Immigration Consequences Power Point 10-29-10

: Crash Course in Understanding the Effect of Criminal Charges on your Client’s Immigration Status

People v. Pozo : People v. Pozo 746 P.2d 523 (COLO 1987). 6th Amendment right to effective assistance of counsel may require defense counsel to advise the client of immigration consequences if defense counsel knows that client is not a citizen. Failure to do so, may render any plea involuntary.

Padilla v. Kentucky : Padilla v. Kentucky 130 S.Ct. 1473 (2010) When immigration law is clear regarding the immigration consequences of a criminal conviction, defense counsel must advise client of the immigration consequences. When the law is unclear regarding immigration consequences of a criminal conviction, defense counsel must advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences.

Immigration Categories* Note: Not a complete list : Immigration Categories* Note: Not a complete list Citizens Lawful Permanent residents Undocumented Immigrants Residency Applicants Asylum Seekers Refugees Temporary Protected Status (TPR) NACARA VAWA Applicants (Violence Against Women Act) U or T Visa Recipients

NACARA : On November 19, 1997, President Clinton signed into law the Nicaraguan Adjustment and Central American Relief Act (NACARA). NACARA provides various forms of immigration benefits and relief from deportation to certain Nicaraguans, Cubans, Salvadorans, Guatemalans, nationals of former Soviet bloc countries and their dependents. The Victims of Trafficking and Violence Protection Act of 2000, signed into law on October 28, 2000, added two more categories of individuals eligible to apply for relief from removal under NACARA. Once an individual is granted relief under NACARA they are also granted lawful permanent resident status. NACARA

U Visas, T Visas & VAWA : U Visas, T Visas & VAWA U Visas are available to victims of crimes T Visas are available to victims of human trafficking An aggravated felony is a bar to relief status

Using U/T Visas in Your Practice : Using U/T Visas in Your Practice BRADY anyone? Successful U visa applicants are often eligible to get LPR status after 3 years They can also bring their family members to the United States while they await trial A U visa or T visa recipient can also apply to have prior orders of removal WAIVED. They may also get employment authorization. The visa application has an applicant’s signed declaration which may deal with the facts of your case U visa applications should be subject to discovery since many are signed by your DAs. You can also submit a FOIA request to get them

Slide 8 : Temporary Protected Status (TPS) Certain nations are designated for TPS status usually due to some sort of natural disaster 2 misdemeanors “kicks” you out of TPS status

Slide 9 : Asylum Discretionary form of relief Aggravated Felony per se excludes someone from asylum status Refugee status can be indefinite

Immigration “Authorities” : Immigration “Authorities” Federal Circuit & district courts deciding Immigration law issues Board of Immigration Appeals (BIA) Denver Immigration Court (think county court for immigration) Immigration and Customs Enforcement (ICE) US DOJ Attorney General’s Opinions

Crimes can make an immigrant: : Crimes can make an immigrant: Inadmissible (will not be let back in after leaving country) INA Sec. 212 Deportable (aka removable) INA Section 237 Unable to establish “good moral character” INA Sec. 101(f) Barred from relief status (asylum, etc.) Ineligible to adjust status (get green card)

Where does your client go and how do they get out? : Where does your client go and how do they get out? When your clients are detained by ICE, they are usually sent to the “GEO” facility in Aurora Status of clients can be determined by calling (303) 361-0723 Conviction for many crimes will mean mandatory detention without bond for your clients. These crimes include: Drug crimes Crimes involving moral turpitude Firearms offenses Aggravated felonies for immigration purposes Minimum ICE bond is typically $5000 Persons convicted of aggravated felonies are subject to mandatory detention

Definition of Conviction for Immigration Purposes : Definition of Conviction for Immigration Purposes INA 101(a)(48) A formal judgment of guilt entered by a court Or Withholding of adjudication where Judge or jury finds an alien guilty Alien enters a guilty plea Alien enters a nolo contendre plea Alien admits sufficient facts to warrant a finding of guilt Judge orders some form of punishment, penalty or restraint on liberty NOTE: Deferred judgments are a conviction for immigration purposes

Not a Conviction : Not a Conviction Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) A conviction that has been vacated or set aside based on a flaw in the underlying proceeding is not a conviction HOWEVER a conviction that is vacated solely for immigration purposes is STILL a conviction under immigration law – DO NOT SAY IMMIGRATION ON THE RECORD Pre-trial diversion is not a conviction if no admission of facts sufficient to find guilt (i.e. deferred prosecution) Matter of Islamazar Infractions are not convictions

Juveniles : Juveniles Juvenile adjudication is not a conviction for immigration purposes. (Matter of Devison, 22 I&N Dec. 1362 (BIA 2000)) Juveniles convicted as adults are convictions for immigration purposes Devison and Garcia v. INS, 239 F.3d 409 (1st Cir. 2001).

Sentence Imposed Matters : Sentence Imposed Matters Immigration consequences may vary depending on what sentence is imposed Certain crimes require a one year term of imprisonment to count as aggravated felonies If possible, always try to get less than 6 month jail sentence on a charge that is only punishable by up to 1 year jail Term of imprisonment includes any period of incarceration or confinement ordered, regardless of suspension. INA 101(a)(48(B) Period of confinement ordered regardless of what is actually served Sentence imposed after a probation violation is part of the original sentence for immigration purposes

Grounds for Inadmissibility : Grounds for Inadmissibility Crimes of Moral Turpitude Controlled Substance Violations INA 212(a)(2)(A)(i)(II) 212(h) waiver is available for a single offense of simple possession of 30 grams or less of marijuana, but no other drug crime Multiple Criminal Convictions with Aggregate Sentence of 5 years or more INA 212(a)(2)(B) Note: type of crime does not matter Other criminal activity not requiring a conviction

Crime Involving Moral Turpitude (CIMT) : Crime Involving Moral Turpitude (CIMT) CIMT is defined as conduct that is inherently base, vile, or depraved and contrary to the accepted rules of morality and duties owed between persons or to society in general. INA 237(a)(2)(A)(I): Any alien that is convicted within 5 years of admission of CIMT for which a sentence of one year or longer is imposed is removable INA 237(a)(2(A)(ii): Any alien who is convicted at any time after admission of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct is removable

Record of Conviction : Record of Conviction In order to determine if a crime is a CIMT, an immigration judge may only look at the record of conviction and NOT the underlying facts of the crime. Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006). Matter of Madrigal-Calvo, Int. Dec. 3274 (BIA 1996). The record of conviction includes: Indictment/Complaint Judgment of Conviction (Mittimus) Jury Instructions Signed Guilty Plea Factual admissions made by client at plea or sentencing

Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008). : Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008). Allows judge to look at things other than record of conviction if a judge can’t determine whether crime is CIMT from record of conviction An aberration in long-standing immigration law. AG opinion, not BIA opinion. Has been met with some disapproval. See Jean-Louis v. Holder, 582 F.3d 462 (3d Cir. 2009).

Petty Offense Exception to CIMT : Petty Offense Exception to CIMT Petty offense exception to CIMT where the possible sentence for the crime of which client is convicted is not more than one year AND client was sentenced to no more than 6 months

Other criminal activity that renders someone inadmissible : Other criminal activity that renders someone inadmissible There are other grounds of inadmissibility in INA 212 which relate to criminal activity. These include: Prostitution and commercialized vice Alien smuggling Reason to believe that someone is a drug trafficker Note: does not require a conviction

Crimes rendering a documented person deportable*: : Crimes rendering a documented person deportable*: Almost any drug offense except one-time simple possession of 30g or less of marijuana Aggravated felony – a long list of offenses that have to be neither aggravated, nor felonies Firearm offense Crime involving moral turpitude within 5 years of entry Domestic violence, stalking Child abuse/abandonment/neglect Violating order of protection (civil or criminal finding) *undocumented persons are always deportable unless they can establish grounds for cancellation of removal – very hard to show

Aggravated Felonies : Aggravated Felonies INA 101(a)43 Note: There are 21 subparts to this definition Includes crimes involving firearms Includes offenses that are classified as misdemeanor offenses

Common Forms of Immigration Relief : Common Forms of Immigration Relief Prosecutorial Discretion 212(h) waiver Asylum TPS U or T Visa Cancellation of Removal Violence Against Women Act cancellation Voluntary departure

Cancellation of Removal for LPRs INA 240A(a) : Cancellation of Removal for LPRs INA 240A(a) Have to be LPR for at least 5 years Resided in US 7 years after lawful admission No aggravated felony conviction Discretionary

Cancellation of Removal for non-LPRs (INA 240A(b)(1) : Cancellation of Removal for non-LPRs (INA 240A(b)(1) If client wins, they become LPR Need 10 year of continuous physical presence Need 10 years of good moral character Unusual hardship to united states citizen or lawful permanent resident spouse, parent or child

Good Moral Character : Good Moral Character Federal judge exercises discretion to determine whether your client has GMC Often they look at: Criminal history Tax returns Employment history Driving records Witness statements School records Awards or Certificates of Achievement

Voluntary Departure : Voluntary Departure Voluntary departure permits an individual, who is otherwise removable, to depart from the country at her own expense within a designated amount of time in order to avoid a final order of removal. Before hearing must show: 1. Waives or withdraws all other requests for relief; 2. Concedes removability; 3. Waives appeal of all issues; 4. Has not been convicted of an aggravated felony and is not a security risk; and 5. Shows clear and convincing evidence that he intends and has the financial ability to depart. After hearing must show: 1. Shows physical presence for one year prior to the date the Notice to Appear is issued; 2. Shows clear and convincing evidence that she intends and has the financial ability to depart; 3. Pays a bond (of at least $500) if the Judge so requires; 4. Shows good moral character for five years prior to the application; and 5. Presents to the DHS a valid passport or other travel document sufficient to show lawful entry into her country, unless such document is already in the possession of the DHS or is not needed in order to return to her country.

Re-Entry After Deportation : Re-Entry After Deportation INA § 276 provides that an alien who has been "denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding" and thereafter reenters the United States or is at any time found in the United States, without prior approval by the Attorney General (when such approval is required), can be fined under title 18 of the U.S. Code, imprisoned up to two years, or both. If such reentry follows removal subsequent to a conviction for a felony, other than an aggravated felony, or three or more misdemeanors involving drugs or crimes against persons, or both, it is punishable by a fine under Title 18, imprisonment for up to 10 years, or both. If such reentry follows a conviction for an aggravated felony, the penalty is increased to a fine under Title 18, imprisonment for up to 20 years, or both.

In the Know: Sources of Information : In the Know: Sources of Information FOIA requests Form G-639, Freedom of Information/Privacy Act Request U.S. Citizenship and Immigration Services www.uscis.gov Rocky Mountain Immigrant Advocacy Network www.rmian.org Norton Tooby (the “godfather” of immigration and criminal law confluence) www.criminalandimmigrationlaw.com Catholic Legal Immigration Network Catholic Charities Archdiocese of Denver http://www.ccdenver.org/Services/Immigration-Services.aspx Phone: (303) 742-4971