CRIMMIGRATION: CRIMES AND IMMIGRATION CONSEQUENCES Advising Clients about the Consequences of Common Illinois Crimes Jasmine McGee Senior Attorney, September 2016
THE IMMIGRATION PROJECT The Immigration Project is a legal aid organization based in Normal, Illinois, with a satellite office in Champaign. We provide direct legal services for immigrants residing in Central and Southern Illinois. The Immigration Project collaborates and partners with numerous community based organizations to serve the 85 counties in Central and Southern Illinois. We travel to meet with clients in Peoria, Kankakee, Carbondale, and Springfield. The Immigration Project provides four types of basic immigration legal assistance: Regional Immigration Information Clinics; Immigrant Victims of Violence Services; Citizenship Application Support; and General Immigration Application Support (Family Unification, Asylum, etc.).
McLean County Foreign Born Population From 2000 to 2010 the Foreign Born Population in Bloomington, Illinois has grown from 5352 to 10,242 Undocumented Population Estimates: 2595 3
Overview of Presentation: What you need to know about immigration in general Defining Immigration Consequences Common Illinois Crimes and Consequences Examples and Questions 4
WHAT YOU NEED TO KNOW ABOUT IMMIGRATION IN GENERAL
Immigration Agencies DHS not INS - As of 2003, no longer INS now DHS (Department of Homeland Security) USCIS- Citizenship and Immigration Services ICE Immigration and Customs Enforcement ERO - Enforcement and Removal Operations HSI Homeland Security Investigations CBP (Custom and Border Protection) Air, land and sea EOIR = IMMIGRATION COURT (DOJ AND ATTORNEY GENERAL)
Immigration Status Undocumented Limbo Status: TPS or DACA Nonimmigrant status Permanent Resident/Green Card Naturalized U.S. Citizen
How do you become a Lawful/Legal Permanent Resident? FAMILY WORK OTHER - Asylum Refugee; U Visa; Diversity Visa Lottery; SIJS
Good Questions to Ask Any Foreign Born/Non Citizen Client Date of entry? Manner of entry? Entered with documents or without? If they have status, how do they have status? Ask to see LPR Card/Green Card Employment Authorization Card
LAWFUL PERMANENT RESIDENT CARD
FINDING THE A NUMBER and DATE OF RESIDENCY
DEFINING IMMIGRATION CONSEQUENCES
PADILLA V. KENTUCKY 13 In Padilla, the Supreme Court ruled that the Sixth Amendment requires defense counsel to advise defendants of possible immigration consequences associated with a plea. Failure to provide such advice constitutes ineffective assistance of counsel. Padilla v. Kentucky, 559 U.S. 356 (2010)
EXAMPLE OF CLIENTS: H1B hopes one day to be an LPR U VISA - hopes one day to be an LPR UNDOCUMENTED hopes to get DACA LPR hopes to permanently remain in US/ become a USC 14
ANALYSIS Is it a conviction? Category of crime Consequence
16 : What is a Conviction? Immigration defines conviction in the Immigration and Nationality Act - INA 101(a)(48)(A): The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where- (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
: What is a Conviction? 17 NON-CONVICTIONS: Acquittals (Finding of Not Guilty) Nolle Prosequi/Dismissal No paper ; No information ; declining charges Convictions in proceedings that do not require proof beyond a reasonable doubt or otherwise comport with certain minimum standards. PRE-TRIAL DIVERSION - Admission to State s Attorney does not qualify as conviction, if no formal admission in court Juvenile Delinquency Vacated pursuant to Padilla
What is a Conviction? 18 CONVICTIONS Deferred Judgment? YES Expunged crime? YES Court Supervision? YES
Classification of Crimes under the INA Aggravated Felony, INA 101(a)(43) Crimes of Domestic Violence Crimes of Child Abuse/Against Children Crimes Involving Moral Turpitude (CIMT) Controlled Substance Offenses Firearm Offenses Money Laundering Alien Smuggling Prostitution and Commercialized Vice 19
Consequences: Deportable vs. Inadmissible vs. Ineligible 20 DEPORTABLE/REMOVABLE INA 237 INADMISSIBLE - INA 212 INELIGIBLE Good Moral Character bars under INA 101(f) Significant Misdemeanors STATUS TERMINATED/REVOKED
REMOVABLE/DEPORTABLE CIMT within 5 years of admission 2 CIMTS Aggravated Felony Failure to Register as Sex Offender Crime of DV/Stalking/Child Abuse/Violation of an Order of Protection Drug Offenses Firearm Offenses
INADMISSIBILITY INA 212 An Admission of guilt can sometimes be enough CIMT and Drug Offenses GREEN Card Holder Returning from a trip abroad can be found to be inadmissible and subject to deportation.
Convictions Affecting Admissibility and GMC: Crimes of Moral Turpitude: Convicted of or admits to essential elements of 1 or more crimes of moral turpitude Drug Offenses: Violated or admits to essential elements of violating any controlled substance law (except simple possession of 30g or less of marijuana) Reason to Believe a Drug Trafficker 2 or more offenses where the aggregate sentence actually imposed was 5 or more years Prostitution and Commercialized Vice Crimes 23
Good Moral Character For naturalization, for example, must be a person of good moral character during the statutory period (3 or 5 years). For Cancellation of Removal for NON-LPR, must be a person of GMC for 10 years The INA does not define a person of good moral character but lays out statutory and regulatory bars to a finding of good moral character in INA 101(f) and 8 CFR 316: Habitual drunkard (chronic alcoholic), Prostitution and commercialized vice Alien Smuggling Criminal convictions (or admissions) and controlled substance traffickers Polygamy Income derived principally from illegal gambling, Given false testimony for purposes of obtaining immigration benefits statement must be intentional and under oath Confined to a penal institution for 180 days or more Convicted of aggravated felony on or after November 29, 1990 Convicted of murder Engaged in persecution No outstanding order of removal 24
COMMON CRIMES AND IMMIGRATION CONSEQUENCES
26 Assessing Immigration Consequences A criminal defense lawyer representing a foreign-born defendant will want to understand how to analyze the criminal statue charged, recognize where there is divisibility, and mold a criminal record to avoid certain phrases and the more serious statutory elements. Mary E. Kramer, Immigration Consequences of Criminal Activity, 6 th Edition (2015)
27 Crimes Against a Person Battery 720 ILCS 5/12-3 Mens Rea - Knowingly 1) Causes Bodily Harm Causes Bodily Harm requires proving physical force satisfying 18 USC 16(a) 2) Makes Physical Contact Minimum conduct does not = "inherently base, vile, or depraved," or that it would "shock the public's conscience." Domestic Violence Misdemeanor vs. Felony
28 Crimes Against Property Theft 720 ILCS 5/16-1(a) Mens Rea: Knowingly Elements: taking and permanently depriving owner of use or benefit Factors affecting consequences: Misdemeanor Felony 1 year sentence imposed (even if suspended) Amount of loss to the victim
29 Crimes Against Person/Property Residential Trespass 720 ILCS 5/19-4 Mens rea: Knowingly/Without Authority Conduct: Enters or remains Criminal Trespass to real property 720 ILCS 5/21-3(a)(3.5) Conduct: presents false documents or falsely represents his or her identity Home Invasion, 720 ILCS 5/12-11 Mens Rea: knowingly Conduct: Enters & uses force or threatens the imminent use of force Intentionally causes any injury Personally discharges a firearm & causes great bodily harm... Element: Deadly Weapon/Firearm
30 Firearm Offenses INA 237 (C) Certain firearm offenses.-any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable. 720 ILCS 5/24-1.5, Reckless Discharge of a Firearm Beware of other crimes where firearm is an essential element of the crime.
Controlled Substance/Drug Crimes POSSESSION OFFENSES Misdemeanor Possession of Cannabis for Personal Use (less than 30 grams), 720 ILCS 550/4(a) Possession of a Controlled Substance 720 ILCS 570 Controlled Substances Crack Cocaine (> 5 grams) or Flunitrazepam Controlled Substance - Cocaine and Heroin Possession of Drug Paraphernalia, 720 ILCS 600/3.5 31 DRUG TRAFFICKING OFFENSES Manufacture, Delivery or Possession with Intent to Deliver Cannabis or Controlled Substance, 720 ILCS 550/5
32 DUI 625 ILCS 5/11-501(a) Nonimmigrant and Arrest 9 FAM 403.11-3(B)(U) DUI Related Arrests CIMT? Simple DUI does not normally involve moral turpitude. Need culpable mental state/mens rea. An aggravated DUI statute which requires the offender to know that he or she is not permitted to drive under any circumstances is a CIMT. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999). (But this may no longer be a CIMT.) DACA/DAPA
33 OTHER CRIMES Violation of an Order of Protection Child Abuse/Child Endangerment Fraud Crimes Element Intent to Defraud Possession of Fraudulent Identification without use Other Traffic Offenses Prostitution Crimes
EXAMPLE Javier is 16 and arrested for possession of 15 grams of marijuana. He tells you that he is undocumented but has DACA.
EXAMPLE #2 Maria is a lawful permanent resident and is arrested for shoplifting. QUESTIONS: When did she become an LPR? Felony or misdemeanor? First offense? Second Offense?
QUESTIONS
Who s Who IP Staff Jasmine McGee, Senior Staff Attorney Contact information jmcgee@immigrationproject.org
Resources Mary Kramer Immigrant Defense Project, http://www.immdefense.org/category/resources-forcriminal-defenders/ National Immigration Project advisories and reference charts, https://www.nationalimmigrationproject.org/charts.h tml Norton Tooby,Free Resources, http://nortontooby.com/resources/free Defending Non-Citizens in Illinois, Indiana, and Wisconsin (2009), https://www.immigrantjustice.org/sites/immigrantjusti ce.org/files/defenders%20manual%20- %20Chapter%203%20FINAL3.pdf
FOR ANY FOREIGN BORN RESIDENT REQUIRING A LEGAL CONSULTATION, CALL MONDAYS AND WEDNESDAYS 10-4. 309-829- 8703.