Representing Immigrant Defendants in New York Sixth Edition

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1 Representing Immigrant Defendants in New York Sixth Edition Manuel D. Vargas Senior Counsel Immigrant Defense Project Immigrant Defense Project Alisa Wellek, Executive Director Mizue Aizeki, Deputy Director Benita Jain, Managing Attorney Marie Mark, Supervising Attorney, Padilla Support Center Michelle Parris, Staff Attorney, Training and Resources Director 40 West 39 th St., Fifth Floor New York, NY

2 This edition of this publication was supported in part by a grant from the Ford Foundation 2017 by the Immigrant Defense Project and Manuel D. Vargas

3 Foreword xii Preface xiii Acknowledgments xiv About the Author xv About the Immigrant Defense Project xvi How To Use This Manual xvii Where To Get Help xix List of Figures xxi List of Abbreviations xxii REASONS TO CONSIDER THE IMMIGRATION CONSEQUENCES OF A CLIENT S CASE 1.1 The Constitutional Duty of Defense Counsel Under Padilla v. Kentucky to Provide Effective Assistance Regarding the Immigration Consequences of a Criminal Case The Risk That A Criminal Disposition Will Trigger Your Noncitizen Client s Removal From The United States Based on Deportability or Inadmissibility A Deportability v. Inadmissibility B What criminal dispositions trigger deportability? C What criminal dispositions trigger inadmissibility? D When do you need to be concerned that the criminal disposition may also eliminate a possibility of relief from deportability or inadmissibility? E What will happen if the criminal disposition triggers deportability or inadmissibility? F What are the long-term effects of a removal order for your noncitizen client? The Risk That A Criminal Disposition Will Bar Your Lawful Permanent Resident Client From U.S. Citizenship The Professional Duty To Investigate and Advise Your Noncitizen Client Regarding the Immigration Consequences of a Criminal Case A Duty to inquire about citizenship/immigration status at initial interview stage B Duty to investigate and advise about immigration consequences of plea alternatives C Duty to investigate and advise about immigration consequences of sentencing alternatives The Critical Difference That You As a Criminal Defense Lawyer Can Make For Your Noncitizen Client

4 DETERMINING YOUR CRIMINAL DEFENDANT CLIENT S CITIZENSHIP AND IMMIGRATION STATUS 2.1 Why You Should Carefully Determine The Citizenship And Immigration Status Of Each New Client Is Your Client A Noncitizen? A Samples of common documentation of U.S. citizenship status B Charts for determining citizenship of children born abroad to parents who were or later became U.S. citizens If Your Client Is A Noncitizen, What Is Your Client s Particular Immigration Status? A Lawful permanent resident status and samples of common documentation of such status B Refugee or asylee status and samples of common documentation of such status undocumented, but might be eligible in the future to obtain lawful permanent resident or asylee status or other protection from removal D Client does not fall into any of the above categories POSSIBLE IMMIGRATION CONSEQUENCES OF A NONCITIZEN CRIMINAL DEFENDANT CLIENT S CASE 3.1 Potential Immigration Consequences Depend On Your Client s Immigration Status Your Client Is A Lawful Permanent Resident A The client and a suggested approach to the case: Focus on avoiding deportability and inadmissibility B Criminal dispositions that make a lawful permanent resident subject to removal based on deportability B(1) Aggravated felony B(2) Crime(s) involving moral turpitude B(3) Controlled substance offense B(4) Firearm offense B(5) Crime of domestic violence, stalking, crime against children, or violation of protection order B(6) Offenses that do not require conviction C Criminal dispositions that make a lawful permanent resident subject to removal based on inadmissibility D Relief from removal that may be available to a lawful permanent resident, and criminal dispositions to avoid to preserve relief possibility D(1) Cancellation of removal D(2) Waiver of criminal inadmissibility D(3) Withholding of removal

5 3.2.E Additional issues to consider if your client avoids removal E(1) Inability to travel outside the United States E(2) Ineligibility for U.S. citizenship Your Client Is A Refugee Or A Person Granted Asylum (Who Has Not Yet Obtained Lawful Permanent Resident Status) A The client and a suggested approach to the case: Focus on avoiding inadmissibility B Criminal dispositions that make a person admitted as a refugee subject to removal C Criminal dispositions that make a person granted asylum subject to removal D Relief from removal that may be available to your refugee or asylee client and criminal dispositions to avoid to preserve relief possibility But Might Be Eligible In The Future To Obtain Lawful Permanent Resident Or Asylee Status Or Other Protection From Removal A The client and a suggested approach to the case B Preserving a client s possible eligibility for lawful permanent resident status C Preserving a client s possible eligibility for asylum or other relief from removal to a country where the client may suffer persecution or which is experiencing civil strife or disaster Your Client Is A Noncitizen Who Does Not Fall Into Any Of The Above Categories Or Who Does But Will Be Unable To Avoid Removal: Additional Issues To Consider A Ineligibility for readmission to the United States after removal or voluntary departure B Ineligibility for voluntary departure in lieu of removal C Ineligibility for early release from prison for removal D Enhanced liability for illegal reentry after removal ANALYZING NEW YORK DISPOSITIONS UNDER FEDERAL IMMIGRATION LAW 4.1 What Is A Conviction Under Immigration Law? A Juvenile delinquency adjudication B Juvenile offender disposition C Youthful offender adjudication D Adjournment in contemplation of dismissal F Drug treatment diversion H Plea of not responsible by reason of mental disease or defect I Conviction on appeal J Vacated conviction

6 4.2 What Is A Sentence To A Term Of Imprisonment Under Immigration Law? A Indeterminate sentence of imprisonment B Probation, conditional discharge, or unconditional discharge C Commitment to a mental institution or youth facility and Divisibility Analysis A The categorical approach conviction B(1) Identifying a divisible statute permitting review of the record of conviction B(2) Record of conviction generally C(1) Certain aggravated felony category components C(2) Controlled substance ground exception for single offense of possession of 30 grams or less of marijuana C(3) Crime of domestic violence ground domestic relationship component Immigration Consequences of Accessory and Preparatory Offenses A Federal misprision of felony and possible state counterparts B Federal accessory after the fact and possible state counterparts C Solicitation or facilitation D Attempt E Conspiracy F Sentencing considerations STRATEGIES TO AVOID THE NEGATIVE IMMIGRATION CONSEQUENCES OF A NEW YORK CRIMINAL CASE 5.1 Preliminary Steps To Disclose Or Not To Disclose Noncitizen Status General Strategies In Criminal Proceedings A If your client is cooperating with law enforcement, or is a victim of certain crimes and assisting law enforcement, seek an informer or other special visa, or an agreement not to deport your client A(1) Obtain an informer or S -visa A(3) Obtain a U-visa for victims of other crimes A(4) Obtain commitment by the federal government not to remove your client B Move to dismiss case of a particularly sympathetic client in furtherance of justice (Clayton motion) C Move to remove case of a juvenile offender client to family court

7 5.3.D Obtain adjournment in contemplation of dismissal if possible E If your client wishes to plead guilty, negotiate a plea and sentence that does not make your client subject to removal from the United States or that at least does not make your client ineligible for relief from removal F If your client is pleading guilty, avoid admissions of conduct beyond elements of offense G If your client is pleading guilty based on an understanding that conviction will not trigger negative immigration consequences, your client should so state when pleading H Move to withdraw an uninformed guilty plea prior to sentencing I 5.3.J If your client does not wish to plead guilty after being informed of the immigration consequences of a plea deal, litigate legal issues and/or go to trial even where you might not have ordinarily done so Make sure your client receives youthful offender treatment if your client is eligible your client is eligible L File a notice of appeal M Seek post-judgment relief N Seek a pardon from the governor Sex Offense, Assault, Criminal Mischief, and Robbery) Fraud Offense) Strategies and Resources Regarding Immigration Detainers/Holds Strategies And Resources In Later Removal Proceedings

Defending Non-Citizens in Illinois, Indiana, and Wisconsin by Maria Theresa Baldini-Potermin

Defending Non-Citizens in Illinois, Indiana, and Wisconsin by Maria Theresa Baldini-Potermin with Heartland Alliance s National Immigrant Justice Center, Scott D. Pollock & Associates, P.C. and Maria Baldini-Potermin