HOT TOPICS IN IMMIGRATION LAW

CLE Credit: 1.0 Sponsor: KBA Immigration & Nationality Law Section

Friday, June 14, 2019 12:30 – 1:30 p.m.

Carroll-Ford Galt House Hotel

Louisville, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgement pf the induvial legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program in dealing with a specific legal matter have a duty to research the original and current sources of authority.

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TABLE OF CONTENTS

The Presenters ................................................................................................................. i

Crimmigration 101 ........................................................................................................... 1

Immigration Asylum ....................................................................................................... 13

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THE PRESENTERS

Heather A. Hadi 407 North Broadway Lexington, Kentucky 40508 hhadi@heatherhadilaw.com

HEATHER HADI is a native of Lexington, Kentucky and graduated from University of Kentucky with a Bachelors in Communications in 2010. Ms. Hadi went on to graduate from St. Thomas School of Law in 2013, where she was a member of the International Moot Court. Her focus is on serving those in need of assistance with their immigrant status as well as with family law matters. Ms. Hadi is a KPA speaker and KBA speaker, former board member of LASC and current board member of LCR. She is also a member of the American Immigration Lawyers Association. Ms. Hadi has been named Super Lawyers Rising star 2014-2019, Kentucky Monthly Top Lawyers 2018, and Three Best Rated three years in a row.

Duffy B. Trager Russell Immigration Law Firm PLLC

1019 South Fourth St Louisville, Kentucky 40203 dtrager@russellimlaw.com

DUFFY TRAGER is a Partner at the Russell Immigration Law Firm in Louisville, Kentucky. He represents detained and non-detained clients before the Immigration Courts, USCIS, ICE, and various U.S. consulates abroad in a wide variety of immigration cases including asylum, cancellation of removal, naturalization, adjustment of status, Special Immigrant Juvenile Status as well as immigrant and non-immigrant visas. He is a member of the Kentucky Bar Association and the American Immigration Lawyers Association (AILA). Prior to focusing exclusively on immigration law, Mr. Trager practiced criminal defense as a Louisville Metro Public Defender where he received the Walker Award for excellence in advocacy. He has consulted on the immigration consequences of criminal convictions and has presented on this and other immigration topics on Kentucky Tonight on PBS (2018), the Kentucky Association of Criminal Defense Lawyers Annual Conference (2017), the AILA National Conference (2017), and the Public Defender Education Conference (2017).

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Representative Nima Kulkarni Indus Law Firm, PLLC Immigration & International Business Law 659 South Eighth Street Louisville, Kentucky 40203 nima@indus-law.com

NIMA KULKARNI is the founder and managing attorney of Indus Law Firm. Her practice focuses on corporate, employment-based, and family-based immigration law. Representative Kulkarni holds an MBA in Entrepreneurship and a B.A. in English Literature from the University of Louisville. She also holds a Juris Doctor from the Antioch-UDC School of Law. In 2018, Representative Kulkarni was elected as the first Indian State Representative in Kentucky history. She represents the 40th District in Louisville. She is a board member of the Community Foundation of Louisville, Fund for the Arts, and the Indian Professional Council of Kentucky, is a member of the Greater Louisville Outstanding Women (GLOW) and serves as a Country Ambassador for the Greater Louisville International Professionals (GLIP). She is also a member of the Rotary Club of Louisville, serving on the International Service Committee, and a co-founder of the Human Rights Section at the Louisville Bar Association, which was named Section of the Year in 2017. Representative Kulkarni has been awarded the Global Visionary Award from the World Affairs Council and named an Emerging Leader by Greater Louisville Inc. She was also named a Business First 40 under 40 honoree and was a Presentation Academy Tower Award recipient in the category of Government & Law. Ms. Kulkarni has been profiled in several Business First publications, including Business Women First and 20 Lawyers to Know, and has appeared numerous times on KET’s KY Tonight and One to One along with numerous other community forums. Representative Kulkarni is a member of the American Immigration Lawyers Association and has established relationships with legislators on a state and national level through her advocacy work. Representative Kulkarni has also established the New Americans Initiative, a nonprofit dedicated to educating, engaging and building awareness of immigrant and immigration-related issues in our community.

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CRIMMIGRATION 101 Duffy B. Trager1

I. WHAT IS YOUR CLIENT’S STATUS IN THE U.S.?

A. No Lawful Status

1. EWI. 2. Out of status.

B. U.S. Citizen C. LPR D. Refugee/Asylee E. Temporary Visa Holder F. Work Visa vs. EAD Card G. Temporary Protected Status H. DACA

II. WHAT ARE YOUR CLIENT’S REALISTIC GOALS? III. QUESTIONS TO ASK YOUR CLIENT BEFORE SEEKING ADVICE FROM AN

IMMIGRATION ATTORNEY

A. Client’s Entire Criminal History B. What Immigration Status Does Your Client Have? C. If Permanent Resident, How Long Has Your Client been a Permanent

Resident? D. How Long Has Your Client been in the U.S.? E. Has Your Client Entered and Exited the U.S. Previously? F. Does Your Client Have any Family Members with Lawful Status? G. Asylum Claims? Torture/abuse in Home Country?

1 David B. Trager, Partner, Russell Immigration Law Firm PLLC, 1019 South Fourth Street,

Louisville, KY 40203. (502) 587-8431.

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IV. TWO WAYS TO REMOVE NONCITIZENS FROM THE U.S.

A. Inadmissibility under INA §212(a)

Noncitizens who entered without inspection, who were paroled into the U.S., who arrived at border or port of entry, who are applying for visa or adjustment of status, or applying for certain benefits.

B. Deportability under INA §237(a)

1. Noncitizens who were “inspected and admitted.” 2. Example: Lawful Permanent Resident (LPR) or temporary visa

overstay. V. WHAT IS A CONVICTION?

To constitute a conviction pursuant to the Immigration and Nationality Act, there must be a formal adjudication of guilt by a court, or if the adjudication of guilty is withheld where:

• 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;

• The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

(There is a debate about whether or not a referral to treatment constitutes a punishment, penalty, or restraint on liberty.)

VI. IF THERE WAS A PLEA, IT WAS GENERALLY A CONVICTION

A. A Conviction is a Diversion Agreement with Plea of Guilt, Plea of No Contest or Alford Plea (because the Admission of Guilt Still Happened)

B. Does Not Include Deferred Prosecution, Informal Diversion, Deferred

Adjudication C. Vacated Convictions

If a conviction is vacated on Constitutional grounds it is not a conviction. Padilla v. Kentucky2 – counsel must inform client whether a plea carries a risk of deportation. But Padilla is not retroactive per a subsequent Supreme Court case. But you can still use Strickland v. Washington3 to argue the plea was not knowing and voluntary.

2 559 U.S. 356 (2010). 3 466 U.S. 668 (1984).

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VII. WHAT WILL THE IMMIGRATION JUDGE SEE? – RECORD OF CONVICTION/ WHAT TO BRING TO CONSULT – NIJHAWAN V. HOLDER, 557 U.S. 29, 36 (2009)

A. Plea Sheets: Yes

B. Pre-sentence Investigation: Unclear C. Police Report: Maybe D. Order of Conviction: Yes E. Information or Indictment: Yes F. Jury Instructions: Yes G. Mitigation Evidence H. Letter from PO or Documentation of Compliance I. Record of Compliance on HIP J. Letter of Completion of Classes

VIII. CRIMINAL GROUNDS OF INADMISSIBILITY UNDER INA 212(A)(2)

A. Crime Involving Moral Turpitude (CIMT)

Persons who have been convicted of a CIMT or who admit committing CIMT or who admit committing acts that constitute the essential elements of such a crime. INA §212(a)(2)

B. Could This Include a Plea Colloquy or a Sworn Statement in a Diversion

Agreement? C. Controlled Substance Violation D. Two or More Offenses for which Aggregate Sentences of Confinement

were Five Years + E. “Reason to Believe” Drug Trafficker F. Prostitution or Commercialized Vice G. Serious Criminal Activity Who Have Asserted Immunity from Prosecution H. Human Trafficker I. Money Launderer

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IX. EXCEPTION TO INADMISSIBILITY – PETTY OFFENSE AND JUVENILE OFFENSES

A. An alien (whether or not a minor) is not inadmissible for a single CIMT if

the “maximum penalty possible for the crime of which the alien was convicted … did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed). INA §212(a)(2)(A)(ii)(II).

B. Petty offense exception is not applicable if more than one CIMT has been

committed or admitted to. The petty offense exception also does not include controlled substance or other criminal grounds of inadmissibility such as human trafficking.

C. Example – TBUT with a 90-day sentence. D. Certain juvenile convictions are generally excluded from the inadmissibility

grounds. X. WHAT IS A CRIME INVOLVING MORAL TURPITUDE (CIMT)?

A. No Statutory Definition

B. “[R]efers generally to conduct which is inherently base, vile, or depraved, AND contrary to the accepted rules of morality and the duties owed between persons or to society in general…” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994).

C. Traditionally a CIMT involves intent to commit fraud, commit theft with

intent to permanently deprive the owner, or inflict great bodily harm, as well as some reckless or malicious offenses and some offenses with lewd intent.

D. Conviction for an offense that includes as an element the intent to deprive

the rightful owner permanently of his or her property is a CIMT. Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981); Matter of M-, 2 I&N Dec. 686 (BIA 1946).

E. Any crime involving fraud is almost always a CIMT. Jordan v. De George,

341 U.S. 223 (1951). F. Burglary is generally is a CIMT. Matter of Louissaint, 24 I&N Dec. 754 (BIA

2009). XI. COMMON KENTUCKY CRIMES THAT ARE CIMTS

A. Theft by Unlawful Taking B. Criminal Possession of a Forged Instrument

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C. Mens Rea of at Least Recklessness D. Includes Theft or an Intent to Defraud, Intent to Cause Bodily Harm, Most

Sex Offenses, Reckless Crimes that Cause Serious Bodily Harm, and Some Trafficking Offenses

XII. COMMON KENTUCKY CRIMES THAT ARE GENERALLY NOT CIMTS

A. Domestic Violence Assault 4 (But this is based on an unpublished Board of Immigration Appeals decision)

B. Wanton Endangerment 2 – Arguments Both Ways

On the one hand, in In re Fualaau, 21 I&N Dec. 475 (BIA 1996), the Board of Immigration Appeals (hereinafter “BIA” or “the Board”) determined that a simple assault under Hawaii Revised Statute §707-712 (1992) was not a CIMT because the statute could be violated recklessly, which under Hawaii law is defined as consciously disregarding a substantial and unjustifiable risk. The Board reasoned that “[i]n order for an assault of the nature at issue in this case to be deemed a crime involving moral turpitude, the element of a reckless state of mind must be coupled with an offense involving the infliction of serious bodily injury.” In re Fualaau, 21 I&N Dec. at 478. “Wanton” in Kentucky is defined at KRS 501.020 as when one is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exist. This mens rea is substantially similar to the reckless mens rea in In re Fualaau. Wanton Endangerment in the Second Degree (KRS 508.070) does not require the infliction of serious bodily injury. Therefore, it appears under Matter of Fualaau, Wanton Endangerment 2 in Kentucky is not a CIMT. However, the Board also issued two other noteworthy decisions. In Matter of Edgar Leal, Respondent, 26 I&N Dec. 20 (BIA 2012), aff’d, Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014) (recklessly endangering another person with a substantial risk of imminent death under Ariz. Rev. Stat. §13-1201(A) is a CIMT); Matter of O. A. Hernandez, Respondent, 26 I&N Dec. 464 (BIA 2015) (commission of “deadly conduct” under Tex. Penal Code §22.05(a) by recklessly placing another in imminent danger of serious bodily injury is categorically a CIMT.).

C. DUI

DUI 1st offense is not a CIMT, but it will cause a client major problems in regards to bond. There are exceptions to the rule that a DUI 1st offense is not a CIMT. See In re Lopez-Mexa, 22 I&N Dec. 1188 (BIA 1999) (en banc) (aggravated DUI under Ariz. Rev. Stat. occurs where person commits DUI while knowingly driving on a suspended, cancelled or revoked license due to a prior DUI); but see In re Torres-Varela, 23 I&N Dec. 78, 82-86 (BIA 2001) (distinguishing Lopez-Meza because aggravated DUI under a separate provision of Ariz. Rev. Stat. did not require a culpable mental state.)

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D. Simple assault (not on law enforcement, not with a weapon, and no serious physical injury) is generally not a CIMT. Matter of Julio Cesar Ahortalejo-Guzman, Respondent, 25 I&N Dec. 465, 466 (BIA 2011).

E. There are arguments that Harassment with Physical Contact (KRS

525.070) is not a CIMT. A simple assault is generally not a CIMT. Matter of Julio Cesar Ahortalejo-Guzman, Respondent , 25 I&N Dec. 465, 466 (BIA 2011) citing In re Fualaau, 21 I&N Dec. 475, 477 (BIA 1996) & Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989). A domestic battery is also not a CIMT if the offense does not require the actual infliction of physical injury, but merely offensive touching. In re Sejas, 24 I&N Dec. 236 (BIA 2007); see also In re Sanudo, 23 I&N Dec. 968, 970-73 (BIA 2006) (California domestic battery statute did not qualify as a CIMT because it did not require anything more than nonviolent “touching.”). KRS 525.070(1)(e) may be violated by engaging in a course of conduct or repeatedly committing acts which alarm or seriously annoy.

F. In Kentucky, assault on a cop is an Assault 3 (Felony) and likely a CIMT.

The BIA held that aggravated assault against a police officer is a CIMT. Matter of Danesh, 19 I&N Dec. 669 (BIA 1988). However, subsequent courts have distinguished Danesh. For example, the Seventh Circuit has found that aggravated battery of a police officer in Illinois is not a CIMT because the officer does not have to sustain bodily injury. Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. 2008).

XIII. CRIMINAL GROUNDS OF DEPORTABILITY/REMOVAL UNDER INA

§237(A)(2)

A. Aggravated Felonies (“Ag Fels”)

• Murder, drug trafficking, money laundering, crime of violence with one-year sentence, child porn, theft/RSP with one-year sentence.

B. Drug Convictions – Conviction for Possession of Anything in the Federal

Schedules

• Unless 30g or less of marijuana possession. C. CIMT (Crimes Involving Moral Turpitude) within Five Years of Admission D. Two or More CIMTs at any Time E. Firearms Conviction (Some Exceptions/defenses) F. Crime of Domestic Violence – but see discussion of Sessions v. Dimaya,

138 S. Ct. 1204 (2018) below. G. Other Criminal Activity: Espionage, Sabotage, Activities related to National

Security/terrorism

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XIV. AGGRAVATED FELONY

A. INA §101(a)(43) B. A Lawful Permanent Resident (LPR) or other alien is deportable if

convicted of an aggravated felony at any time after admission. C. Doesn’t actually have to be a state felony (see Lopez v. Gonzalez, 549 U.S.

47, 55 n.6 (2006); Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) [conspiracy to distribute marijuana in violation of Maryland law, although a misdemeanor, is a drug trafficking crime aggravated felony under the categorical approach because its elements correspond to the elements of the federal felony of conspiracy to distribute an indeterminate quantity of marijuana under 21 U.S.C. §§841(a)(1) and (b)(1)(D) and 846].

D. Murder, rape, sexual abuse of a minor, drug trafficking, felon in possession

of a handgun, child pornography, deceit where the loss to the victim was over $10,000.

E. Theft, burglary or receipt of stolen property for which the term of

imprisonment imposed is at least one year (regardless of any suspension of such imprisonment or sentence).

1. The Supreme Court in Taylor v. U.S., 495 U.S. 575, 598-99 (1990)

has determined that burglary has the uniform definition of “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” See also Descamps v. U.S., 570 U.S. 254 (2013) [CA burglary statute is categorically not generic burglary because it includes privileged entry]; In re Perez, 22 I & N Dec. 1325 (BIA 2000) [burglary of a vehicle in Texas is not an aggravated felony].

2. Theft – Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) “the

taking of property or exercising control over property, without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if deprivation is less than total or permanent.” See also In re V-Z-S-, 22 I&N Dec. 1338 (BIA 2000).

3. Receipt of stolen property includes “the category of offenses

involving knowing receipt, possession or retention of property from its rightful owner.” In re Bahta, 22 I&N Dec. 1381, 1390 (BIA 2000). The “reason to believe” that the property was stolen is insufficient mens rea for an aggravated felony. Matter of Siegfried Ara Sierra, Respondent, 26 I&N Dec. 288 (BIA 2014). Note that Kentucky’s ROSP statute (KRS 514.110) includes the reason to believe standard.

XV. OTHER AGGRAVATED FELONIES

A. Criminal offenses that are generally aggravated felonies when a sentence of one year or more is imposed (regardless of whether the sentence is

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probated) include: theft, perjury, burglary, bribery of a witness, obstruction of justice, alien smuggling, forgery, counterfeiting.

B. Drug Trafficking Crime 18 U.S.C. §924(c)(2) – the drug sold must be a

controlled substance under federal law or under section 102 of the CSA. Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) [delivery of a simulated controlled substance under Texas law is not an aggravated felony because it is not a controlled substance under the CSA].

C. Illicit trafficking in firearm or destructive devices, offenses related to

laundering of monetary instruments, transporting, possessing or receiving explosives or firearms, arson.

D. RICO offenses – described in 18 U.S.C. §1962 – Watch for KY Organized

Crime Syndicate Statute (Misdemeanor) E. Prostitution and Slavery Offenses F. Fraud/Deceit/Tax Evasion in which the Loss to the Victim Exceeds $10,000 G. Alien Smuggling Offenses – Convicted under 8 U.S.C. §1324(a)(1)(A) or

(a)(2)/INA 274(a)(1)(A) H. Falsely Making, Forging, Counterfeiting, Mutilating or Altering a Passport

or Instrument I. Commercial Bribery, Counterfeiting, Forgery or Trafficking in Vehicles J. Obstruction of Justice, Perjury K. Attempt to Commit an Aggravated Felony is an Aggravated Felony INA

§101(a)(43)(U) L. Probably Not an Aggravated Felony = Assault 4 DV (Again there is an

unpublished case from the Board of Immigration Appeals) XVI. AGGRAVATED FELONY – CRIME OF VIOLENCE

A. Crime of Violence as defined in 18 U.S.C. §16 (not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension) is at least one year. A crime of violence is “any…offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

B. Pretty broad right? The Sixth Circuit in Shuti v. Lynch, 828 F.3d 440 (6th

Cir. 2016), along with some other circuits have held that this provision is unconstitutionally vague. Other circuits have held the reverse.

C. Sessions v. Dimaya, 138 S.Ct. 1204 (2018). The Supreme Court affirmed

the Ninth Circuit finding §16(b) unconstitutionally vague by relying on the

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Supreme Court’s 2015 decision in Johnson v. United States, 135 S.Ct. 2551, in which the Court found the Armed Career Criminal Act’s similarly worded definition of violent felony was void-for-vagueness.

XVII. RELATING TO A CONTROLLED SUBSTANCE UNDER INA §237

A. Possession of marijuana 30 grams or less is not a deportable offense but it is an inadmissibility ground. Possession of any other drug within the federal schedules is relating to a controlled substance.

B. There is an argument that drugs unspecified in Kentucky can help make a

plea safe because the Kentucky controlled substance list has at least two substances which are not on the federal controlled substance schedules. In other words, the Kentucky list is broader than the federal schedules.

XVIII. CATEGORICAL AND MODIFIED CATEGORICAL

A. Categorical

In Taylor v. U.S., 495 U.S. 575, 589-600 (1990), the Supreme Court, in the context of the Armed Career Criminal Act, determined that the courts would look to the generic definition of the convicted offense. If the statute does not meet the generic definition of the crime and is not divisible, no further inquiry is appropriate. Descamps v. U.S., 133 S.Ct 2276 (2013). The court should look at the structure of the statute of conviction and not the underlying circumstances (what the person actually did).

B. Modified Categorical

If the statute is divisible, meaning that it defines multiple offenses with alternative elements, at least one of which comes within the removal ground and one of which does not, then the court could look to certain documents to determine which of the offenses formed the basis of the conviction. Descamps v. U.S., 133 S.Ct. at 2287. A statute is divisible when it sets out multiple, alternative elements, thus defining more than one crime, and at least one, but not all, of the alternatives is a categorical match to the generic standard. Id. An “element” must be proved BARD, but a “means” of violating the statute need not be proven by BARD. If divisible, the Court may examine “the charging document, written plea agreement, transcript of plea colloquy, and any explicit findings by the trial judge to which the defendant assented.” Shepard v. U.S., 544 U.S.13, 16 (2005).

XIX. MINIMUM CONDUCT/HYPOTHETICAL

A. Minimum Conduct

The court looks to nothing more than the least of the acts criminalized (least culpable conduct) and then determines whether those acts are encompassed in the generic federal offense. Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013); Descamps v. U.S. “Because we examine what the state conviction necessarily involved, not the facts underlying the case,

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we must presume that the conviction ‘rested upon [nothing] more than the least of these] acts’ criminalized and then determine whether even those acts are encompassed by the generic federal offense.” Johnson v. U.S., 559 U.S. 133, 137 (2010).

B. Hypothetical Approach and Realistic Probability

In Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the Supreme Court held that a second or subsequent simple possession offense is not an aggravated felony where the state conviction was not based on the finding of a prior conviction. The Court rejected the “hypothetical” approach that would allow an IJ to speculate that a person could have been convicted of recidivist possession when he was neither charged with it or given notice, or an opportunity to respond to the recidivist allegation. Incorporated Rule of Lenity; see also Rashid v. Mukasey, 531 F.3d 438, 448 (6th Cir. 2009); but see Matter of Robert Cuellar-Gomez, Respondent, 25 I&N Dec. 850, 860-66 (BIA 2012) [where respondent entered a plea of guilty to a municipal ordinance of Possession of Marijuana after Previous Conviction and the elements correspond to recidivist possession under the CSA, the Board determined it was an aggravated felony even though the Kansas statute is “not as elaborate as those described in 21 U.S.C. §851 for recidivist possession.”] But see Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2013) where the Supreme Court said

[i]n our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply a statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

C. Mellouli v. Lynch, 135 S.Ct. 1980 (2015) relied on the categorical approach.

XX. POST CONVICTION RELIEF

Can you just eliminate the conviction?

• Immigration will only recognize if conviction was vacated based on a legal defect, not for rehabilitative or humanitarian factors.

• For example – Ineffective assistance of counsel i.e., Failure to warn of immigration consequences.

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XXI. CONCLUSION

This is meant to be general advice, and it is important to confer with an attorney who specializes in immigration law and criminal defense. In many cases the Board of Immigration Appeals and the Sixth Circuit haven’t analyzed Kentucky crimes alongside immigration provisions. Thus, we must look to the case law available for analogy. Your client should weigh that inherent uncertainty alongside the risk of going to trial.

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IMMIGRATION ASYLUM Heather A. Hadi, Esq.

I. WHAT DOES “UNDOCUMENTED” MEAN?

A. Unlawful B. Without Status C. Without "Papers" D. Illegal (We Don't Like Using This Word) E. Entered Without Inspection (EWI)

II. WHAT KIND OF ENTRY INTO U.S.

Two ways to enter:

A. With Inspection (i.e. B2 Visitor Visa, F1 Student Visa, etc...)

B. Without Inspection (i.e. Crossing over Border Without Permission) III. HOW DOES ONE BECOME "UNDOCUMENTED"?

A. Entered with Inspection (Documented) but did not Leave within Required Timeframe

1. Falls "out of status." 2. Leads to being undocumented.

B. Crossed Border Without Permission

C. Example:

Eugenia enters U.S. on a B2 visitor visa on May 1st. She is given two months stay in the U.S. On July 1st she is required to have departed the U.S., but does not do so. She has not requested an extension on her visa. Eugenia continues to reside in the U.S. Eugenia entered legally and with inspection using the B2 visa. However, once she overstayed her visa, she has now fallen out of status and is no longer "documented" or in a legal immigration status.

IV. OPTIONS FOR THE UNDOCUMENTED

A. Once an Individual Becomes Undocumented, Many of the Traditional Avenues of Attaining Immigrant or Nonimmigrant Status are Barred due to Inadmissibility

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B. Undocumented Presence = One Type of Inadmissibility

• Other types of inadmissibility include criminal record, health conditions

including addictions, prior deportations, etc...

V. ASYLUM/CONVENTION AGAINST TORTURE (CAT)

A. Asylum may be Granted to Those Who Can Establish that They are “Refugees”

[A]ny person who is outside any country of such person’s nationality, or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, social group or political opinion.

INA §101(a)(42)(A).

B. May be in Fear due to Past Persecution as this Creates a Presumption that the Applicant has a Well-founded Fear of Future Persecution

C. Asylee vs. Refugee

1. Asylee applies when reaching U.S. soil. 2. Refugee applies while outside of U.S.; not much can be done

through private attorney in U.S.

D. Persecution 1. "Infliction of harm or suffering." Matter of Kasinga, 21 I&N Dec 357,

365 (BIA 1996). 2. No bright line rule for what rises to level of persecution, fact

dependent; however there is a well-established principle that minor beatings and brief detentions do not amount to persecution.

3. Physical harm: rape, severe beating, prolonged imprisonment,

torture, and female genital mutilation. Most common basis for persecution.

4. Psychological harm: PTSD, anxiety, sleep issues, etc. that stem

from physical harm, watching harm come to relatives, believing they are in anticipation of death and other similar types of extreme situations.

5. Other types of harm may be considered, and harm may be

compounded to constitute persecution.

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E. Race, Religion, Nationality

F. Political Opinion

1. Encompasses more than electoral politics or formal political ideology or action. Can be an actual opinion held by applicant or an opinion imputed to him or her by persecutor.

2. Also been held to include exposing corruption. 3. Refusal to participate in population control may also fall within this

category, (i.e. involuntary sterilization).

G. Social Group

1. Defined as a group that is: (1) composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question. Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014), Matter of W-G-R, 26 I&N Dec. 208 (BIA 2014).

2. Must look at the society in question to determine if applicant

qualifies under the social group prong. 3. Examples of recognized social groups: homosexuals, albinos

residing in Africa, young westernized people who have defied traditional Islamic values by marrying without paternal permission, young Albanian women living alone (in terms of human trafficking), Mexican women who are victims of domestic violence etc.

4. Fleeing gang violence does not qualify for asylum. Matter of S-E-G,

24 I&N Dec. 579, 588 (BIA 2008), Matter of E-A-G, 24 I& N Dec. 591 (BIA 2008).

H. Convention Against Torture

1. Offshoot of asylum: U.S. is prohibited from removing applicant to country where they will be tortured. No nexus to a "protected ground" is necessary.

2. Torture defined.

a. "Any act by which severe pain or suffering, whether physical

or mental, is intentionally inflicted on a person [...] for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

b. Does not include lesser forms of cruel, inhuman or

degrading treatment.

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c. Must be specifically intended to inflict severe physical or mental pain/suffering.

d. Requires a government actor.

3. This form of relief has several facets, but fewer benefits. Does not

lead to permanent residency and cannot travel outside of the U.S. Can still be removed to a safe third country if one is found.

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