The NTA: Notice to Appear Kerry Bretz Bretz & Coven

These materials were originally submitted in conjunction with the program The Basics of Removal Defense held on June 12, 2017. The NTA: Notice to Appear Kerry Bretz Bretz & Coven

These materials were originally submitted in conjunction with the program The Basics of Removal Defense held on June 12, 2017. The NTA What to Look For 1. The NTA is the first thing to look at when reviewing a file for deportation defense or a first master hearing. It should establish a prima facie case of inadmissibility or deportability. 2. An NTA is typically required to be given in-person, unless the method of personal service is found to be impractical, in which case it can also be served by mail. 3. An NTA will include the person s name, A number, address & telephone number. 4. Additionally, an NTA will include the following: - Nature of the proceedings - Legal authority for the proceedings - Acts or conduct alleged to be in violation of law - The charges against the respondent and the statutory provision alleged to have been violated - Notification of the respondent s right to be represented by legal counsel - Notification that the respondent must immediately provide the Attorney General with a written address and phone number - Notification that an in-absentia order will be entered for failure to appear unless there are exceptional circumstances

LEGAL CHALLENGES TO THE NTA 1)The NTA was improvidently issued. This particular challenge is fairly broad and often based on a grammatical mistake or some sort of misinformation. For example, if the DHS writes that the person is an AA as opposed to an admitted alien there are basically then grounds for termination based upon a defect in the NTA. But usually, if dismissed, it is WITHOUT prejudice and the DHS often proceeds to correct it later.

LEGAL CHALLENGES TO THE NTA (CONTINUED) 2) The NTA is not sufficient on its face. - May be dismissed even where an order of deportation has been entered. - Notice of charge is insufficient (the allegations, even if true, do not support a ground of removal. - Claim to citizenship (don t concede alienage). - Improper charge (deportable when inadmissible).

LEGAL CHALLENGES TO THE NTA (CONTINUED) 3) Not issued by proper authorities. - Issuing an NTA and signing an NTA are two different concepts; an officer not authorized to issue an NTA may sign it so long as he/she were authorized by the appropriate official who then ultimately signed the document that was submitted to the immigration court. - 8 C.F.R. 239.1 provides a list of those authorized to issue NTA s. Said list includes, but is limited to Dist. Directors, Deputy Directors, Chief Patrol agents, Assistant Patrol Agents, Patrol Agents in Charge, Assistant Patrol Agents In Charge, CIS Directors the list goes on and makes reference to an even broader authority to delegate at 8 C.F.R. 2.1. - Not included as proper authority are ICE attorneys, Chief Counsel & etc.

LEGAL CHALLENGES TO THE NTA (CONTINUED) 4. Significance of date and address - Can cut off time for certain forms of relief i.e. cancellation of removal - Service on alien with 10 years triggers stop-time rule. See INA 240 A(d)(1) - Look at the date the NTA was served (See Matter of Ordaz) - But see Matter of Orozco-Velasquez, 2016 U.S. App LEXIS 4569 which says that all information required by 8 USC 1229(a) must b included in the NTA served to the alien in order to trigger the stop time rule. (There, Mr. Orozco-Velasquez was issued an NTA that did not specify time/date/location of the proceeding and so it did not trigger the stop time rule. He was therefore eligible for cancellation of removal). 5. Incorrect address - Argument for lack of notice 6. If any challenges are not addressed, they are deemed waived.

BURDENS OF PROOF 1. Alienage - DHS must first establish alienage by providing sufficient evidence in the record 8 CFR 1240.8 - Alienage cannot be established alienage by simply putting respondent on the witness stand. - Respondent can remain silent (without invoking the 5th Amendment). - IJ can draw a negative inference from the silence, but that by itself is not enough to establish deport ability 2. Once alienage is established, respondent has burden to prove time, place and manner of entry.

BURDENS OF PROOF (CONTINUED) 3. Arriving Aliens (Inadmissibility) - Non-LPR S seeking admission must establish that he or she is clearly and beyond a doubt not inadmissible under section 212. - LPR s: DHS has the burden of proving inadmissibility by clear, unequivocal and convincing evidence. See Singh v. Mukasey, 553 F.3d 207 (2d Cir. 2009). - Once a colorable claim to LPR status is made, DHS has the burden to prove by clear, unequivocal and convincing evidence that LPR status has changed or been abandoned. See Matadin v. Mukasey, 546 F.3d 85 (2d. 2008). - DHS also has the burden to prove that an LPR is an applicant for admission and therefore subject to inadmissibility. See Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). Often that is the same as proving the inadmissibility. - LPR cannot be regarded as AA and may not be charged with inadmissibility, if he does not fall within any of the exceptions listed at 101(a)(13) of the Act. See Matter of Pena, I&N Dec. 613 (BIA 2015). - LPR cannot be charged as AA solely because of claim that he/she obtained status through fraud. 4. If DHS does incorrectly charge an LPR as an AA, move to terminate.

BURDENS OF PROOF (CONTINUED) 5. Admitted (Deportability) DHS is required to prove deportability by clear, unequivocal and convincing evidence (Woodby v. INS, 385 U.S. 276 (1966), Nijhawan v. Holder, 557 U.S. 29 (2009). DHS must first establish alienage. 6. Present without being admitted (EWI) Under IIRIRA the burden of proof is altered for persons who are charged with EWI. 8 CFR 1240.8 If alienage is established, the respondent must establish by clear and convincing evidence that he is lawfully present in the U.S. pursuant to prior admission.

BURDENS OF PROOF (CONTINUED) 7. Claims of citizenship Once DHS establishes that respondent was born abroad, respondent then bears the burden of proving citizenship by derivation or acquisition by a preponderance of the evidence. 8. Termination Without Prejudice IJs favor this technique. Without Prejudice means DHS can file a new NTA. Civil standard for termination with prejudice is whether there is a case in controversy or moot. Considering pleading and denying removability before moving to terminate. (res judicata).

Common Criminal Grounds of Removability 1. Criminal Grounds - In this new world of deportation defense, lawyers cannot concede anything. You can admit factual allegations but should not concede a criminal ground of removability (like a CIMT or AF). - The facts DO NOT matter anymore. Look at the language of the statute. 2. Categorical Approach - Minimum conduct test: What are the least acts criminalized under the criminal statute of conviction (Moncrieffe v. Holder). This also applies to whether or not the crime is a CIMT (See Silva Trevino III). - Determine whether the minimum conduct falls completely within the definition of the GENERIC crime referenced under federal law

Common Criminal Grounds of Removability (CONTINUED) 3. Modified Categorical Approach - Applies to divisible statutes. - DHS burden to prove that statute is divisible. - It is divisible if the statute contains alternative elements to commit the crime - If divisible, we look to the facts ONLY to determine which subsection of the statute the respondent was convicted. - Once you determine which subsection applies, you use the categorical approach.

Common Criminal Grounds of Removability (CONTINUED) 4. CRIME INVOLVING MORAL TURPITUDE (CIMT) - No precise definition - Depraved, immoral, or reprehensible conduct - Typically requires a degree of scienter coupled with reprehensible conduct - Examples: sex crimes, theft offenses, fraud offenses, violent offenses - Not all CIMT s make a person deportable or inadmissible Deportable: 1 CIMT committed (NOT THE DATE OF THE PLEA OR SENTENCE) within 5 years of admission for which you can be sentenced to a year or more 2 CIMT s committed at any time after admission Inadmissible: any CIMT committed at any time, unless max sentence cannot be more than a year and the person did not serve more than 180 days (petty offense exception)

Common Criminal Grounds of Removability (CONTINUED) 5. HOT CIMT ISSUE: Whether OR not NYPL 155.25 Petit Larceny is a CIMT? The issue is whether or not it is categorically not a CIMT because you can be convicted of it without having the intention to permanently deprive the owner of the property. For many years, the BIA took the position that it was not a CIMT but in 2016 the BIA departed from that holding. See Matter of Obeya, 26 I&N Dec. 856 (BIA 2016) which says that NYPL 155.25 is categorically a CIMT The issue is now pending in the Second Circuit CONTEST all charges of CIMT where CIMT is charged for petit larceny

CONTROLLED SUBSTANCE OFFENSES 1. All controlled substance offenses (CSO) are deportable. Exception: one conviction for simple possession of marijuana of 30 grams or less. In NY, Unlawful Possession of Marijuana and CPM 5th are both CSO for inadmissibility purposes; However for deportability purposes, is a CSO only if record of conviction establishes possession of more than 30 grams of marijuana. Exception doesn t apply for multiple CSO or marijuana offenses. Not an exception for admissibility 2. CSO is also an AF if: Sale Possession with intent to distribute Some movement of the controlled substance Attempt and conspiracy to do so Exception, misdemeanor sale of marijuana in NY (Martinez v Mukasey). 3. POSSESSION ONLY RULE NYPL 220.16(1) (E Felony) criminal possession with intent sentenced to 5 years probation NYPL 220.21 CPCS 1st degree (A Felony) with 8 years jail time. Which one is an AF?

AGGRAVATED FELONIES (INA 101(a)(43)) 1. One conviction can be a CIMT, CSO and an AF - all at the same time. 2. AF first introduced in 1988 and included only Murder and Drug Trafficking, amended many time now to include 20 different sub-sections. Some name specific crimes Some are generic Some require a specific sentence Some require a certain dollar amount as a loss Includes attempts and conspiracies 3. It is the generic crimes that are often being challenged as being deportable using the categorical approach.

MY FAVORITE AGGRAVATED FELONIES 1. Crimes of Violence (COV) with a sentence of 1 year or longer. INA 101(a)(43)(F). It doesn t matter how much time one serves but the sentence. You can defeat this with a sentence of 364 days. In NY, people often get a year and then serve only 8 months. That would still be a sentence of 1 year or longer and satisfy the definition. 2. COV based upon Negligent conduct Negligent conduct is not an AF COV and most likely not a CIMT either. Criminally negligent homicide is not a COV.

MY FAVORITE AGGRAVATED FELONIES (CONTINUED) 3. COV based upon Reckless conduct. In Jobson v Ashcroft (2003), the Second Circuit, using the Categorical Approach, held that an unintentional accident caused by RECKLESS CONDUCT cannot properly be said to involve a substantial risk that a defendant will use physical force. Using the categorical approach, the court compared the federal definition of crime of violence, which is found at 18 USC 16(b), with NYPL 125.15(1) Manslaughter 2nd Degree. The minimum conduct does not present a substantial risk that physical force against the person of another may be used and an unintentional accident caused by recklessness cannot be a crime of violence under 16(b). However, it isn t so clear anymore because of subsequent cases from the BIA and the Supreme Court that leave open the question of whether reckless conduct could meet the definition of 16(b). Therefore, you should try for alternative pleas such as negligent homicide.

MY FAVORITE AGGRAVATED FELONIES (CONTINUED) 4. Money Laundering INA 101(a)(43)(D) AF if a conviction under 18 USC 1956 if the amount exceeds 10k. Consider a conviction for financial structuring instead. BIA Matter of L-V-C. is still good law everywhere except maybe the Third Circuit. Where there is an unpublished case to the contrary. In L-V-C, the applicant was convicted of 18 U.S.C. 5324(1) and (3) (1988), for causing a financial institution to fail to file currency transaction reports and structuring currency transactions to evade reporting requirements. Likewise, carrying more than 10k out of the US and forgetting to file a Customs Declaration. Financial structuring is not a CIMT.

SOME OTHER FAVORITES (NOT AGGRAVATED FELONIES) 1.Misprision of a Felony Whoever, having knowledge of the actual commission of a felony, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both. Probably a close cousin to accessory after the fact. Comes up sometimes when a spouse may have had knowledge of husband s drug trafficking. Good alternative to Federal Drug Trafficking for a low level actor. BIA always held it is a CIMT but not a CSO. Matter of Robles (BIA decision finding it was a CIMT). In 2012, the Ninth Circuit reversed. In 2015, the issue was in front of the Second Circuit, who then remanded it to the BIA so that they can issue a precedent decision- Lugo v. Holder. Briefs were submitted 03/2017. And Amicus briefs submitted too.

SOME OTHER FAVORITES (NOT AGGRAVATED FELONIES) 2. Endangering the Welfare of a Minor NYPL 260.10 May be charged in various scenarios; Neglecting a child Leaving a child unattended, and Consensual sex with minors. ICE used to charge these cases as AFs as sex abuse of a minor. Although not 100% clear, it will be a Crime of Child Abuse, but not AF as sex abuse of a minor. (Matter of Mendoza-Orasrio 2016)

SOME OTHER FAVORITES (NOT AGGRAVATED FELONIES) 3. DUI, DWAI VTL, Not deportable Not Inadmissible Affects GMC for Natz If otherwise deportable, moves non-citizen to an enforcement priority Leanders Law, DUI with a 15 year old or younger in the car, Not tested yet in the courts but probably not deportable. 4. Corporate Plea Not Deportable (no cases on it, bc ICE has ever charged it) Often comes up in unsafe work environments and Tax fraud