DETAILED TABLE OF CONTENTS IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED.

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1 DETAILED TABLE OF CONTENTS IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, 4TH ED. Preface: Goin to the Crossroads of Immigration and Criminal Law (and beyond)...v Dedication...xi Acknowledgments...xiii Abbreviations...xxxv Table of Decisions Index Chapter One: An Overview of Basic Immigration Terms and the Immigration Law System...1 Who (or What) Is Your Client? An Introduction to Statuses...1 The American Citizen...2 The Lawful Permanent Resident ( Green Card Holder)...3 The Nonimmigrant Visa Holder...3 Tourists and temporary workers without visas from the Caribbean, Canada, and Mexico...4 The Visa Waiver Program (tourists without visas)...4 Other Protective Categories...5 Refugees and asylees...5 Temporary protected status...7 Parole...7 Deferred action...8 Order of supervision...9 No Status: Present Without Inspection or Admission, or Overstay...9 Other Useful Terms...10 Notice to Appear...10 I Visa...11 Employment Authorization Document...11 Authority over Immigration Law Enforcement: A Look at the Government Agencies...11 The Department of Homeland Security...11 An arrest at the border...13 An arrest upon termination of sentence...13 Arrest while out in the community...13 The Department of State...14 The Executive Office for Immigration Review...14 xv

2 xvi IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. The Board of Immigration Appeals...15 Attorney general review...16 The Administrative Appeals Office...16 The Agencies at Work: Removal Proceedings...17 Notice to Appear...17 Course of Proceedings...18 The Burden of Proof...20 Applications for Relief...20 Board of Immigration Appeals...21 Travel while a BIA appeal is pending...23 Review After the Board of Immigration Appeals...23 Federal Judicial Review...24 The REAL ID Act...26 Jurisdiction...27 No review of discretionary determinations...27 Petitions for Review to the Court of Appeals...27 Petitions for Habeas Corpus to the Federal District Courts...29 Tips and Tools of the Trade Federal Bureau of Investigation (FBI) rap sheet Accurint PACER FOIA requests Polygraph examinations Westlaw, LEXIS, AILALink, and AILA.org Psychological and medical evaluations Country-condition experts Country-condition sources of information (websites) Confirmation-of-appointment letters Intake sheets...33 Sources of Legal Authority...34 Recent Legislation...34 Appendix 1A: ICE Offices of Chief Counsel...35 Appendix 1B: List of Detention Centers...43 Appendix 1C: Executive Office of Immigration Review...45 Appendix 1D: Structure of CBP...53 Appendix 1E: Structure of ICE...55 Appendix 1F: Structure of USCIS...57 Appendix 1G: Sample Notice to Appear...59 Appendix 1H: FBI Rap Sheet Request...63 Appendix 1I: Appointment Confirmation Letter/Intake Sheet...65 Appendix 1J: Memorandum of Law on Polygraph...67

3 DETAILED TABLE OF CONTENTS xvii Chapter Two: The Definition of Conviction According to Immigration Law...73 The Statutory Definition of Conviction...73 Beyond a Reasonable Doubt Standard Required...74 Finality...74 Withholds or Deferrals of Adjudication...75 A withhold with no penalty...76 Pretrial Intervention or Diversion...76 Admissions to the prosecutor do not qualify...77 Expungements and Record Sealings...77 First offender/youthful offender provisions...78 Roldan not followed in the Ninth Circuit...78 The other federal circuits...81 FFOA expungements...82 Pardons...83 The effect of a pardon on a ground of inadmissibility...84 Pardon must be full and unconditional...84 Foreign pardons...85 Postconviction Relief on the Merits: Matter of Pickering...85 The burden of proof in Pickering-type cases...88 Motions to reopen...89 BIA decisions after Pickering...90 The federal courts approach to Pickering...90 Vacatur found effective in eliminating the conviction...91 Vacatur found ineffective for immigration purposes...91 Postconviction Relief Modifying the Sentence Imposed...95 Acts of Juvenile Delinquency...95 Other Juvenile Acts...98 Foreign Convictions...98 Proof of Convictions...99 Suspensions of Sentence Appendix 2A: BIA Response to Motion to Reopen Appendix 2B: BIA Response to Motion to Remand Appendix 2C: Motion for Postconviction Relief Appendix 2D: Memorandum in Support of Motion for Postconviction Relief Appendix 2E: Sample Motion to Vacate Appendix 2F: Memorandum in Support of Motion to Vacate...117

4 xviii IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Chapter Three: Consequences of Criminal Activity: Removal from the United States Inadmissibility The Applications of INA 212(a)(2)(A) Knocking at the door Applicants for admission When a Lawful Permanent Resident (LPR) seeks admission The defunct Fleuti doctrine Adjustment of status Visa applicants at American consular posts abroad Change of status Parolees Persons physically present in violation of the law the EWIs Temporary protected status Naturalization and good moral character Deportability INA 237(a) Deportability vs. Inadmissibility Expedited Removal of Certain Aggravated Felons Relief from Expedited Removal Detention Mandatory Detention Re-entering After Removal: Criminal Prosecution and Reinstatement of Removal Re-entry of Removed Aliens Challenging the underlying order Reinstatement of Removal Limited exception for certain nationality-based benefits Supreme Court upholds retroactive application of 241(a)(5) How the Government Locates Your Client The Sure Ways Serving time in state or federal detention, both pre and post-trial Filing an immigration application Frequently, but Not Always While reporting to a probation or parole officer When re-entering the United States after a trip abroad Increasingly, and Who Knows What the Future Holds Local police Department of Motor Vehicles, Social Security Administration Appendix 3A: Sample Motion to Terminate...145

5 DETAILED TABLE OF CONTENTS xix Chapter Four: Consequences of Criminal Activity: Detention Inside the United States Mandatory Detention Cooperating Witnesses Demore v. Kim Legal Challenges to Mandatory Detention Following Demore Bond Hearings Before the Immigration Judge Numerical Limitations and Jurisdiction Matter of Aguilar-Aquino Matter of Joseph Jurisdiction over Custody Issues Arriving aliens Federal court review Deportable respondents and EWIs The Release from Custody Requirement When released Does a sentence of imprisonment have to be imposed? Detention for Offense Not Charged on NTA Releases on or Before October 8, Other Detention Issues Non Mandatory Detention Cases: The Standard The automatic stay Detention After a Removal Order Detention during judicial review of final removal order Alternatives to detention Appendix 4A: Custody Rule Invoked Appendix 4B: Section 309 of IIRAIRA Appendix 4C: Section 303(b) of IIRAIRA Appendix 4D: BIA Bond Redetermination for Electronic Monitoring Chapter Five: Classifications of Crimes Under Immigration Law Section I: Methodology Re-learning the Analysis: The Categorical Approach and Beyond The categorical approach The modified categorical approach Minimal (or least culpable) conduct approach Non-elemental facts Gonzales v. Duenas-Alvarez Matter of Silva-Trevino The Facts...192

6 xx IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. The New Methodology Step one The realistic probability test Step two Step three Moral turpitude as a non-elemental fact The Burden of Proof Evidence that is necessary and appropriate After Silva-Trevino: the federal courts response Nijhawan v. Holder The facts Section II: Crimes Involving Moral Turpitude An Introduction to the Concept Includes felonies and misdemeanors The elements of the criminal statute control The question of intent Negligence vs. recklessness Divisible statutes and the record of conviction Aiding and abetting; conspiracy A Discussion of Specific Offenses and Whether They Involve Moral Turpitude Theft and larceny Burglary Fraud crimes False statements Obstruction of justice; misprision Crimes of violence Failure to Register as a Sexual Offender Crimes involving children Driving under the influence Controlled substance offenses Firearms offenses Immigration law violations Section III: Aggravated Felonies INA Definition Applies to Federal, State, and Certain Foreign Convictions Case Law Sexual Abuse of a Minor...219

7 DETAILED TABLE OF CONTENTS xxi Drug Trafficking Crimes Federal controlled substance convictions State controlled substance convictions Misdemeanors Divisible statutes Purchase Simple possession offenses Background The hypothetical felony approach The guidelines approach Matter of Yanez-Garcia Lopez v. Gonzales Multiple simple possession convictions Handling cases involving multiple misdemeanor convictions: the recidivist argument Prior conviction must be final Post-Lopez BIA decisions Post-Lopez federal court decisions Attempts and conspiracies The Definition of Crime of Violence Mens rea: the levels of intent Leocal v. Ashcroft Recklessness and the use of force Force vs. contact Particular offenses Not crimes of violence Crimes of violence Unauthorized use of a motor vehicle Firearms Offenses Whether a state firearms offense can be described by 101(a)(43)(E) Theft Crimes Gonzales v. Duenas-Alvarez Possession of stolen property Alien Smuggling Offenses That Depend on the Sentence Imposed Offenses That Depend on the Amount of Funds Involved Offenses That Depend on Commercial Advantage Aggravated Felony Must It Be a Felony?...253

8 xxii IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Misdemeanor crimes of violence Misdemeanor sexual abuse of a minor Attempts and Conspiracies Section IV: Classifications Beyond Moral Turpitude and Aggravated Felony Controlled Substance Offenses The Definition of Controlled Substance Offense Solicitation offenses Drug paraphernalia Possession must be accompanied by intent to use Reason to Believe Drug Abusers and Addicts Firearms Offenses Firearm and Destructive Device Defined Firearms as a non-elemental offense? Firearms not a ground of inadmissibility No Reason to Believe or Admission of the Essential Elements Standards Apply Money Laundering Reason to Believe Crimes of Domestic Violence Offenses Included as Ground of Deportability Crime of Domestic Violence Defined The Domestic Violence Victim Defining the victim ; applying the categorical approach Child abuse Violations of Protection Orders Applies to Convictions After September 30, Domestic Violence Offense as a Crime Involving Moral Turpitude Alien Smuggling Limited Exceptions for Smuggling an Immediate Family Member Alien Smuggling Defined The Crime of Alien Smuggling Crimes Involving Failure to Register; Visa and Passport Fraud Failure to Register Visa and Passport Fraud Visa fraud as a crime involving moral turpitude and an aggravated felony Immigration document fraud Passport fraud Export Law Violations Export Law Violations: A Matter of National Security...276

9 DETAILED TABLE OF CONTENTS xxiii Failure to Register as a Sex Offender The Adam Walsh Act Appendix 5A: AR-11 Alien Change of Address Card Appendix 5B: Upublished BIA Decision in Drug Paraphernalia Case Appendix 5C: Sample Motion to Terminate Charge Appendix 5D: Immigration Client Checklist Chapter Six: Consequences of Specific Criminal Activity Consequences of Crimes Involving Moral Turpitude Inadmissibility, Including Adjustment of Status and Visa Eligibility Admission of the essential elements Petty-offense exception Deportability/Removability Multiple criminal convictions Mandatory Detention Voluntary Departure Precommencement or early stage of removal proceedings Voluntary departure at conclusion of removal proceedings Asylum, Withholding of Removal, and Convention Against Torture Asylum Withholding of removal Convention Against Torture Naturalization Consequences of an Aggravated Felony Conviction Inadmissibility, Including Adjustment of Status and Visa Eligibility Deportability/Removability Mandatory Detention Voluntary Departure Summary of caveat eligibility for individual with aggravated felony conviction seeking voluntary departure: Asylum and Withholding of Removal Judicial review of the particularly serious crime determination Convention Against Torture Naturalization Consequences of a Controlled Substance Offense Inadmissibility, Including Adjustment of Status and Visa Eligibility Reason to believe Deportability/Removability Compare deportability to inadmissibility Mandatory Detention...313

10 xxiv IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Voluntary Departure Precommencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Consequences of a Firearms Offense Inadmissibility, Including Adjustment of Status and Visa Eligibility Deportability/Removability Cross-reference with the aggravated felony definition Mandatory Detention Voluntary Departure Precommencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Consequences for Money Laundering Offenses Inadmissibility, Including Adjustment of Status and Visa Eligibility State money-laundering offenses Moral turpitude Deportability/Removability Mandatory Detention Voluntary Departure Precommencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Consequences of a Domestic Violence Conviction The Definition Inadmissibility, Including Adjustment of Status and Visa Eligibility Cross-reference to crimes involving moral turpitude Deportability/Removability Mandatory Detention Voluntary Departure Precommencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Consequences of Alien Smuggling...329

11 DETAILED TABLE OF CONTENTS xxv Inadmissibility, Including Adjustment of Status and Visa Eligibility Deportability/Removability Cross-reference with the aggravated felony definition Mandatory Detention Voluntary Departure Precommencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Consequences for Failure to Register, Falsification of Documents, and Visa and Passport Fraud Inadmissibility, Including Adjustment of Status and Visa Eligibility Registration violation Visa fraud Possession versus use Civil or criminal document fraud violations under INA 274C Deportability/Removability Registration and Visa Fraud Civil or criminal document fraud violations under INA 274C Mandatory Detention Voluntary Departure Precommencement or preliminary stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Consequences of Export Law Violations Inadmissibility, Including Adjustment of Status and Visa Eligibility Deportability/Removability Mandatory Detention Voluntary Departure Precommencement or early stage of removal proceedings Conclusion of proceedings Asylum and Withholding of Removal Naturalization Appendix 6A: Crimes and Possible Consequences Chapter Seven: Immigration Defense: Waivers and Other Relief Adjustment of Status Available to both Permanent and Non Permanent Residents...346

12 xxvi IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Discretionary Benefit Jurisdiction Aggravated Felony Offenses Firearms Offenses Domestic Violence Offenses Visa and Registration Offenses Export Violations Waivers Under INA 212(h) The 15-Year Waiver The Extreme Hardship Waiver The Battered Spouse and Child Waiver Special Rules for Lawful Permanent Residents Aggravated felony convictions Retroactivity of the amendment Defining admission LPRs with non-aggravated felony convictions Tolling of seven-year period Available to Arriving Aliens or in Conjunction with Adjustment of Status Separate application for adjustment not required in the Eleventh Circuit Limited Availability of INA 212(h) for Persons Convicted of Violent or Dangerous Crimes Matter of Jean INA 209(c) Waiver for Refugees and Asylees Compare to the INA 212(h) Waiver Use of INA 209(c) by Certain Lawful Permanent Residents to Avoid Removal363 Asylum and Withholding of Removal Asylum Withholding of/restriction on Removal Under the INA Defining the particularly serious crime Withholding and Deferral Under Convention Against Torture Cancellation of Removal Continuous Residence Versus Lawful Permanent Resident Status Offense need not be charged in removal proceedings to stop the time The Requirement of a Lawful Admission Individuals Who Are Ineligible for Cancellation Combining Waivers Special Rule for Battered Spouses Special Rule Cancellation of Removal: NACARA The Old Friend: A Waiver Under INA 212(c)...377

13 DETAILED TABLE OF CONTENTS xxvii The 1996 Legislation The Supreme Court Decision The 2004 Regulation Cut-off dates for eligibility Individuals in exclusion proceedings IIRAIRA definition of aggravated felony retroactive: the summer of Persons Convicted by Trial Federal courts versus the regulation An individualized approach to reliance A categorical approach to reliance Door still closed Summary: developing the record for appeal Persons in Deportation Proceedings on or Before April 24, The regulation (the Soriano rule) Case law Persons physically deported prior to St. Cyr Re-entry after pretermission of 212(c) application and deportation Section 212(c) Eligibility Criteria Persons who served five years in prison for aggravated felony Waives Grounds of Inadmissibility and Comparable Grounds of Deportability..395 Matter of Blake Circuit courts of appeals Strategies for dealing with Blake Gabryelsky Filings: Adjustment of status combined with INA 212(c) Combining INA 212(c) and Cancellation of Removal Affirmative Applications for 212(c) Naturalization after a waiver under INA 212(c) relief Voluntary Departure Precommencement or preliminary stage of proceedings Conclusion of proceedings voluntary departure Is Your Client an American Citizen? An Introduction to Derivative Citizenship Watch for effective dates At birth Children born outside of the United States Individual who turned 18 before February 27, Naturalization as a Defense to Deportation Termination of Removal Proceedings for Naturalization Soldiers and Veterans...412

14 xxviii IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Relief from Alien Smuggling Charges Relief from Deportability and Inadmissibility, Absent a Conviction Waiver for smuggling immediate family members Cancellation of removal Relief from a Conviction for Alien Smuggling (An Aggravated Felony) Adjustment of status INA 212(h) waiver Cancellation of removal INA 212(c) waiver Asylum and withholding of removal Naturalization Nonimmigrant Visa Waiver Under INA 212(d)(3) Introduction: My son s been deported for an aggravated felony; can he ever come back? Jurisdiction Applications at the consulate Applications at a port of entry Separate permission to re-enter after deportation or removal (Form I-212) not required Does not waive security or terrorism grounds of inadmissibility Factors for Consideration Defending the Criminal Charge of Re-entry After Removal Appendix 7A: BIA Decision: 212(h) Waiver Appendix 7B: Summary Explanation of Unpublished BIA Decisions Appendix 7C: BIA Decision: 212(h) Waiver Chapter Eight: Fashioning a Plea to Avoid Adverse Immigration Consequences Avoiding Adverse Immigration Consequences Avoiding a Conviction Through Pretrial Diversion Beware of admissions to the crime Federal First Offender Act Treatment; 18 USC State First Offender Programs in the Ninth Circuit Keep the Case in Juvenile Court The Petty-Offense Exception Section 237 s version of the petty-offense exception Avoiding a Conviction of a Crime Involving Moral Turpitude Why It Is Important (A Quick Rundown on Consequences) Eligibility for permanent resident status Mandatory detention Naturalization...445

15 DETAILED TABLE OF CONTENTS xxix What Is Moral Turpitude? Fraud crimes Theft offenses Burglary Working with a divisible statute: control the conviction record Alternative pleas Crimes of violence DUIs (operating under the influence) Avoid Multiple Counts Summary Examples of Successful Plea Bargaining to Avoid the Crime Involving Moral Turpitude Avoiding the Aggravated Felony Conviction Why It Is Important (A Quick Rundown on Consequences) Limited eligibility for relief from removal and mandatory detention Barred from asylum No naturalization for convictions entered after November 29, Avoiding an Aggravated Felony Keep the Sentence Under One Year Avoiding Loss to a Victim in Excess of $10, Avoiding Crime of Violence by Pleading to a Non Specific Intent Crime Avoiding Alien Smuggling/Aggravated Felony Conviction Summary Examples of Effective Plea Bargaining to Avoid the Aggravated Felony Avoiding Deportability for Domestic Violence Offenses Avoid Specific-Intent Crimes Creating Eligibility for Relief INA 212(h) Less than 30 grams of marijuana Avoid the aggravated felony conviction Cancellation of Removal Avoid offenses that toll the seven years of legal residence Avoid the aggravated felony conviction Withholding of Removal and Asylum Naturalization eligibility Creating a Good Record Through the Plea Agreement and Plea Colloquy Defense and immigration counsel must work as a team Plea Agreements to Avoid (i.e., Bad Plea Deals) False statements and currency transactions Possession, paraphernalia and purchase Aggravated assault and probation only...462

16 xxx IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Multiple counts days in jail Five-year prison sentence Chapter Nine: Visas for Cooperating Witnesses S Status Introduction The Statute The Regulations Conditions of Status Adjustment to Permanent Resident Status Under S The statute The regulations Special requirements for family members Miscellaneous Tips and Advice About S Status T Status The Statute The Regulations Severe form of trafficking defined Extreme hardship defined Application Procedure Effect of pending immigration proceedings Applicants with final orders of removal Annual cap on number of admissions allowed Revocation of status Family Members Duration of nonimmigrant status and application for permanent residency U Status The Statute Criminal activity defined The Regulation Filing Qualifying family members Persons in removal proceedings Family Members Not Already in U Status Jurisdiction Appendix 9A: I-854 Inter-Agency Alien Witness and Informant Record...489

17 DETAILED TABLE OF CONTENTS xxxi Chapter Ten: Preparing and Presenting Applications That Waive a Criminal Conviction Venues: Consulate, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and Immigration Court Rules Regarding Biometrics Prior to Relief at Immigration Court The Universal List: Evidence in Support of a Waiver Evidence Relating to the Applicant Evidence Relating to Family Members Adjustment of Status Forms, Fees, and Attachments When Filing with the Court Adjustment Is Discretionary Section 212(h) Waiver 15-Year, Hardship, and Battered Spouse or Child Form and Fee When Filing with the Immigration Court Emphasis on Hardship to Family Members Discretion Must Be Warranted, Notwithstanding Hardship Refugee Waiver Under INA 209(c) Waiver Under the Pre-AEDPA 212(c) (repealed in 1996) Form and Fee When Filing with the Immigration Court Emphasis on Unrelinquished Domicile; All Equities Are Relevant Cannot have served five years in prison for an aggravated felony or felonies..510 A balancing of the equities Cancellation of Removal INA 240A(a) Form and Fee Filing with the Immigration Court Emphasis on Residency Requirements; All Equities Apply A balancing of the equities Special Rule Cancellation of Removal Form and Fee Supporting Documents Waiver Under INA 212(d)(3)(A) Form and Fee Information Required Contacting Legal Net for Assistance When Consul Declines to Accept Waiver..513 Memoranda of Law and Witness Lists Before USCIS or American Consulate Pretrial Statements to the Immigration Court Witnesses...516

18 xxxii IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY, FOURTH ED. Witness list Choosing witnesses Working with witnesses Details: The time and place of hearing, the need for an interpreter Conclusion Applications Filed After an Order of Removal Stay of Deportation: Form I Criteria Application for Permission to Reapply for Admission into the United States After Deportation or Removal Criteria Appendix 10A: Sample Memorandum in Support of Affirmative Filing for INA 212(c) Waiver Appendix 10B: Sample Pretrial Statement...531