WARNING: The information contained in this presentation is the author’s interpretations and does not necessarily represent the position of the Department of Homeland Security. Inasmuch as immigration laws are complex, fact-specific, and ever-changing, practitioners are advised to research and apply the most current laws, regulations, and policies relevant to this subject matter.

Department of Homeland Security Office of the Chief Counsel The Immigration Process and Consequences of Criminal Convictions Justin Howard, Assistant Chief Counsel 2

Office of the Principal Legal Advisor (OPLA)  OPLA provides the legal advice, training, and services required to support the ICE mission while defending the immigration laws of the United States in administrative and Federal Courts  The Chicago Office of the Chief Counsel, along with its sub- office in Kansas City, Missouri, oversees immigration and customs-related litigation in Illinois, Indiana, Kentucky, Missouri, Kansas, and Wisconsin  Provides legal advice to ICE officers and agents  Litigates cases before the immigration court and handles appeals to the Board of Immigration Appeals 3

4 Department of Homeland Security  United States Citizenship and Immigration Services (USCIS )  Provides immigration benefits: visas, green cards, naturalization  Customs and Border Protection  Secures the border, facilitates trade and travel  Immigration and Customs Enforcement (ICE)  Protects the security of the American people and the homeland by vigilantly enforcing the nation’s immigration and customs laws  Litigates cases before the immigration courts

Enforcement and Removal Operations Homeland Security Investigations 5 ICE Components

Top ICE Initiatives  Enforcement and Removal  Child Exploitation  Human Smuggling and Trafficking  Human Rights Violators & War Crimes 6

Top ICE Initiatives, Cont’d  Counterterrorism and Criminal Exploitation  Operation Community Shield (Transnational Gangs)  Fugitive Operations  Criminal Alien Program  Cultural Property, Art, and Antiquities Investigations  Intellectual Property Rights  Cybercrimes  Mass-Marketing Fraud  Foreign Corruption Investigations  Document and Benefit Fraud  Money Laundering and Bulk Cash Smuggling 7

Administrative vs. Criminal  Differentiate between civil administrative proceedings and criminal cases  ICE handles both  Administrative cases are processed through ICE or DOJ in Immigration Court  Criminal cases are prosecuted in State and Federal courts 8

9 Kansas City Immigration Court  Kansas City Immigration Court opened September 29, 2008  Hears cases involving non-detained individuals as well as individuals detained in ICE custody in Kansas City, Springfield, St. Louis, and Wichita

10 ICE Offices in Kansas and Missouri  Wichita, KS  Kansas City, MO  Springfield, MO  St. Louis, MO

ICE EOIR Removal Proceedings Process DHS Initiates Action Master Calendar Hearing Individual Merits Hearing Immigration Judge Decision Notice to Appear In Court Immigration Judge Decision Relief DHS, Alien or Both Appeal to BIA Alien Appeal to Federal Court Termination of Proceedings Removal / Deportation Voluntary Departure Failure to Depart Removal / Deportation 11

12 Immigration 101  Removal proceedings begin with the service of a Notice to Appear (“NTA”) on an alien by:  An Immigration Enforcement Agent (“IEA”)  Special Agent with Homeland Security Investigations (“HSI”);  Customs and Border Patrol (“CBP”)  United States Citizenship and Immigration Services (“USCIS”)  The NTA is then filed with the Immigration Court

13 Immigration 101  The NTA sets forth the reasons why the alien is removable from the United States  Immigration proceedings are civil in nature. The alien has a right to an attorney, but he has to obtain one at his own expense. No attorneys are appointed to represent aliens in Immigration proceedings, even if they are detained

14 Immigration 101  DHS or the alien can appeal a decision of an Immigration Judge  The appeal goes to the Board of Immigration Appeals in Falls Church, VA  If a party disagrees with the Board’s decision, they may file a Petition for Review in the Federal Circuit Court of Appeals that has jurisdiction over the Immigration Court

15 What is an alien?  An alien, generally speaking, is anyone who is not a citizen of the U.S.  There are 3 categories of aliens:  Aliens who are Lawful Permanent Residents (green card holders);  Who were admitted to the U.S. as non-immigrants (students, temporary visitors, or workers); or  Aliens who have entered without being inspected or admitted

16 Types of Status  Every review of a charge begins with the question: how did the alien get here?  The answer to this question determines what section of the Immigration and Nationality Act is used to charge the alien  EWI – Enter Without Inspection;  This is the person that crosses the border illegally  Least amount of protections available  If charged with an aggravated felony, he/she is administratively removed without going through the court process

17 Types of Status  Admitted  F1 visa – student  B2 visa – vacationing visitor (usually 6 months)  H1/H2 visa – temporary workers  J1/J2 – graduate assistants and other types of educational type scholars  SAW – seasonal agricultural workers  F1, B2, H1/2 – Can be removed administratively without going before the Court if alien commits an aggravated felony

18 Types of Status  LPR – legal permanent resident  Has a “green card,” I-551  Right to be in the U.S.  ALWAYS entitled to a proceeding in immigration court

19 Why does the alien’s status matter?  The alien’s status matters because it determines what relief from removal is available and what grounds of removability apply to the alien  Also determines which party has the burden of proof  EWIs – Immigration charges are found in INA § 212 (8 USC § 1182); Inadmissible Aliens  Admitted (including LPRs) – Immigration charges are found in INA § 237 (8 USC § 1227); Deportable aliens

20 Why does the alien’s status matter?  Illegal  Any contact can lead to removal  Admitted  Removability depends upon the crime or, in some cases, a violation of the terms of the alien’s admission  Rationale – invitation vs. trespass

21 Removable?  The alien must either be an EWI, violate the terms of the status in which he/she was admitted, and/or have been convicted of a qualifying criminal offense  Not all convictions render an alien removable

22 INA Section 212 Inadmissible Offenses  Used to charge EWIs  Present without admission or parole  Controlled substance offenses  Crimes involving moral turpitude (CIMT)  Unless misdemeanor and sentence less than 6 months then falls within petty offense exception  Two or more convictions with aggregate sentence of five years or more  Prostitution  Money laundering

23 INA Section 237 Deportable Offenses  Used to charge aliens admitted to the U.S. and LPRs  Grounds of removability are different than under INA § 212

24 INA Section 237  CIMTs –Crime must be committed within 5 years of admission  Convicted of a crime for which a sentence of one year or longer may be imposed  2 or more CIMTs  Can be committed at any time  Does not matter what the sentence range is

25 INA Section 237  Aggravated felonies  Not a category under INA § 212  Controlled substances  Convicted of any law relating to a controlled substance other than a single offense involving possession for one’s own use of 30 grams or less of marijuana  Firearms offense  Not a category under INA § 212

26 INA Section 237  Domestic Violence Offenses  Includes crimes of domestic violence, stalking, or violation of protection order, crimes against children  “Crime of domestic violence” – any crime of violence (as defined in 18 USC § 16) against a person committed by a current or former spouse, by an individual with whom the person shares as a child in common, by an individual who is cohabitating or has cohabitated with the person as a spouse

27 Categories of Crimes  Aggravated Felonies  Crimes Involving Moral Turpitude  Drug Crimes  Domestic Violence

28 Conviction Defined  A formal judgment of guilt of the alien entered by a court, or if adjudication of guilt is withheld, where:  A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo or has admitted sufficient facts to warrant a finding of guilt and  The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty  INA § 101(a)(48)(A); 8 USC § 1101 (a)(48)(A)  Includes suspended sentences under 8 USC § 1101(a)(48)(B)

29 Finality of a Conviction  Historically, a conviction was not considered final until the criminal appeals process is exhausted. See Pino v. Landon, 349 U.S. 901 (1955).  But note current definition of conviction omits appeal language  Effects on your cases?

Effects of State Action  No effect is given if a court vacates a conviction for reasons solely related to immigration hardships.  Effect is given to convictions reversed on direct appeal or vacated on constitutional grounds 30

31 Aggravated Felonies  The most serious crimes pursuant to the Act.  Found in INA § 101(a)(43); 8 USC § 1101(a)(43)  Individuals convicted of aggravated felonies are generally not eligible for any form of relief from removal other than Withholding of Removal or Deferral of Removal under Article 3 of the Convention Against Torture  Some misdemeanors will qualify as an aggravated felony

32 Crimes Involving Moral Turpitude (CIMT)  Most difficult category to determine  Not defined anywhere in the Act  8 th Circuit has defined as “an act of baseness, vileness, or depravity in the private and social duties” that people owe each other or “society in general, and is contrary to the accepted rule of right and duty.” Franklin v. INS, 72 F.3d 571, 573 (8th Cir. 1995). Stated a different way, CIMTs involve conduct that is base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general. Lateef v. Dep’t of Homeland Security, 592 F.3d 926, 929 (8th Cir. 2010) (internal quotations omitted).

33 Crimes Involving Moral Turpitude  Requires:  Mens Rea and  Reprehensible conduct

34 Crimes Involving Moral Turpitude  Mental state  Intentional  Knowing  Reckless

35 Crimes Involving Moral Turpitude  General Classes of Crimes  Crimes Against Children  Endangering the Welfare of a Child  Sex Crimes  Stealing/Theft offenses  Burglary  Fraud/Forgery  Passing Bad Checks  Possession of Child Pornography

36 Crimes Involving Moral Turpitude  General Classes of Crimes  Prostitution related offenses  Murder  Manslaughter  Involuntary Manslaughter under may constitute a CIMT  Vehicular Homicide under KSA is not a CIMT

37 Domestic Violence Offenses  There is no Domestic Violence Category of Offense under Section 212  So, in order for a person who EWI to be removable for a criminal conviction for a DV offense, it would have to qualify as a CIMT AND  Not fall within the petty offense exception

38 Domestic Violence Offenses  Domestic Violence Offenses; INA § 237(a)(2)(E)  Includes crimes of domestic violence, stalking, or violation of protection order, crimes against children  “Crime of domestic violence” – any crime of violence (as defined in U.S.C. 16 (a)) – against any person committed by a current or former spouse, by an individual with whom the person shares a child in common, by an individual who is cohabitating with or has cohabited with a person as a spouse,... Or by any other individual against a person who is protected from that individuals acts under the domestic violence laws of the U.S., or an State, Indian tribal government, or local government

39 Domestic Violence Offenses  18 U.S.C. § 16 (a) – an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another  18 U.S.C. § 16 (b) – any other 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  Johnson v. United States – 130 S.Ct (2010)  Defines “physical force” as requiring the intentional use of “violent force,” force capable of causing physical pain or injury to another person  Requires intentional conduct  United States v. Torres-Villalobos, 487 F.3d 607, 615 (8th Cir. 2007)

40 Drug Offenses  Both EWI and those aliens who have been admitted or are LPRs can be charged with drug related offenses  But there are differences between the grounds of removability for a drug related offense under § 212 (a)(2)(A)(i)(II) and under § 237(a)(2)(B) if the drug is marijuana  EWIs are removable if they possess any amount of marijuana  Aliens who have been admitted and LPRs are only removable for marijuana possession if they possessed over 30 grams  Both are removable for possessing any amount of any other controlled substance

Intermission - Persecutors Pimentel Rios Ex-solider for Guatemala’s army – removed and prosecuted Beatrice Munyenyezi Former political operative in Rwanda complicit in genocide – convicted of fraud, citizenship revoked, imprisoned, and later removed 41

42 Relief from Removal  While an alien may be found removable based upon a criminal conviction, that does not necessarily mean that the alien will be removed from the U.S. Depending on the nature and the severity of the criminal conviction, the alien may be able to avoid removal and remain in the U.S.

43 Relief from Removal  Asylum  Kansas City Immigration Court completed 283 asylum cases in FY % were granted.  Adjustment of Status/Waivers of Inadmissibility  Cancellation of Removal  Prosecutorial Discretion  Deferred Action  Special Visa Categories

44 Asylum  The Secretary of Homeland Security or the Attorney General may grant asylum to aliens who apply for asylum in a timely fashion, meet certain procedural requirements, and qualify as refugees  Refugee: a person who is unable or unwilling to return to the country of his or her nationality because of “persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion….” 8 USC § 1101(a)(42)(A).

45 Adjustment of Status and Waivers  An alien may adjust his or her status to that of lawful permanent resident  A person who has been admitted and has been convicted of a CIMT or drug offense may be eligible to “waive” that crime and adjust status:  Drug offense – Only waiver available waives a single offense for simple possession of 30 grams or less of marijuana  CIMT – alien must show extreme hardship to a United States citizen or permanent resident spouse, parent, son, or daughter

46 Cancellation of Removal  LPRs can be granted a waiver of convictions for a drug offenses or CIMT – INA § 240A(a); 8 USC § 1229b(a)  This waiver can only be granted once  Requires the person have been admitted for permanent residence for not less than 5 years and  Resided in the US continuously for 7 years after being admitted in any status and  Not have been convicted of an aggravated felony  Aliens who entered the U.S. without inspection may be eligible to “cancel” their removal if they meet the requirements of INA § 240A(b); 8 U.S.C § 1229b(b).

47 Waivers – CIMTs and Drug Offenses  EWIs– generally no waiver available for these crimes for people who have no status in the U.S.  If an EWI marries a United States citizen, they generally cannot adjust their status in the United States, but must return to their country to Consular Visa process  At that point, they can apply for a waiver for a CIMT or a drug offense but only if that drug offense relates to 30 grams or less of marijuana

Special Visa Categories  The Victims of Trafficking and Violence Act of 2000 created two new non-immigrant visas for non-citizen victims of crimes: the T-visa and the U-visa.  Both visas are designed to provide immigration status to non-citizens that are assisting or are willing to assist authorities in investigating crimes. 48

 Requirements:  Victim of a qualifying crime listed in INA § 101(a)(15)(U); 8 U.S.C. § 1101(a)(15)(U)  Examples: Rape, torture, trafficking, incest, domestic violence, sexual assault, prostitution, FGM, kidnapping, abduction, manslaughter, murder, felonious assault, or an attempt  Crime occurred in the U.S. or violated U.S. laws  Suffered substantial physical or mental abuse as a result of having been a victim of the crime U Visa 49

U Visa  Possesses information concerning the crime  Has been/is being/is likely to be helpful to authorities in the investigation or prosecution of the crime (certification from the official required)  Limited to 10,000 per year 50

T Visa  Allows certain victims of human trafficking to remain in the United States if they cooperate with law enforcement against those responsible for their enslavement  Allows victims under the age of 15 to remain in the United States if it is determined that such victims could suffer “extreme hardship involving unusual and severe harm” if returned to their home countries  After three years in “T” status, victims of human trafficking may apply for permanent residency 51

S Visa  Allows federal or state law enforcement authority, which includes a state of federal court or the USAO, to request an “S” non-immigrant classification for certain alien witnesses or informants  Applications may be made for aliens who are in other countries awaiting entry into the U.S., or for aliens who are already in this country but whose immigration status would not otherwise permit them to remain 52

S Visa, cont.  To merit an S visa, the alien must:  Possess critical and reliable information concerning a criminal organization or enterprise;  Be willing to supply or have supplied information to a federal or state law enforcement agency; and  Be essential to the success of an authorized criminal investigation or the successful prosecution of an individual involved in the criminal organization or enterprise 53

Prosecutorial Discretion  DHS may exercise its discretion not to place an alien in removal proceedings even if the alien has been convicted of a crime that would render the alien removable  After proceedings have been initiated, the Office of Chief Counsel may favorably exercise prosecutorial discretion in a variety of ways, including moving to dismiss removal proceedings against an alien 54

Deferred Action  Even an alien subject to a final removal order may still avoid removal  DHS may “defer removal” by concluding that it is not in the best interest of the government to remove this alien  DACA 55

Immigration Reform? 56

Worksite Enforcement  Criminal worksite enforcement  Alien harboring  Fraud  Money laundering  Civil administrative Form I-9 inspections  Paperwork violations on Form I-9  Knowing hire or continuing to employ illegal aliens 57

Form I-9 Inspections  INA § 274A, 18 USC § 1324a  Law requires employers and employees to complete Form I-9  ICE agents have authority to inspect records  NIF issued for  Paperwork violations – substantial v. technical  Violations for knowing hire and continuing to employ  Settlement negotiations  Litigation at OCAHO 58

U.S. v. Arizona, 130 S.Ct (2012)  SC invalidated under the Supremacy Clause three of the four provisions of AZ statute S.B. 1070, including:  Misdemeanor for “failure to complete or carry an alien registration document”  Misdemeanor for “unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor”  Provision authorizing police, without a warrant, to arrest someone if probable cause exists to believe the person has committed any public offense that makes him removable from the U.S.  (SC declined to rule on immigration status check provision)  U.S. government has “broad, undoubted power over the subject of immigration and the status of aliens”  Limited effect for federal immigration enforcement 59

60 Contact Information  Kansas City Sub-Office 2345 Grand Blvd., Ste. 500 Kansas City, MO (816)  Justin Howard, Assistant Chief Counsel (816)

Questions? 61