immigration consequences of criminal convictions · classification of crimes •very difficult to...

Immigration Consequences of Criminal Convictions

Amanda B. Mason

Attorney At Law

Raleigh: 919.250.2000

Wilmington: 910.332.1089

Email: [email protected]

smithdebnamlaw.com

Agenda

•Basic Holdings and Requirements of Padilla v. Kentucky•Proper Identification of Clients•Basic Immigration Consequences•Immigration Language in the Criminal Context•Classification of Crimes•Plea Options

Padilla v. Kentucky, 130 S.C. 1473 (2010)

•Jose Padilla was a long-time Lawful Permanent Resident of the United States.

•Pled guilty to drug distribution charges, and thereafter became subject to removal.

•Defense counsel advised him he “did not have to worry about immigration status since he had been in the country so long.”

•Insisted he would have gone to trial but for this incorrect advice of counsel.


•The Court disagreed with the Kentucky Supreme Court, and held that “constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.”

•Held that Mr. Padilla had satisfied the first prong of the Strickland test, in that his representation fell below the “objective standard of reasonableness.”

•Court did not decide the second Strickland prong regarding prejudice.


Key Points:•Deportation is a “particularly severe penalty” and “intimately related” to the criminal process.•The Court rejects the collateral-versus-direct distinction as it relates to immigration.•Affirmative, correct advice is required by defense counsel –silence is insufficient. The Court makes no distinction between affirmative mis-advice and silence.•The Court endorses “informed consideration” regarding deportation consequences by both prosecutors and defendants during plea-bargain process.

Being Effective Under Padilla

1. Properly identify your client’s status;2. Consider immigration consequences to the charges and

possible plea agreements, as well as the impact of sentencing;

3. Advise of “clear” consequences;4. When consequences are unclear, advise of the possibility of

immigration issues;5. Either refer the client to an immigration attorney or consult

with one directly during the course of the case.

Side Benefits of Padilla

•Case includes language and a recitation of U.S. immigration history that may be useful to encourage judges to exercise discretion, when it is permitted, in the criminal process:

– Sentencing for immigration crimes?– Post-conviction relief?

•Although the case does not speak to immigration consequences other than removal, the same logic may be applied to considering other issues, such as whether an immigrant can naturalize or ever leave the country safely following a conviction.

Retroactive?Courts are not clear on whether to apply Padilla retroactively:

•Arguments courts have used “for” retroactive application: –Padilla is merely applying the settled Strickland standard to this fact pattern;–The opinion considered the “floodgates” argument regarding post-conviction litigation and rejected it, a discussion that would be moot but for retroactive intent.

•Arguments used “against:” –Padilla is a new rule of criminal procedure, not substantive law, and is not applying settled law to new facts;–Nor is it a “watershed” decision of procedure.

Proper Identification of Clients

•Determine a client’s “status”

•Don’t rely upon your gut – ethnicity, race, religion, language, accent (or lack thereof), can be misleading.

•The correct question is “were you born outside of the United States?” (NOT “are you a U.S. citizen”)


•What is “status?” –Clients themselves may not know, so asking the important questions can help you or the immigration consultant determine.–Often used interchangeably with “visa,” but slightly different.–Status means: the basis of a person’s presence in the U.S.

•Out of status versus “EWI”•Immigration Attorneys may ask whether the person “has status”


•What is “status?” CONTINUED –Basics: Immigrant versus nonimmigrant status

•Employment based•Family based•Visitors•Students•Several others

–Work authorization (not always included)–Current or expired–Derivative or primary

Proper Identification of Clients•To reiterate: “Were you born outside of the United States?”•Did you ask for permission when you entered?•Where did you enter? By what means? (plane, train, car, bus, walking, etc.)•Did you have to go through customs? What happened? Did you show papers?•If you had a visa, has it expired?•Do you have any other immigration paperwork? (passports, I-94 cards, “green card,” work permit)


•Have you ever filed anything with immigration?•Have you ever been deported or in removal/deportation proceedings? •Were you ever stopped at a border or port of entry? If yes, what happened?•Have you ever had to go to Immigration Court?•Have you ever been arrested or interrogated by Immigration?PRACTICE POINTER: If the client is already in removal proceedings, or on hold by ICE, ask to see their Notice to Appear (NTA).


Just in case you don’t know, it’s not the INS anymore:

•USCIS – U.S. Citizenship & Immigration Services (Benefits)

•USICE - U.S. Immigration & Customs Enforcement (Removal)

•USCBP – U.S. Customs & Border Protection (Ports of Entry; Border Patrol)


Admissions Process – If Lawfully Present, How’d Your Client Get Here?

Obtain Passport

(Foreign Govt)

Obtain Notice of Approval (if reqd)

(USCIS)

Use Passport & NOA to Obtain Visa

(if reqd)

(DOS - Consulate)

Use Passport, Visa & NOA to Obtain

I-94 at POE

(CBP)

Repeat as Needed!

-- Extensions

-- Travel Approval

Basic Immigration ConsequencesThe “D” WordAlthough deportation is the obvious concern, it is not the only concern. Additionally, several aspects of deportation can be affected.

–Mandatory (“Automatic”) Deportation–Defenses to Deportation–Waiver cases–Detention during the deportation case (release on recognizance, setting of low or high bond amounts, mandatory detention)

Basic Immigration ConsequencesConsequences Outside of Deportation Proceedings:

•Bar to obtaining lawful immigration status;

•Bars to naturalization–Good moral character–Permanent bar to naturalization

•Inability to return to the U.S.–Following travel–Following removal

So Which Crimes are Clearly Removable?

•It’s not clear. “Automatic” deportation a misnomer. •Padilla Court states that “virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense…”•Even this isn’t completely accurate.

•Some crimes are more clear than others.

Immigration Language in the Criminal Context

Inadmissibility versus Deportability•Inadmissibility:

–Applies to non-U.S. citizens attempting to be admitted or re-admitted to the US–Generally applies to non-LPRs (Lawful Permanent Residents) or LPRs that have traveled outside the U.S.

•Deportability:–Applies to non-U.S. citizens lawfully admitted into the U.S.–LPRs already in the U.S. generally are subject to these grounds of deportability (but not always)


Inadmissibility versus Deportability•The concept is important because different grounds for removal and relief from removal can apply depending upon status.•The concept has very little to do with where the person is, geographically speaking. (Do not confuse with presence in the U.S.)•Criminal Grounds for Removal:

–Inadmissibility: 8 U.S.C. § 1182(a)(2) [INA § 212(a)(2)]–Deportability: 8 U.S.C. § 1227(a)(2) [INA § 237(a)(2)]


Conviction

Defined by 8 U.S.C. § 1101(a)(48)(A) [INA § 101(a)(48)](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.”


Conviction, cont’d•Found guilty at trial•Guilty or nolo contendere plea•Deferred adjudications if an adjudication of guilt•Diversions without formal adjudication of guilt if:

–Sufficient facts admitted and–Restraint on liberty (probation, community service)

•Expunged convictions


SentenceDefined by 8 U.S.C. § 1101(a)(48)(A) [INA § 101(a)(48)](B) “… the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”

Record of ConvictionIncludes the charging document, plea agreement, plea colloquy transcript, judgment, and docket entries.•Does not include police reports.•Helpful to the Immigration Court when deciding how to classify an offense, judge usually not permitted to review anything other than the Record of Conviction.

Classification of Crimes

•Very difficult to lump all crimes into neat categories.

•Generally one must review the actual statute and its elements.–Particularly useful with Crimes Involving Moral Turpitude, as defined in immigration, but important for each crime.

•Be careful not to make determinations based upon just imprisonment terms, misdemeanors versus felonies, or any other seemingly obvious categories.

Classification of CrimesCrimes Involving Moral Turpitude

•Not well-defined, but referenced under both grounds of inadmissibility and deportability.•Highly difficult to classify, multiple approaches. Research whenever possible.•Consequences:

–Inadmissible (includes adjustment of status), sometimes even if the client only admitted the essential elements, unless a “petty offense.”

•Petty offense exception: one CIMT if maximum penalty does not exceed one year, and actual sentence of imprisonment not more than six months.•Waiver possibilities to save the day?

Classification of CrimesCrimes Involving Moral Turpitude

•Consequences, cont’d:–Deportable/Removable if conviction within five years of the date of admission AND if the crime carries a sentence for which one year or longer may be imposed. (Do NOT depart the U.S. – attempted re-entry triggers the harsher inadmissibility standard). –Multiple CIMTs: two or more offenses after admission not arising out of a single scheme of criminal misconduct, regardless of confinement authorization.–Mandatory Detention for inadmissibility, possible for deportability.

Classification of CrimesAggravated Felony

•Also very difficult to define. § 1101(a)(43)(A)-(U) [INA §101(a)(43)(A)-(U)]•Statute operates as a long, ever-expanding list of crimes, many with side-references to other statutes for definitions.•NOT a ground of inadmissibility, and should not bar adjustment or a visa. But often will fall into an additional category to deny these items, or can lead to discretionary denial.•Is a ground for removal from the United States. Date of admission not relevant.


Aggravated FelonyWatch Out! It is possible for state misdemeanors and other seemingly low-level crimes to be aggravated felonies. State crimes that meet the conduct definition and are punishable by greater than one year in prison are likely to be considered Ag. Fel.• Crimes of violence• Theft offensesAlso beware of conspiracy or attempts for any enumerated aggravated felonies. § 1101(a)(43)(U) [INA § 101(a)(43)(U)]


Controlled Substance Offenses•May qualify as Ag Fel, CIMT, or both, but is also covered as its own crime. •“Controlled Substance” as defined by section 102 of the Controlled Substance Act (21 USC § 802).•Inadmissibility: An individual who has been convicted of or admits to having committed a violation of is inadmissible.

–Also a person can be denied admission or permanent resident status if there is “reason to believe” that they have been involved with trafficking in controlled substances.


Controlled Substance Offenses•Deportability: removable if a final conviction.•Solicitation qualifies as a controlled substance.•Exception to removability for 1 count of simple marijuana possession involving 30 grams or less.•Drug Paraphernalia is not clearly a controlled substance offense. In sum: there is exceedingly low tolerance for even minor controlled substance offenses. Handle with care.


DOMESTIC VIOLENCE•Deportability: Under INA § 237(a)(2)(E), conviction any time after admission for crimes of domestic violence, stalking, child abuse, child neglect, or child abandonment will render the foreign national deportable.•“Crime of Domestic Violence” applies the federal definition of “crime of violence” at 18 USC § 16.

–Negligent or reckless conduct probably should not be included.–For divisible statutes, the least culpable conduct will apply.–Simple assaults and battery statutes often do not meet the federal definition of “crimes of violence”

Classification of CrimesDOMESTIC VIOLENCE

•Victim, defined: –current/former spouses; –person with whom the individual has a child; –a person with whom the individual has cohabited or is currently cohabiting; –Person similarly situated to a spouse, as defined by the domestic/family violence laws of the jurisdiction where offense occurred;–Catch-all: Any other person protected by any domestic violence laws of the U.S., any state, Indian government, or local government.

•Violations of Protective Orders: deportable. Note the lower standard.


DOMESTIC VIOLENCE

•DV as Crimes Involving Moral Turpitude?–Generally, if no bodily injury and the conviction is for a simple assault or battery, could arguably fall outside of the CIMT province. –However, if bodily injury exists against the spouse, child, or cohabitant, many courts hold that it is clearly a CIMT.–This is an issue in a state of flux. Each case requires research.


Other Crimes•Firearms offenses: any violation after admission renders deportable. Not a basis for inadmissibility.

–Non-elemental offense: May an IJ consider the use of a firearm in another crime to be a firearms offense?

•Money Laundering: –If $10,000 or more, Ag. Fel. –Because of “PATRIOT” ACT, is now also a ground of inadmissibility.

Classification of CrimesImmigration Crimes

•Alien Smuggling: 8 USC § 1324 [ INA § 274]: grounds of deportability and inadmissibility. Also listed as an aggravated felony.

–Aggravated felony exception if the person was a parent, child, or spouse.

•Failure to Register: all non-citizens 14 or over must be registered and fingerprinted if remaining in the U.S. 30 days or longer.

–Great reason to Naturalize as soon as permissible.


Immigration Crimes•Passport/Visa Fraud: deportable. May involve moral turpitude. If the term of imprisonment is 12 months or longer, it is also an ag. felony.

•Improper Entry: 8 USC § 1325 [INA § 275]

•Re-Entry of Removed Alien: 8 USC § 1326 [INA § 276]

•Harboring: 8 USC § 1324 [INA § 274]: employers beware!

Plea Options•After properly identifying client status, and analyzing immigration consequences, you are empowered to evaluate your client’s wishes during the plea process.•Pretrial diversion programs to avoid conviction:

– Okay if not involving admissions to the crime. (Remember admission PLUS restraint on liberty)

•First Offender/Deferral Programs: because a plea is entered before the court with some restraint of liberty, e.g. successful probationary period or community service, this is still a conviction (except Ninth Circuit).•Federal First Offender Act - 18 USC § 3607: not removable in the Ninth Circuit, not clear elsewhere.

Plea Options

•Petty Offense pleas: helpful if one crime only;– Maximum sentence does not exceed one year,– Actual sentence not in excess of six months.

•Juvenile Court: juvenile delinquency adjudications okay, but “youthful offender” schemes for sentencing only will still be considered convicted for immigration law.

•Keep it to one count: especially if distinct offenses.

Plea Options

Sentencing of Aggravated Felonies•When one year mark counts:

– Crime of violence;– Theft or burglary offenses;– Racketeering, transmission of wagering information, illegal

gambling;– Bribery, counterfeiting, forgery, trafficking in vehicles with

altered identification numbers•Other offenses are marked by different terms of imprisonment.

Plea Options•To avoid crimes of violence, try to plead to a non-specific intent crime.

•For fraud crimes, try to specify the amount at less than $10,000.

•Sometimes a marijuana possession conviction is preferable to paraphernalia.

•Conceding and consenting to removal in exchange for time-served: be careful to advise client that there is no way to know how long he or she will linger in ICE detention pending removal.

Concluding Thoughts

•There is no good guidance on what would be considered obviously a removable offense;

•When in doubt, research the issue carefully or contact an immigration attorney to protect yourself;

•Make your client choose what he or she wants most, and document your file about your immigration conversations.

immigration consequences of criminal convictions · classification of crimes •very difficult to...

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