizens who are not otherwise eligible to see an immigration judge because they are subject to administrative removal orders or reinstatement of removal and who are afraid to return to their home country can request this interview upon transfer to immigration custody. A person who is granted permission while outside the U.S. to enter the U.S. legally because of harm or feared harm due to his/her race, religion, nationality, political opinion or membership in a particular social group. The process under 8 U.S.C. 1231(a)(5) by which a previously carried out removal order (i.e., the person was physically deported and then returned) is reused against a non-citizen. Non-citizens subject to reinstatement do not have the right to see an immigration judge except in limited circumstances.

80 Relief: Removal Order: Removal Proceedings: Respondent: Term used for a variety of grounds to avoid deportation or exclusion. An order, either by the Immigration Court/Board of Immigration Appeals, or by the DHS, that a non-citizen depart from the United States. All removal orders carry a bar to re-entry. Proceedings to enforce departure of persons seeking admission to the US who are inadmissible or persons who have been admitted who are removable. The term used for the non-citizen in removal proceedings. S Stipulated Order of Removal: A removal entered pursuant to a signed stipulation by a noncitizen that he does not have permission to reside in the United States, waives his right to see an immigration judge, and agrees to deportation. U Undocumented: United States Citizenship and Immigration Services (USCIS): A non-citizen whose presence in the U.S. is not known to the DHS and who is residing here without legal immigration status. Undocumented persons include those who originally entered the U.S. legally for a temporary stay and overstayed, and those who entered without inspection. The agency within the Department of Homeland Security responsible for adjudicating affirmative applications for immigration benefits. V Voluntary Departure: Permission granted to a non-citizen to leave the U.S. voluntarily. The person must have good moral character and must leave the U.S. at his/her own expense, within a specified time. A non-

81 citizen granted voluntary departure can reenter the U.S. legally in the future. W Withholding of Removal: Relief granted to a person who demonstrates that he/she has or will suffer harm because of his/her race, religion, nationality, political opinion or membership in a particular social group by an individual or group that the government is unable or unwilling to control.

82 DISTRICT OF KANSAS IMMIGRATION SEMINAR University of Kansas, Lied Center Lawrence, Kansas April 22, 2016 PLEASE NOTE: This outline serves as a starting point for criminal defense attorneys representing non citizen clients in criminal cases. Please contact NIJC s Defender s Initiative for further advice regarding your client s individual case. QUESTION #1, ALWAYS: what is your client s immigration status? Non citizens fall into different categories: Lawful permanent residents (LPRs): individuals who have indefinite legal status in the United States ( green card holders ) Persons lawfully present who are not LPRs: asylees, refugees, visitors, foreign students, individuals with work visas, temporary protected status, or deferred action for childhood arrivals (DACA) Undocumented individuals: people who entered with a valid temporary status and overstayed or people who entered without inspection WHEN DETERMINING SOMEONE S IMMIGRATION HISTORY AND CURRENT STATUS, ASK: 1. When and how did they arrive in the United States? Without inspection (by crossing the border without detection)? On a valid nonimmigrant visa, such as a tourist or student visa? As a lawful permanent resident? Through the use of false documents, such as a foreign passport with a U.S. visa, an LPR card, or a U.S. passport? 2. If in lawful status, how did they obtain this status (via family, work, 1980 s amnesty program, refugee/asylee status)? Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax:

83 3. Have they ever had an encounter with immigration officials or seen an immigration judge in the past? Within the interior of the U.S. or at the border/within 100 miles of the border? What happened? What is your client s criminal history? Find out your client s COMPLETE criminal history: Some non citizens may face removal based on prior criminal convictions, even convictions that are decades old Multiple convictions may trigger certain negative immigration consequences All criminal history is relevant, regardless of whether the individual received jail time and regardless of whether the crime was a misdemeanor or felony. IS YOUR CLIENT S OFFENSE A CONVICTION FOR IMMIGRATION PURPOSES? Under 8 USC 1101(a)(48)(A), an offense is a conviction under immigration law where: Judge/jury finds the non citizen guilty; or non citizen enters a guilty or nolo contendere plea; or non citizen admits sufficient facts to warrant finding of guilt AND A judge orders some form of punishment, penalty, or restraint on liberty. Is your client already inadmissible or deportable, or will their pending charge make them inadmissible or deportable? REMEMBER, any individual who is present in the United States without lawful status is subject to removal. Individuals without lawful status may be subject to additional criminal grounds of inadmissibility or deportability. Individuals WITH lawful status who are not otherwise removable may become inadmissible or deportable under criminal grounds. Criminal grounds of inadmissibility: Located at 8 U.SC. 1182(a)(2) Includes: Admissions to or Conviction of a Crime Involving Moral Turpitude (CIMT), 8 U.S.C. 1182(a)(2)(A)(i)(I) Petty offense exception: ONE misdemeanor CIMT with a sentence under 180 days Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax:

84 Admissions to or Conviction of Controlled Substance Violations, 8 U.S.C. 1182(a)(2)(A)(i)(II) Conviction of 2 or more Crimes with Aggregate Sentence of 5 Years or more, 8 U.S.C. 1182(a)(2)(B) Reason to believe that individual is or has been an illicit trafficker in any controlled substance, 8 U.S.C. 1182(a)(2)(C) Prostitution (within 10 years of admission or adjustment of status) and commercialized vice, 8 U.S.C. 1182(a)(2)(D) Reason to believe that individual is involved with money laundering, 8 U.S.C. 1182(a)(2)(I) Criminal grounds of deportability: Located at 8 U.S.C. 1227(a)(2) Includes: Single Crime Involving Moral Turpitude (CIMT), 8 U.S.C. 1227(a)(2)(A)(i): Committed within 5 years after the day of admission; Punishable by a sentence of a year or longer. Multiple CIMTs, 8 U.S.C. 1227(a)(2)(A)(ii) Conviction of two or more CIMTs; Not arising out a single scheme; Occuring any time after admission. Aggravated Felonies. 8 U.S.C. 1227(a)(2)(A)(iii), defined by 8 U.S.C. 1101(a)(43) Controlled Substance Offenses, 8 U.S.C. 1227(a)(2)(B)(i) EXCEPTION: single possession of marijuana less than 30 grams. Firearms Offenses, 8 U.S.C. 1227(a)(2)(C) Crimes Involving Domestic Violence, Stalking, Child Abuse, Violation of Orders of Protection, 8 U.S.C (a)(2)(e) Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax:

85 Non criminal grounds of deportability: Located at 8 U.S.C. 1227(a)(1), (3), and (4) Includes: Alien smuggling, 8 U.S.C. 1227(a)(1)(E) Marriage fraud, 8 U.S.C. 1227(a)(1)(G) False claim to U.S. citizenship, 8 U.S.C. 1227(a)(3)(D) Security and related grounds, 8 U.S.C. 1227(a)(4) SO WHAT EXACTLY IS A CRIME INVOLVING MORAL TURPITUDE? According to the BIA, it is a vile, depraved or immoral act, a violation of the basic duties owed to fellow man, a reprehensible act. Generally includes offenses that involve intent to cause bodily harm, or to deceive or defraud, or to permanently deprive an owner of property (i.e., theft). Reckless acts can sometimes be CIMTs, particularly where great bodily harm results. The following offenses are almost always CIMTs: Robbery Theft Fraud Bribery Aggravated assault Child abuse Rape Arson Crimes that are usually not CIMTs include: Domestic violence (if no bodily injury) Simple Battery Possession of a Controlled Substance Possession of a Firearm Driving Under the Influence The categorical approach may or may not apply in determining whether your client s offense is a CIMT, depending on what circuit law controls. Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax:

86 CONTROLLED SUBSTANCE OFFENSES: All drug crimes have severe consequences for non citizens! Any state or federal conviction relating to a controlled substance as defined at 21 U.S.C. 802 will render a non citizen DEPORTABLE, with the exception of a single marijuana possession of 30 grams or less. 8 U.S.C. 1227(a)(2)(B). Any state or federal conviction for a controlled substance violation will render a person INADMISSIBLE, including possession of less than 30 grams of marijuana. 8 U.S.C. 1182(a)(2)(A)(i)(II). Consequences for LPRs v. non LPRs: LPRs can seek a waiver of removal if they are convicted of possessory drug offense as long as it is not a drug trafficking offense. NOTE: Multiple possessory drug offenses will not disqualify an LPR from a waiver so long as the LPR is not charged as a recidivist. In addition, an LPR convicted of manufacture and/or delivery of cannabis may still qualify for a waiver (see aggravated felony section below). Non LPRs with drug offenses will be disqualified from most forms of relief, even if the offense is simple possession and involves a small amount only! AGGRAVATED FELONIES: The term aggravated felony is defined by 8 U.S.C. 1101(a)(43). This section of law contains a laundry list of offenses that can constitute aggravated felonies. Attempt and Conspiracy to commit any of the enumerated aggravated felonies are treated the same as if the person was convicted of the aggravated felony. 8 U.S.C. 1101(a)(43)(U); See Matter of Richardson, 25 I. & N. Dec. 226 (BIA 2010) There are three primary ways to categorize aggravated felonies: Charge Based Aggravated Felonies: These are convictions that make a non citizen deportable if the crime meets the definition regardless of sentence. Note: Misdemeanor offenses, such as sexual abuse of a minor, can constitute an aggravated felony without being a felony under state law. Sentence Based Aggravated Felonies: Offenses that make a non citizen deportable if the crime meets a certain definition, and a court orders at least one year imprisonment Monetary Based Aggravated Felonies: Offenses that make a non citizen if the crime involves certain elements, and the crime involves funds exceeding $10k or a loss exceeding $10k Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax:

87 Examples of charge based or categorical aggravated felonies are: Murder, 8 U.S.C. 1101(a)(43)(A) Rape, 8 U.S.C. 1101(a)(43)(A) Sexual Abuse of a Minor, 8 U.S.C. 1101(a)(43)(A) Drug Trafficking, 8 U.S.C. 1101(a)(43)(B) Defined in reference to the federal Controlled Substances Act. Simple possession drug offenses are not generally drug trafficking aggravated felonies. See Carachuri Rosendo v. Holder, 560 U.S. 563 (2010) Any drug offense that includes elements of buying, selling, manufacturing or delivery will be a drug trafficking aggravated felony UNLESS that offense could be committed by transferring a small amount of marijuana to another for no remuneration (and thus could qualify for federal misdemeanor treatment). See Moncrieffe v. Holder, 133 S. Ct. 1678, 560 U.S. (2013). PLEA TIP: Plead to misprision of a felony under 18 U.S.C. 4. Under the categorical approach, courts can only look to the elements of the statute and not the actual underlying conduct. See Descamps v. United States, 570 U.S. _ ; 133 S.Ct (2013); U.S. v. Montes Flores, 736 F.3d 357 (4th Cir. 2013). BUT remember that misprision is still likely a crime involving moral turpitude, even if not an aggravated felony. Many Firearms and Explosive Materials Offenses, including Arson, 8 U.S.C. 1101(a)(43)(C), (E) Child Pornography Offenses, 8 USC 1101(a)(43)(I) Offense Relating to Owning, Managing a Prostitution Business, or to Peonage, Slavery, Involuntary Servitude and the Trafficking in Persons, 8 U.S.C. 1101(a)(43)(K) Alien smuggling, except in the case of a first offense where the non citizen has affirmatively shown that he committed the offense to assist his spouse, child, or parent (and no other individual) Non Citizen Smuggling, 8 U.S.C. 1101(a)(43)(N) Illegal Re entry [after deportation on the basis of an aggravated felony], 8 U.S.C. 1101(a)(43)(O) Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax:

88 Offense relating to failure to appear for service of a sentence, if underlying offense is punishable by 5+ years imprisonment, 8 U.S.C. 1101(a)(43)(Q) Offense relating to failure to appear before a court pursuant to a court order to answer or dispose of a felony charge for which a sentence of 2+ years may be imposed, 8 U.S.C. 1101(a)(43)(T) Whether a conviction under 18 USC 3146 qualifies is up for debate. Avoid if possible! Examples of sentence based aggravated felonies are: Crimes of violence, 8 U.S.C. 1101(a)(43)(F) For an offense to constitute a crime of violence under immigration law, it must be a crime of violence as defined by 18 U.S.C. 16. The definition of a crime of violence is constantly evolving as it is a highly litigated area of immigration law. Cannot involve a negligent act. In many circuits, must involve an intentional act. 16(b) may be on the way out we hope. PLEA AGREEMENT TIP: Plead to a sentence of less than one year. Plead to an offense that involves a negligent act rather than intentional act. See Leocal v. Ashcroft, 543 U.S. 1 (2004). If that is not possible, a reckless act may be okay as well, depending on which circuit law controls. NOTE: Even if you are able to obtain a sentence of less than a year, thus avoiding an aggravated felony, your client s conviction may still be considered a CIMT. But more defenses exist for people convicted of CIMTs than of aggravated felonies. Theft, 8 U.S.C. 1101(a)(43)(G) Burglary, 8 U.S.C. 1101(a)(43)(G) Receipt of stolen property, 8 U.S.C. 1101(a)(43)(G) Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax:

89 Commercial Bribery, 8 U.S.C. 1101(a)(43)(R) Counterfeiting, 8 U.S.C. 1101(a)(43)(R) Forgery, 8 U.S.C. 1101(a)(43)(R) Obstruction of Justice, 8 U.S.C. 1101(a)(43)(S) Perjury, 8 U.S.C. 1101(a)(43)(S) Bribery of a witness, 8 U.S.C. 1101(a)(43)(S) Monetary Based Aggravated Felonies Circumstance Specific Approach rather than Categorical Approach: DHS and the Immigration Court can look below the statute to determine monetary amount involved. See Nijhawan v. Holder, 557 U.S. 29 (2009). Money Laundering Where the Amount of Funds Involved Exceeds $10,000, 8 U.S.C. 1101(a)(43)(D), offenses described in 18 U.S.C (relating to laundering of monetary instruments) or 1957 (relating to engaging in monetary transactions in property derived from specific unlawful activity) Fraud or Deceit where the Loss to Victim Exceeds $10,ncrief000, 8 U.S.C. 1101(a)(43)(M)(i). PLEA AGREEMENT TIP: Convince the prosecutor to agree to a loss amount of less than $10,000 OR Plead to an offense that does not contain elements of fraud or deceit. CAUTION: intent to defraud or deceive need not be explicit in the statute. Tax Evasion where Revenue Loss to Government Exceeds $10,000, 8 U.S.C. 1101(a)(43)(M)(ii), offense described in 26 U.S.C o NOTE: Tax evasion offenses NOT described in 26 U.S.C may still be aggravated felonies under 8 U.S.C. 1101(a)(43)(M)(i). See Kawashima v. Holder, 132 S. Ct (2012), 565 U.S. (2012) (finding violations of 7206(1) and (2) to be fraud related aggravated felonies). Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax:

90 CAN YOU AVOID A CONVICTION FOR IMMIGRATION PURPOSES? Avoid any unnecessary admission of guilt. Diversion programs such as drug school will likely avoid convictions for immigration purposes, as long as no admission or finding of guilt is required. See U.S. Attorney s Manual, Title 9, Criminal Resource Manual 712(F) ( The offender must acknowledge responsibility for his or her behavior, but is not asked to admit guilt. ) SENTENCING TIPS: Often, avoiding a term of imprisonment of one year or more will determine whether your client remains eligible for immigration relief. However, this is not ALWAYS the case. For example, many offenses are aggravated felonies regardless of their sentence, and some offenses (those involving fraud or deceit, and tax evasion) become aggravated felonies where the amount of loss is over $10,000. In other contexts, simply having a certain offense, even if not an aggravated felony and regardless of the sentence imposed, will render your client ineligible for relief. The sentence ORDERED matters: To determine whether an offense is an aggravated felony based on its sentence, or to determine whether a misdemeanor CIMT will fall into the petty offense exception, the immigration court will look to the sentence imposed and will not consider whether any portion of the sentence was suspended or probated. Is your client eligible for immigration relief that will be affected by a conviction of their pending charge? Questions to ask: 1. How long has your client resided in the United States? 2. What family members do they have here? In particular, does your client have an LPR or USC spouse, child, or parent? 3. Does your client fear returning to his home country? 4. Has your client been the victim of a violent crime regarding which they cooperated with law enforcement? 5. Is there any possibility that your client derived or acquired U.S. citizenship through a family member? PRIMARY FORMS OF RELIEF: U.S. citizenship: Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax:

91 Citizenship laws have changed several times, so always need to look at the particular law in place when your client was born. Always refer to charts. The Immigration Legal Resource Center has helpful ones at quick reference charts Acquired citizenship under 8 U.S.C. 1401: client born a U.S. citizen because parent was a U.S. citizen at time of client s birth If only one parent was a USC, need to show that parent resided in the U.S. for five years prior to client s birth, at least two years after age 14 Under old law: If father is the USC, child must have been born in wedlock or father must have legitimated child before child turned 21 Under new law: must have established blood relationship, father must have provided written statement that would provide for child until age 18, and while child is under 18 child must be legitimated or father must acknowledge paternity in writing under oath, or paternity must be established by court Derivative citizenship under 1431: LPR child becomes a citizen because parent becomes citizen while child is under 18 Child Citizenship Act of 2000, at 8 U.S.C. 1431: effective 2/27/01 and thus applies to individuals who were under 18 as of 2/27/01. Three conditions must be met before child turns 18: Child must be LPR Parent must become USC Child must be in legal and physical custody of parent For individuals who turned 18 before 2/27/01 (old law, not part of current INA), must show: Both parents became USCs before child turned 18 If only one parent became a USC, unless other parent was born a USC or is deceased, parents must be legally separated and parent who became a USC must have sole physical and legal custody of child. Cancellation of removal for lawful permanent residents: Discretionary waiver for LPRs who are removable due to crimes. See 8 U.S.C. 1229b(a). Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax:

92 To be eligible, must demonstrate: Five years of LPR status At least 7 years presence in the U.S. following admission in any status, prior to commission of offense that makes them inadmissible No aggravated felony convictions! Cancellation of removal for non permanent residents: Discretionary waiver based on a showing of exceptional hardship to qualifying relatives (USC or LPR spouse, parent, or child) in the U.S. See 8 U.S.C. 1229b(b). Must have resided in the United States for at least 10 years prior to placement in removal proceedings. Prior contact with DHS may break the 10 years. EVERY offense that makes an individual inadmissible or deportable on criminal grounds will render them ineligible for non LPR cancellation of removal! Applicant must also demonstrate that he has not served more than 180 days jail time for ANY offense. Time served for past offenses is added together to calculate this figure. Adjustment of status through family or employment: A non citizen may be able to obtain lawful permanent resident status through a family or employment petition for which a visa number is currently available (e.g., petition by USC spouse). See 8 U.S.C In order to seek adjustment of status, except in rare circumstances, the applicant must have entered the United States lawfully, such as on a tourist or student visa. Individuals who do not meet this requirement may be eligible to apply for LPR status from outside the United States, as long as they meet the other requirements/are not subject to any bars. Individuals who are inadmissible may be able to seek a waiver of their grounds of inadmissibility if they can demonstrate extreme hardship a USC or LPR spouse, parent, or child. Drug offenses, except for simple possession of marijuana under 30 grams, can never be waived! False claims to U.S. citizenship cannot be waived! Adjustment of status for refugees and asylees: Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center 208 S. LaSalle Street, Suite 1300, Chicago, Illinois ph: fax: