IMPACT OF CRIMINAL CONVICTIONS

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1 IMPACT OF CRIMINAL CONVICTIONS ERICH C. STRAUB SARAH ROSE WEINMAN American Bar Association - Immigration Pro Bono Training August 1, 2012 Chicago, IL

2 Ineffective Assistance Padilla vs. Kentucky - 6 th Amendment Duty Succinct, clear, and explicit - must advise the client of the risk of deportation Not succinct and straightforward must advise that the charges may carry the risk of adverse immigration consequences

3 Ethical Issues Best Practices: Determine client s immigration status Early in representation Use questionnaire Do not make assumptions Advise client to retain immigration counsel Draft written agreement re scope of representation Put immigration advice in writing

4 Basic Terms Inadmissible you were never lawfully admitted by an immigration official and now are subject to the grounds of inadmissibility (8 USC 1182) Deportable - you came in lawfully at some point and now are subject to the grounds of deportability (8 USC 1227) Removal - an immigration judge or immigration official finds you deportable or inadmissible and orders you removed

5 Criminal-Immigration Analysis 5-Step Process Immigration History Criminal Record Inadmissibility Deportability Options for Avoiding Removal (alternate pleas and/or defenses to removal)

6 Key Concept No. 1 Two Ways to Remove a Client Deportable Inadmissible Two Analyses for a Client Is the client deportable? Is the client inadmissible?

7 Deportable Offenses 8 U.S.C 1227(a)(2) Crime involving moral turpitude Felony within 5 years of admission Two or more not in same scheme Aggravated felony Controlled substance offense Firearms offense Domestic violence or violation of a protection order

8 Inadmissible Offenses 8 U.S.C. 1182(a)(2) Crime involving moral turpitude Unless misdemeanor and imprisonment is no more than 6 months Unless committed when under 18 YOA and offense/release from custody not within 5 years of application for visa/admission Controlled substance offense Two or more convictions with aggregate sentence of five years or more Drug trafficker reason to believe Prostitution Money laundering

9 U.S. Citizenship Birth: in U.S. or U.S. Territory Acquired: born abroad to a parent who is a U.S. citizen from birth Derived: Parent naturalizes Client was unmarried and under 18 Naturalization Simple rule: possible citizen if parent or grandparent was a U.S. Citizen or lived in the U.S.

10 Immigration Status Lawful Permanent Resident (LPR) Undocumented Refugee or Asylee Temporary Protected Status (TPS) Non-immigrant visa holder

11 Key Concept No. 2 Status must be determined immediately: Is your client a U.S. citizen? If not, what is the client s status? What status might the client seek in the future?

12 Lawful Permanent Resident (LPR) Green Card Holder May live and work in the U.S. indefinitely Must naturalize to become a U.S. Citizen Primary concerns: Deportability Inadmissibility will prevent re-entry to U.S. if client leaves for trip abroad Naturalization - 3 or 5 years of good moral character

13 Undocumented Entered without inspection (EWI) Entered lawfully (e.g., with visa) but overstayed visa Primary concerns: Preserve future eligibility by avoiding inadmissibility Remain under the radar

14 Refugee, Asylum Applicant or Asylee Well-founded fear of persecution based upon: Race Religion Nationality, Social group Political opinion Usually must apply for asylum within 1 year of entry

15 Refugee, Asylum Applicant or Asylee Primary concerns: Deportability Inadmissibility Application for L.P.R. Re-entry to U.S. if leave for trip abroad Avoid aggravated felony, particularly serious crime, or violent and dangerous crime.

16 Temporary Protected Status (TPS) Temporary safe haven in U.S. based on: Armed conflict Natural disaster Other extraordinary and temporary circumstances

17 Temporary Protected Status (TPS) Primary concerns: Deportability Inadmissibility Application for L.P.R. Re-entry to U.S. if leave for trip abroad A felony or two misdemeanors will disqualify for TPS Felony possible imprisonment for one year or more Misdemeanor possible imprisonment for 6 to 364 days

18 Non-immigrant Visa Holder Business traveler (B1 visa) Tourists (B2 visa) Students (F1 visa) Temporary workers (H-1B, L1, J1 Visas) Primary concerns: Deportability Inadmissibility Application for L.P.R. Re-entry to U.S. after trip abroad

19 Conviction Part 1 8 U.S.C. 1101(a)(48)(A) A formal judgment of guilt entered by court If adjudication of guilty is withheld Judge or jury finds guilt; or Plea of guilty or no contest; or Admission of sufficient facts to warrant a finding of guilt.

20 Conviction Part 2 8 U.S.C. 1101(a)(48)(A) Punishment, penalty, or restraint on liberty to imposed Incarceration Probation Fine Restitution Community-based sanctions such as rehab Work or study release Revocation or suspension of driver s license Community service Deprivation of non-essential activities or privileges

21 Key Concept No. 3 Conviction is very broad, and includes: Judge or jury finds guilt; or Plea of guilty or no contest; or Admission of sufficient facts to warrant a finding of guilt.

22 Exercise Is it a conviction?

23 Conviction Juvenile Adjudication Deferred Prosecution Agreement Deferred Judgment Agreement Dismiss and read-in Expungement Ordinance Violation

24 Key Concept No. 4 Fact-Based Removal: Not just convictions, but admission to facts can render you removable. Inadmissibility only requires admission of crime, not conviction Reason to believe standard for drug trafficking

25 Key Concepts No. 5 If the sentence is not withheld, then the imprisonment counts Suspended sentences

26 Key Concept No. 6 How to Determine whether a Conviction is a Removable Offense? Categorical Analysis of the Essential Elements of the Criminal Offense and Removability Provision Modified Categorical Approach Examine the Record of Conviction: Complaint, information or indictment Plea hearing Verdict Judgment of Conviction Sentencing hearing

27 Crime Involving Moral Turpitude No statutory definition Reprehensible Conduct Specific intent, deliberateness, willfulness or recklessness Bodily harm or injury Intent to defraud Silva-Trevino, 24 I&N Dec. 687 (AG 2008): Step One: Categorical approach Step Two: Modified categorical approach Step Three: Going beyond the record

28 Crime Involving Moral Turpitude Is it a CIMT? Theft Fraud Drunk Driving Drugs Guns Sex offenses

29 Crime Involving Moral Turpitude Spousal battery Battery causing serious bodily injury Matter of Solon, 24 I&N Dec. 239 (BIA 2007) - sets up mens rea continuum: Intentional Reckless Negligence more than offensive touching serious bodily injury not CIMT

30 Key Concepts No. 7 Mens rea is the focus of any analysis of whether a conviction is a CIMT. Elements of the offense State case law Federal case law

31 Domestic Violence 18 U.S.C. 1227(a)(2)(E) Domestic violence Stalking Child abuse, neglect or abandonment Violation of a protection order

32 Domestic Violence Only convictions after lawful admission Only convictions after 9/30/1996 DV battery may trigger DV ground. Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006)

33 Key Concept No. 8 Domestic violence is only a ground of deportability, but a client can be inadmissible for a domestic violence conviction if it is also a CIMT.

34 Aggravated Felony Laundry list of charge-based or sentence-based offenses (8 U.S.C. 1101(a)(43)). Charge-Based Aggravated Felonies: Murder Rape Sexual abuse of a minor Drug trafficking Gun trafficking Child pornography

35 Aggravated Felony >364 days jail Sentence-based aggravated felonies Crime of violence Theft Receipt of stolen property Burglary Passport/Document Fraud Commercial bribery Counterfeiting Forgery Trafficking in vehicles w/ altered VIN Obstruction of justice Perjury or subornation of perjury Bribery of a witness

36 Aggravated Felony Crimes with expansive definitions Crime of violence 18 U.S.C. 16 Sexual abuse of a minor Includes statutory rape Theft/Fraud Obstructing Justice

37 Aggravated Felony Crime of Violence 18 U.S.C. 16 Subsection (a) Use, attempted use, or threatened use of physical force against the person or property of another Imprisonment of 365 days or more Subsection (b) Substantial risk that physical force against the person or property of another Felony Imprisonment of 365 days or more

38 Aggravated Felony Fraud or deceit Loss to victim exceeds $10,000 Not actual, but intended loss

39 Key Concept No. 9 Misdemeanor can be a Felony E.g., Sexual abuse of a minor Misdemeanor sexual assault is an AF if the victim is minor Even if the relationship was consensual Example - 4 th Degree Sexual Assault Guerrero-Perez vs. I.N.S., 242 F.3 rd 727 (7 th Cir. 2001)

40 Controlled Substance Offense Inadmissible Any drug conviction, but waiver if: Single conviction for Simple possession of 30 grams or less of marijuana and Extreme hardship to spouse, parent or son or daughter who is a U.S. citizen or LPR Drug abuser or addict Drug trafficker reason to believe

41 Controlled Substance Offense Deportable Any controlled substance conviction, except: Single conviction for Simple possession of 30 grams or less of marijuana Drug abuser or addict Drug trafficking is an aggravated felony

42 Firearms Firearm or destructive device (18 USC 921(a)) Any weapon, part or accessory Ground of deportation, not inadmissibility Felon in possession of firearm = aggravated felony

43 Firearms Conviction of violating any law: Purchasing Selling Offering for sale Exchanging Using Owning Possessing Carrying

44 Resources Immigration Law and Crimes, Dan Kesselbrenner and Lory D. Rosenberg (Updating Editor, Maria Baldini- Potermin), West Publishing Immigration Consequences of Criminal Activity, Mary E. Kramer, AILA Publications Tooby s Guide to Criminal Immigration Law, Norton Tooby, Free download at: Defending Non-Citizens in Illinois, Indiana and Wisconsin, Maria Baldini-Potermin, Free download at: blicdefenders/

45 Resources Padilla Practice Advisory, Immigration Defense Project, Free download at: s/crimimmnews.htm National Immigration Project ( )

46 Resources National Immigrant Justice Center s Defenders Initiative: Trainings for state and federal defenders Individual case consultation for defense attorneys on immigration consequences of plea offers ( ) defenders@heartlandalliance.org

OVERVIEW OF IMMIGRATION CONSEQUENCES ANALYSIS

1 OVERVIEW OF IMMIGRATION CONSEQUENCES ANALYSIS May 2015 2 Padilla v. Kentucky: Defense counsel is constitutionally obligated to provide affirmative, correct advice about immigration consequences to noncitizen