Pleading Non-Citizens in the Criminal Court Dallas County Public Defender’s Office

Padilla v. Kentucky (2010)

“Informed consideration” of immigration consequences by the defense AND THE PROSECUTION during plea negotiations, in order to reduce likelihood of deportation and promote interests of justice, is appropriate.” Padilla v. Kentucky (2010) Although Padilla is about a criminal defense attorney’s duty. The Supreme Court did address the role of judges and prosecutors in handling non-citizen criminal cases. It is clear the only way for proportionate punishments to be achieved is with the cooperation of the judiciary and the prosecution. (Read card) Again as I mentioned before, I think you can explain the proportionality considerations to the DA if they say to you why would I treat a non-citizen better than a citizen and then I also carry around the Padilla quote regarding prosecutors to show it to the DAs. Because the judges are required to only take knowing and voluntary pleas, they have a vested interest in seeing the Padilla rights protected, and to give time if needed for research and encourage collaboration.

To advise your client you need to know: Immigration status/history Pending charges Prior criminal history Now to illustrate the importance of having this information, let me compare it to a criminal case. If I came into your office and told you my client was charged with possession of marijuana, and then asked you if he would be convicted and what his sentence would be, you would likely tell me that you needed more info to even begin to answer that question. You might need to know the amount of marijuana, where he was when he was arrested, where if the drugs were on his person or in his vehicle when he was arrested, what his priors were and so on. This is exactly the same with immigration. If you just tell me the charge, I cannot tell you the immigration consequences without knowing more.

Convictions and Sentences

Overview of Immigration Consequences

Grounds of Inadmissibility v. Deportability Then I like to look if it prejudices relief, travel and naturalization.

Crimes of Moral Turpitude (CIMT)

Aggravated Felony cont’d

Aggravated Felony cont’d

Analyzing the State Statute Looking at the existing case law Sources of Law BIA and AAO (both under DOJ) 5th Circuit SCOTUS Other Circuits as needed Types of Cases Appeals of affirmative and defensive immigration cases Federal crimes (illegal re-entry, ACCA etc) Ineffective Assistance of Counsel cases Dallas County Public Defender

The Categorical Approach: Look at the statute not the conduct How to see if a state conviction triggers a federal immigration outcome Dallas County Public Defender

Categorical Approach Continued

Road Map for Categorical Approach Is there a categorical match? What if the statute defines multiple offenses? Does the ROC establish that the offense of conviction comes within removal grounds? Dallas County Public Defender

Part 1: Is there a categorical match? Does the offense categorically (always necessarily) match the removal ground? Has anyone, anywhere ever been convicted of this state statute but would not have been convicted under the federal definition? Dallas County Public Defender

Step A: Find the Generic Definition Identify the generic definition of the crime listed in the removal ground. Generic Definition = Federal definition of a criminal law term that appears in the INA May be reference to Fed statute or case law We want to distinguish client’s offense from the generic definition. Dallas County Public Defender

Step B: Find the Minimum Conduct Identify the minimum prosecuted conduct that violates the criminal statute. Defense Goal: Identify some minimum conduct that falls outside the generic definition Tip: Look to state law cases Dallas County Public Defender

Use a chart to see if it is a match State Statute Generic Definition Taking a vehicle Taking Without consent Intent to Deprive Guilty for permanent or temporary taking Permanent taking only. Definition excludes temporary takings. Dallas County Public Defender

STATE CONVICTION = REMOVAL GROUND Now do we have a match? If all conduct in the state statute comes within the generic definition, there is a match. STATE CONVICTION = REMOVAL GROUND If it does not, no match and the statue is “overbroad” and should not trigger removal ground Dallas County Public Defender

Part 2: But what if the statute defines various offenses? So if statute only deals with one offense, you end at step one BUT If statute has more than one offense, you have to see if its actually a different offense or just a different means to commit the same offense Dallas County Public Defender

Requirements for Divisible Statute In Mathis v. U.S., 136S.Ct. 2243 (2016), the Supreme Court addressed when a statute is divisible. The statute sets out different elements phrased in the alternative (uses “or”). At least one, but not all, of the alternatives triggers the removal ground. A jury would have to decide unanimously between the alternatives in order to find guilt in every case – this is the definition of “element.” without this, alternatives are mere “means” of committing a single crime. Dallas County Public Defender

Texas Tough Stance on Crime Helps Us! Texas loves its prosecutors enough to rarely require jury unanimity Dallas County Public Defender

Part 2: Analyzing Divisibility If the state statute is not divisible (ie there may be various means of commission but only one set of elements) and there is no match- WE WIN If the statute is divisible, we need to figure out which offense of those listed in the statute our client committed Dallas County Public Defender

Reviewable Record of Conviction YES NO Plea colloquy transcript Admissions during plea Charge, if evidence shows plea to charge Judgment Factual basis for plea In some cases, notations on minute order, abstract Dropped charges Statements to IJ (unless admitting a fact in the NTA during plea) Co-D’s record Police report Probation/Pre-sentencing report Preliminary HRG transcript (Unless stipulated as factual basis for plea) Dallas County Public Defender

Example Generic Definition Burglary Taylor v. United States, 495 U.S. 575 (1990) “unlawful or unprivileged entry into, or remaining in a building or structure, with intent to commit a crime” Dallas County Public Defender

Example: Texas Burglary A person commits an offense if, without the effective consent of the owner, the person: (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. Dallas County Public Defender

Texas Burglary Chart State Statute Generic Definition Without consent enters Unlawful, unprivileged entry or remaining Building or habitation Building or structure With Intent to commit a crime Commits Theft, Assault or other felony Dallas County Public Defender

Contact information Jordan Pollock, Assistant Public Defender/Immigration Specialist at the Dallas County Public Defender’s Office (214)653-3579 jordan.pollock@dallascounty.org Dallas County Public Defender