PRESIDING OVER CASES INVOLVING NON-CITIZEN DEFENDANTS Immigration Consequences of Criminal Convictions and the Role of the Magistrate Sharon L. Ames, Esq. Regional Immigration Assistance Center, Region 2 NYS Magistrates Association Sept. 26-27, 2016

Who are “U.S. citizens?” Those born in the United States Those who have applied through naturalization Those who have acquired citizenship automatically by operation of law Those who have derived citizenship through a parent or other qualifying relative

Who are NOT “U.S. Citizens?” EVERYBODY ELSE! This includes: Lawful Permanent Residents (green card holders) Refugees and Asylees Temporary visa holders (tourists, students, those with a work visa) Those allowed to be present in the U.S. for humanitarian reasons: e.g. Temporary Protected Status, Special Immigrant Juveniles

WHY IS THIS IMPORTANT? Anyone who is NOT a U.S. citizen can be removed(deported) from the United States.

PEOPLE V. PEQUE 22 NY3d 168(2013) “Deportation is a plea consequence of such tremendous importance, grave import and frequent occurrence that a defendant is entitled to notice that it may ensue from a plea.” Peque at 176

Peque did not address misdemeanor pleas. ¹ The court held that where an immigration consequence will result from a conviction, a defendant must be made aware of this consequence in order to render a plea knowing intelligent and voluntary. ¹ But see Peo. v. Marshall, 2015 Slip Op 51932(U)[50 Misc 3d 131(A)], decided 12/31/2015, the County Court held that such warnings were required in the local courts.

WHY IS THIS IMPORTANT? Certain misdemeanor convictions can result in permanent removal from the U.S. Certain violations also have deportation consequences e.g. Petit Larceny with a sentence of ONE YEAR IN JAIL. e.g. Harassment 2d committed in violation of an Order of Protection.

HOW DO WE FIND OUT WHAT THE IMMIGRATION CONSEQUENCES ARE? Allow the defendant to consult with counsel and contact the RIAC Grant necessary and appropriate adjournments to allow time for counsel to determine immigration consequences and advise the defendant.

CONTACT THE RIAC If counsel has been assigned, provide counsel with RIAC contact information. If counsel has not been assigned , contact RIAC to advise of the pending case and the name of the attorney (with his/her contact information) who will be assigned to represent the defendant.

WHAT WE DO: Provide assigned counsel and public defenders support and assistance to properly advise their clients of the immigration consequences of any plea in criminal court or disposition in Family Court. Our services assure that defense attorneys are in compliance with the holding in Padilla v. Kentucky. We work with defense counsel and do not provide any direct representation of a defendant. RIAC s provide training with CLE and CJE credit for 18b counsel, public defenders, and judges to help facilitate communication with the client, counsel and the court about these consequences. We provide support for language access when needed.

Judge’s role: Counsel’s role: Determine if attorney has advised on immigration consequences, if applicable. Provide attorney with an opportunity to consult with an immigration expert. Consider mitigating factors and/or requests made to minimize, unintended immigration consequences. Provide all defendants with a brief, concise statement advising that a guilty plea may expose them to deportation Padilla v. Kentucky Determine client’s immigration status, background and goals Analyze immigration consequences with immigration attorney Minimize risk Provide accurate and complete advice

JUDGES SHOULD INCLUDE THIS STATEMENT AT ARRAIGNMENT OF EVERY DEFENDANT:

COUNSEL SHOULD ALWAYS ASK EVERY DEFENDANT: WHERE WERE YOU BORN? If the answer is anywhere other than the U.S. or Puerto Rico, there may be immigration consequences involved in any plea that is offered to this defendant.

AT THE PLEA/SENTENCING: “If you are not a citizen of the Unite d States, your plea of guilty may subject you to deportation from the U.S. If you have not done so, you have the right to be advised of the immigration consequences of your plea .”

BEST PRACTICES If you become aware that a defendant was not born in the US, give RIAC contact info to counsel OR contact RIAC with name/contact info for counsel you assign.

Adjourn the case as necessary for counsel to obtain advisal from RIAC 4. Provide access to interpreter as required 5. Keep in mind that often the immigration consequences are more important to the defendant in his/her decision to plead guilty rather than the sentence or conviction because the immigration consequences are life changing.

The Court is not in a position to advise on the defendant’s immigration status and so should avoid questioning the defendant about this. (Many people just don’t know their status or can be mistaken.) This determination is made by a complicated needs assessment by defense counsel who has a privileged relationship with the client. It is the job of defense counsel to ascertain status and provide advice. 7. Don’t make any assumptions about the defendant’s status or whether he or she is deportable.

The Court should not consider taking a plea from the defendant without counsel because of the possible immigration consequences. 9. One cannot assume the defendant understands enough English to comprehend the situation or make an informed decision without the aid of an interpreter.

What Is a “Conviction” for Immigration Purposes? “Conviction” (8 USC §1101(a)(48)(A), INA §101(a)(48)(A)): FORMAL JUDGMENT OF GUILT entered by a court; or IF ADJUDICATION HAS BEEN WITHHELD, where: a. 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 b. The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

WHICH NEW YORK DISPOSITIONS ARE “CONVICTIONS” ?

WHAT ABOUT DWI OFFENSES?? DWI (i.e., NY VTL §1192) – NOT DEPORTABLE (YET!) unless the following aggravating factors exist: Driving with suspended or revoked license (i.e., NY VTL §§511(2) or 511(3)(a)(i) AUO) See Matter of Lopez-Meza, Int. Dec. 3423 (Dec. 1999, BIA). Children endangered (i.e., Leandra’s law) Under the influence of a controlled substance (i.e. NY VTL §1192(4)) Leaving the scene (Personal Injury)

ON THE ROCKS: “ICE” ENFORCEMENT PRIORITIES AND CRIMINAL CONVICTIONS PEP: Priority Enforcement Program Priority 1 Priority 2 Priority 3

REGIONAL IMMIGRATION ASSISTANCE CENTERS TITLE AND CONTENT