Highlights AILA Northwest Regional Conference March 16, 2018 Kathy Brady, Immigrant Legal Resource Center Sara Sluszka, Washington Defense Association s Immigration Project Kelly Vomacka, Law Office of Kelly Vomacka Hypo # 1. Marijuana and Other Drugs 2 March 15-16, 2018 Page 1 of 24
Jeff is an LPR and Oregon resident. In 2008 he was convicted under a state statute that prohibits possessing 28.5 grams or more of mj. He had possessed 50 grams. In 2010 Jeff visited Mom in Ireland for a few weeks. Since 2013 Jeff has used medical marijuana, in accord with Oregon law. In 2015 he got the 2008 conviction expunged, using rehabilitative post-conviction relief. In 2017 Jeff applied for naturalization. 3 In 2008, did Jeff become deportable for a controlled substance (CS) conviction? INA 237(a)(2): Deportable for a conviction relating to a federally-defined CS, other than arising from a single incident involving possession for personal use of 30 grams or less of marijuana The 30 grams amount is a fact-based question ( circumstance-specific ). ICE can prove the amount was more than 30 grams using any reliable and probative evidence, including from outside the record. Matter of Davey, 26 I&N 37 (BIA 2012), Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014) 4 March 15-16, 2018 Page 2 of 24
Did the conviction make him inadmissible? In 2010, was he an arriving alien? Did he become deportable per INA 237(a)(1)? Inadmissible for conviction, or for formally admitting having committed, an offense relating to a federally-defined CS. INA 212(a)(2) (Possible waiver, but no automatic exception, for possession of 30 grams. INA 212(h)) An LPR returning from a trip abroad is not seeking a new admission, unless she comes within an exception set out at INA 101(a)(13)(C). 5 Did getting the offense expunged in 2015 help? Immigration authorities don t accept rehabilitative relief to eliminate a conviction -- unless 1) Application is for DACA (to date, this is also included in drafts of DACA legislation) 2) In immigration proceedings in the Ninth Circuit only, certain minor drug convictions from on or before 7.14.11 See Lujan-Armendariz v. Ashcroft, 222 F3d 728 (9 th Cir. 2000), overruled prospectively by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011)(en banc), and see Advisory at www.ilrc.org/resources/practiceadvisory-lujan-nunez-july-14-2011 6 March 15-16, 2018 Page 3 of 24
Lujan-Armendariz Requirements On or before 7.14.11 First drug crime Possess, possess paraph, Give away small mj, or Less serious No prior pre-plea diversion No probation violation But not Use! 7 Is Jeff still deportable under 237(a)(1) or did 2015 expungement save him? Assume that Jeff s conviction qualifies for Lujan- Armendariz protection. Does that help? Lujan-Armendariz: Any state rehabilitative relief gives a qualifying conviction the same protection as the FFOA expungement at 18 USC 3607. 18 USC 3607(b): The disposition shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose. 8 March 15-16, 2018 Page 4 of 24
Admission, not Conviction Formally admitting to DHS that one committed an inadmissible drug crime brings one within 212(a)(2) -- even without a conviction. Possessing a federally-defined CS like marijuana is a federal crime even if the conduct took place in one s own home and was permitted under state law. Admitting this conduct can make one inadmissible. But if a criminal court heard charges on conduct and the result was less than a conviction (i.e., charges dismissed or conviction vacated), the person cannot be held inadmissible for admitting that conduct. See Matter of Seda, 17 I&N Dec. 550 (BIA 1980) and other cases cited in Advisory.s2 9 Naturalization Interview: Admissions At the interview, the USCIS officer asks Jeff if he did actualy possess about 50 grams of marijuana in 2008, when he was convicted. Jeff says he did. USCIS asks if he knowingly possessed marijuana at any other time. Jeff says that starting in 2013, he has used medical mj to help with periodic back spasms. He assures the officer that it all has been legal. 10 March 15-16, 2018 Page 5 of 24
Final Questions for Jeff 1. Did Jeff trigger a statutory bar to establishing good moral character when he admitted the facts of his 2008 criminal case? Or his use of medical marijuana since 2013? 2. The N-400 reveals that Jeff used to work as an accountant for a licensed marijuana distribution company. Any problem? 3. Extra credit: Could his admission about the 2008 conduct ever make him deportable under INA 237(a)(2)? 11 Warning: Admitting to Marijuana 29 states + DC have legalized medical mj 9 states + DC have legalized recreational mj But it s still a federal offense to possess it! Admitting a federal drug offense makes a person inadmissible, even with no conviction. In some areas, including ports of entry nationally and CIS within Washington State, DHS officers are asking folks if they have possessed/used mj, and then charging them with being inadmissible 12 March 15-16, 2018 Page 6 of 24
Don t use mj until you re a citizen. If truly needed as medicine, get legal consult. Never carry mj, medical mj card, paraphernalia. No mj photos or text on phone, Facebook, etc. Never discuss any conduct involving mj with any police or DHS employee. Stop talking and ask for a lawyer. Warn the Community: Marijuana Best Practices 13 Download for free: ~~ For More Information ~~ ILRC Marijuana Practice Advisory One-page Community Flyers on marijuana risks for immigrants, in English, Spanish, Chinese https://www.ilrc.org/warni ng-immigrants-aboutmedical-and-legalizedmarijuana 14 March 15-16, 2018 Page 7 of 24
Part II. Overview: The Categorical Approach Update: The Domestic Violence Deportation Ground, INA 237(a)(2)(E) 15 I. The Potential of the Categorical Approach Example: Crime of violence II. In the Ninth Circuit, does the categorical approach apply to: A. Identifying the type of violation for DV protective order, INA 237(a)(2)(E)(ii)? B. Identifying the domestic relationship for DV conviction, INA 237(a)(2)(E)(i)? 16 March 15-16, 2018 Page 8 of 24
Hypo #2 COV/DV and the Categorical Approach LPR Hugh pleads to assault in second degree, DV, under RCW 9A.36.021(1)(g) (assault by strangling). Sentenced to 12 months prison with five-year nocontact order. Assume RCW 9A.36.021(1)(g) is a crime of violence under 18 USC 16(a). ICE charges this is deportable conviction of a crime of DV and an aggravated felony. Any defense? Yes! The categorical approach. 17 Categorical Approach Step 1 of Categorical Approach: Does the minimum conduct required to violate any part of the criminal statute always trigger the removal ground? Judged not by what the person did, or admitted -- but by the least onerous way to violate the statute We compare minimum conduct to the technical, federal, generic definition of the removal ground (here, crime of violence ). Must match entirely. 18 March 15-16, 2018 Page 9 of 24
Facts of the case, or facts pled to, are irrelevant. [I]f the crime of conviction covers any more conduct than the generic offense, then it is not [a categorical match] even if the defendant's actual conduct (i.e., the facts of the crime) fits within the generic offense's boundaries. - Mathis v. United States, 136 S. Ct. 2243, 2248, 195 L. Ed. 2d 604 (2016) 19 Our defense: Not a crime of violence Say the generic definition of a COV is 18 USC 16(a). The categorical approach applies, so we compare minimum conduct of Wash A2. Was Hugh s conviction of a COV?? 20 March 15-16, 2018 Page 10 of 24
Step 1: Categorical Match or Overbroad? Is RCW 9A.36.021(1) as a whole overbroad compared to 18 USC 16(a)? In other words: Could someone, somewhere be found guilty of that statute, but not be found guilty of 18 USC 16(a)? If YES, 9A.36.021(1) is overbroad and we win this step. If NO, it is a categorical match to 18 USC 16(a) and every conviction of that statute is a COV. 21 ID the Generic Definition of Removal Ground 18 USC 16(a): any offense... that... has as an element the use, attempted use, or threatened use of physical force against the person or property of another. Definition of physical force here: violent force that is, force capable of causing physical pain or injury to another person. It does not include a mere offensive touching. - Johnson v. United States, 559 U.S. 133, 140 (2010) 22 March 15-16, 2018 Page 11 of 24
ID the Minimum Conduct to violate criminal statute RCW 9a.36.021(1)...under circumstances not amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or (b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by intentionally and unlawfully inflicting any injury upon the mother of such child; or (c) Assaults another with a deadly weapon; or (d) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or (e) With intent to commit a felony, assaults another; or (f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture; or (g) Assaults another by strangulation or suffocation. 23 Compare their elements: Can minimum conduct for RCW 9A.36.021 fall outside 18 USC 16(a)? 18 USC 16(a) RCW 9A.36.021(e) use, attempted use, or threatened use of (aggressive, violent, physical) force Does not include offensive touching with intent to commit a felony, assaults another Assault does include offensive touching Felony includes any felony 24 March 15-16, 2018 Page 12 of 24
Conclusion: statute is overbroad Now on to Step 2 25 Categorical Approach Step 2: Is the statute divisible? Is RCW 9a.36.021(1) just one indivisible crime? (So we can use the minimum conduct from any subsection) => Subsections are just different means (good for us) Or is it divisible into several distinct crimes, listed together for convenience? => Subsections are different crimes, different elements. Jury must decide unanimously which subsection D committed, or D goes free. (bad for us) 26 March 15-16, 2018 Page 13 of 24
Conclusion: Not divisible Not COV Not CODV Jury can find guilt even if they disagree as to which 9A.36.021(1) subsection D committed. That means the statute is indivisible and overbroad. IJ or officer can t consider a particular subsection. Must presume conviction was for minimum conduct required for 9A.36.021(1) as a whole. Minimum conduct for all 9A.36.021(1) is an offensive touching with intent to commit any felony not a COV. No one convicted of that statute has a COV. Not a COV means not a DV or aggravated felony. 27 II. When Does Categorical Approach Not Apply? All agree it applies to determine if an offense is a COV. But the BIA and Ninth Circuit conflict as to whether categorical approach applies to: a) Proving that a judicial finding of a violation of an order satisfies requirements for 237(a)(2)(E)(ii) b) Proving the domestic relationship for a deportable crime of DV, 237(a)(2)(E)(i)? 28 March 15-16, 2018 Page 14 of 24
A. Deportable for Judge s finding of violation of DV no-contact order Noncitizen whom a [civil or criminal] court determines has engaged in conduct that violates the portion of a [domestic violence] protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. After admission, based on conduct after 9/30/96. --INA 237(a)(2)(E)(ii) 29 Hypo 1A: Hugh violates order Hugh completes his sentence, attends anger management, and finds religion. One day when he returns kids to wife after visit, he walks them partway up the drive instead of dropping them at the curb. This violates his DV stay-away order. Amended complaint reads, On or about March 4, 2016, defendant violated an anti-harassment order dated 5/5/2015, in violation of RCW 9A.46.040. What would this do? What should Hugh do? 30 March 15-16, 2018 Page 15 of 24
Conflict Watch Out! Ninth Circuit: Cat. approach applies here. If statute is divisible, ICE is limited to facts from the reviewable record of conviction to prove it was a deportable DV violation. Alanis-Alvarado v. Holder, 558 F.3d 833 (9th Cir. 2009); Szalai, 572 F.3d 975 (9th Cir. 2009) BIA: Because this ground reaches civil and criminal orders, cat. approach does not apply. ICE can use any reliable evidence to prove what kind of order violation the judge found. Matter of Obshatko, 27 I&N Dec. 173, 177 (BIA 2017) 31 B. Deportable for conviction of a Crime of DV Conviction of a Crime of violence as defined in 18 USC 16, committed against a Victim who is current or former spouse, person co-habiting as a spouse, co-parent, or other person protected under state DV laws, where Conviction is after 9/30/96 and after admission -- INA 237(a)(2)(E)(i) 32 March 15-16, 2018 Page 16 of 24
Proving the Protected Domestic Relationship Assume ICE proves under the categorical approach that there is a COV. How does it prove the protected relationship? BIA and many circuits say domestic nature of the offense is circumstance-specific a factual question. See Matter of H. Estrada 26 I&N Dec 749 (BIA 2016) Ninth Circuit requires evidence from record of conviction to prove relationship, altho does not require relationship to be element of the offense. Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) 33 USE CAUTION Ninth Circuit could shift to the BIA rule on either/both of the deportable DV issues. Prepare a back-up defense, and assert current Ninth Circuit law. ICE may appeal any good decision 34 March 15-16, 2018 Page 17 of 24
Additional Resources WDAIP website: https://defensenet.org/resourcecategory/immigration-resources/ ILRC Advisories at www.ilrc.org/crimes, such as: Deportable Crimes of Domestic Violence: Matter of H. Estrada (June 23, 2016), at www.ilrc.org/sites/default/files/resources/practi ce_advisory_estrada_dv.pdf How to Use the Categorical Approach Now (2017) at www.ilrc.org/sites/default/files/resources/how_t o_use_the_categorical_approach_now_april_201 7.pdf 35 Slide Title Here How to work with a PCR lawyer? 36 March 15-16, 2018 Page 18 of 24
Speaking the language What do you mean by...? 37 What information does PCR lawyer need? 38 March 15-16, 2018 Page 19 of 24
What are Washington PCR vehicles? Most common: Motion to withdraw plea or for new trial (CrR 7.8 in trial court, or PRP in COA) based on: IAC under Padilla Other IAC, such as inadequate investigation Insufficient factual statement Inappropriate Alford plea Plea was not knowing, voluntary, intelligent Interpretation problems? Mental health issues? Etc. 39 Washington vehicles, cont d Avoiding the one-year deadline (for CrR 7.8 motions and PRPs) In re Tsai, 183 Wn.2d 91, 351 P.3d 138 (2015) (Padilla is retroactive) Statutory exceptions (RCW 10.73.100) No jurisdiction or invalid on its face (RCW 10.73.090) Equitable tolling (State v. Littlefair) File direct appeal after extending time (clock restarts) 40 March 15-16, 2018 Page 20 of 24
Washington vehicles, cont d Direct appeal Some other possibilities: Might first need to successfully move to extend time for filing appeal Motion to amend sentence (eg 365 364) Prosecutor agreement to amend sentence, amend charge, or dismiss In re Barr plea (amend and plead guilty to some other random crime) 41 Slide Title Here Success stories 42 March 15-16, 2018 Page 21 of 24
Problem: Heroin sale Long-time LPR, USC family, college student $50 street sale of heroin to undercover cop Client enters drug court, including stipulation to facts Lawyer never mentions immigration consequences Client is terminated from drug court and is sentenced to 15 months in prison. Before termination, defense lawyer amply complies with Padilla, begs client to comply with drug court ICE picks him up on release from prison. Detained and facing imminent removal. 43 CrR 7.8 motion to withdraw plea Argue that the stipulation is a critical stage of the proceedings and Padilla applies PCR Success Prosecutor and judge both like client, after his many months in a therapeutic court Prosecutor agrees to withdraw plea, and client pleads guilty to Solicitation Client leaves detention, all proceedings end, client returns to his life 44 March 15-16, 2018 Page 22 of 24
Problem: Shoplifting LPR, no family, 20 years in US Shoplift from 7-Eleven, charged with with Theft 3 No priors Client pleads guilty at arraignment. No lawyer appointed, although client is indigent. No one advises her of immigration consequences. Client is sentenced to 365/365 on condition she pays restitution, $100 costs, has no contact with store, and does not reoffend for one year 15 years ago 45 PCR Success Could have moved to withdraw plea, because she had no lawyer but client lacked funds for that more complex motion Instead, moved to amend sentence to 364/364 Judge grants motion and apologizes for making us wait 10 minutes 46 March 15-16, 2018 Page 23 of 24
Problem: Domestic violence VNCO Client found in girlfriend s home when police arrive for other reasons Small, conservative county Client pleads guilty. His lawyer marks a box allowing the court to consider the police report to establish the factual basis for the plea. Client is sentenced to 364/334, $100 fine Client has 4.5 years of aggregated time on prior charges 47 Moved to withdraw plea because the checkbox introduced an immigration problem. In the alternative, moved to reduce sentence to 179/149. PCR Success Negotiated with prosecutor, repeatedly. Wore him down. Because it s a small county, the elected prosecutor got involved. He agreed to reduce sentence, just this once. 48 March 15-16, 2018 Page 24 of 24