How to Advocate for Noncitizen Clients

Inadmissibility and Deportability Grounds Overview Big-Picture Overview of Immigration Consequences of Criminal Convictions Inadmissibility and Deportability Grounds How to Analyze Immigration Consequences of Criminal Convictions How to Attack an Underlying Removal Order

Some Terminology... Lawful Permanent Resident=LPR Removal = Deportation Removable =Deportable

Overview Non-Citizen Defendants, even if LPR, may be subject to removal based on a criminal conviction Some convictions make immigrants ineligible for bond in the immigration detention system Some convictions result in automatic deportation (I.e. there is almost NO DEFENSE), while others can be WAIVED 

Analysis for Non-Citizen Clients Is my client a CITIZEN?  If not, is s/he subject to the grounds of inadmissibility or deportability? If possible, can I craft an immigration-safe plea for my client?

Different rules apply depending on the person’s date of birth. Is my client a CITIZEN? U.S. citizen parents at time of client’s birth abroad (acquisition of citizenship) Before client’s 18th birthday, at least one parent was a U.S. citizen and client was an permanent resident (derivation of citizenship).  Different rules apply depending on the person’s date of birth.  http://www.ilrc.org/resources/acquisition-derivation-quick-reference-charts. 

Inadmissibility Grounds INA § 212(a) Deportability Grounds INA § 237(a)  If no exception or waiver applies, individual may be barred from entry/benefit, or removed

Inadmissibility INA § 212(a) Health-related grounds  Crimes  National security grounds  Public charge  Fraud or misrepresentation  Documentation requirements  False Claim to USC     Prior removals or unlawful presence in the U.S. Miscellaneous grounds

Who is subject to inadmissibility grounds? Noncitizens who entered without inspection Noncitizens paroled into U.S. Noncitizens arriving at border or port of entry Noncitizens applying for visa or adjustment of status Noncitizens applying for certain benefits

Why does admission matter? Potential eligibility to adjust status Subject to grounds of deportability Burden of proof Measures exposure to CIMT crime- based deportability

LPRs returning to U.S. not subject to inadmissibility at border unless: Abandoned or relinquished LPR status Absent for > 180 consecutive days Engaged in illegal activity after leaving U.S. Left U.S. while in removal proceedings Have committed a criminal or related offense identified in section 212(a)(2) (including "crimes of moral turpitude", drug trafficking, or prostitution) Are attempting to enter at a place other than a designated port of entry or have not been admitted to the U.S. after inspection and authorization by an immigration officer. INA § 101(a)(13)(C).

Criminal Grounds of Inadmissibility Crimes for which a waiver is available: Most aggravated felonies CIMTs Prostitution-related offenses Simple poss of 30 g or less or marijuana Conviction of two or more offenses of any kind with an aggregate sentence imposed of at least five years; Serious crimes involving a grant of immunity Crimes for which a waiver is NOT available Controlled substance offenses, INCLUDING simple possession Murder, or criminal acts involving torture Significant traffickers of drugs or people, or those who have benefitted from the gains of trafficking

Grounds of Inadmissibility For a comprehensive list of all grounds of inadmissibility and related waivers, see:  http://www.smartimmigrationlawy er.com/inadmissibility-waivers/

Deportability INA § 237(a) Inadmissibility at time of entry Violated visa terms/visa revoked Crimes  Willful failure to register False Documents   Security Related Grounds  Fraud or Misrepresentation Public Charge Smugglers Unlawful Voters False Claim to USC

Who is subject to deportability grounds? Noncitizens who were “inspected and admitted” Admission obtained by fraud = admission Matter of Agour, 26 I&N Dec. 566 (BIA 2015) Grants of certain benefits DO count as an admission Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). Grant of TPS constitutes an admission for purposes of adjustment of status under INA § 245(a). Issue currently Pending before the 9th Circuit in Ramirez v. Dougherty Other benefits DO NOT count as an admission DACA – but could be litigated

The “Waive Through” Admission Matter of Quilantan, 25 I &N 285 (BIA 2010) An alien seeking to show that s/he has been “admitted” to the U.S. pursuant to INA Section 101(a)(13)(A) need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status.

Deportability: Inadmissible at time of entry “[a]ny alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.” An individual may be deported as inadmissible at the time of entry even though he or she was examined and admitted by an immigration officer The grounds of inadmissibility are applied to the individual’s circumstances as they existed at the time of entry.

Deportability: Failure to Maintain Status Foreign nationals who fail to maintain their nonimmigrant status or to comply with the conditions of their stay in the United States are subject to deportation. Overstaying the prescribed period of admission; Accepting unauthorized employment Discontinuing studies (if the nonimmigrant is a student). A nonimmigrant also may lose lawful status if he or she is convicted of any criminal offense punishable by a term of imprisonment of at least one year

Deportability: Termination of Conditional Permanent Residence Conditional permanent residency is granted to the spouse or child of a USC or LPR through a marriage entered into less than two years before they are admitted for permanent residency. Also granted to entrepreneurs who obtain a visa as employment-creating investors. If the conditional LPR fails to file a petition to remove the condition before the second anniversary of obtaining conditional status, or if it is found that the qualifying marriage was fraudulent or has been terminated, the foreign national’s conditional status may be terminated. An IJ must review the decision by USCIS, Waivers available

Deportability: Alien Smuggling At the time of entry, or within five years of entry, knowingly encouraged, induced, assisted, aided or abetted any other foreign national to enter or try to enter the United States. Applies regardless of whether the person being smuggled is a close relative or whether the smuggling was for gain. Not a criminal ground of deportability; the respondent’s deportability may be established even if he or she has never been convicted of a criminal smuggling offense.

Deportability: Alien Smuggling Waiver: for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, if spouse, parent, son, or daughter, to enter the U.S. in violation of law.  See Matter of Farias, 21 I&N Dec. 269, 281-282 (BIA 1997) waiver only if spouse, parent, son, or daughter at time of entry Selimi v. INS, 312 F.3d 854, 861 (7th Cir. 2002) (finding that under section 212(d)(11) of the Act an alien is ineligible for a waiver “if he has aided someone other than his spouse, parent, son, or daughter”). To qualify for a section 212(d)(11) waiver, must be”:  LPR who temporarily proceeded abroad voluntarily and not under an order of removal, and must be otherwise admissible to the U.S. as a returning resident Seeking admission or family-sponsored adjustment of status as an immediate relative or immigrant under section 203(a) of the Act (excluding brothers or sisters of U.S. citizens who are twenty-one or older). 

Deportability: Marriage Fraud INA §237(a)(1)(G)(i) LPR status through a marriage that took place within two years prior to the foreign national’s gaining status, and the marriage was judicially annulled or terminated within two years after the foreign national gained LPR status, the marriage is presumed to have been fraudulent. The foreign national must prove that marriage was bonafide §237(a)(1)(G)(ii), which makes a foreign national deportable if the foreign national has failed or refused to fulfill the foreign national’s marital agreement which, in the opinion of the Attorney General (AG), was made for the purpose of procuring the foreign national’s admission as an immigrant.

Deportability: False Claim to USC Identical to false claim to citizenship ground of inadmissibility, and applies to any foreign national who, on or after September 30, 1996, falsely represents himself or herself to be a citizen of the United States for any purpose or benefit under the INA or any other federal or state law. Affirmative defense: 1) the individual was under the age of 18 when the false claim was made, and 2) at that time he or she lacked the capacity to understand the nature and consequences of the false claim. The burden is on the non-citizen to establish these elements clearly and beyond doubt.

Deportability: National Security INA §237(a)(4)(A) : Any individual who has engaged, is engaged, or at any time after entry engages in (i) any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information, (ii) any other criminal activity which endangers public safety or national security, or (iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means, is deportable. Deportable regardless of whether they committed the relevant offenses before or after they entered the United States. Limited to activities that endanger public safety or national security. No conviction necessary; having been or being engaged in the activity is enough. ICE has the burden of proving by clear and convincing evidence that the activity is criminal and that it endangers public safety or national security.

Deportability: Public Charge Within five years after the date of entry, public charge from causes not affirmatively shown to have arisen since entry. All the following elements must be present:  The law must impose a debt for the services provided to the foreign national (i.e., the law must provide that the state or other public entity can sue the foreign national or other designated foreign nationals for payment of services rendered).  The public entity must demand payment of charges; and  The foreign national must refuse to pay the charges imposed. Receiving benefits under such federal programs as TANF, SSI, Medicaid, or the Food Stamp Program does not impose any legal debt  In some states, accepting state general relief or general assistance payments may create a liability.  Can rebut showing that the reasons for their condition arose after they entered the United States

Criminal Grounds of Deportability Aggravated Felony Controlled substance offense (except <30g MJ) 1 CIMT committed within 5 yrs of admission for which a sentence of a year or more may be imposed 2 CIMTs any time after admission “not arising from a single scheme of criminal misconduct” Firearm offenses Domestic violence, stalking, crimes against children, or violation of a protective order

What constitutes a conviction? Convicted by a Jury, a guilty plea or no contest plea (no lo contendere) An infraction is NOT a conviction for immigration purposes A successful completion of a pre-plea diversion program is NOT a conviction Certain post-plea drug diversion programs erase CA drug convictions if the plea was before 07/14/2011 (Lujan) Sentence: sentence imposed, NOT time served Suspended sentence does not count as a sentence for immigration purposes if it is never imposed (i.e. defendant does not violate probation) Juvenile adjudications are NOT crimes/convictions for immigration purposes

Aggravated Felonies INA 101(a)(43), 8 U.S.C. 1101(a)(43) Murder Rape Sexual abuse of a minor (under the age of 14 in 9th cir) A crime of violence with a sentence of 1 year or more A theft crime with a sentence of 1 year or more (EXCEPT for CA burglary PC 484(a), PC 666, Lopez-Valencia (9th Cir. 2015)) Drug trafficking (includes poss. w/ intent to distribute) Fraud/tax evasion of more than $10,000 Counterfeiting, bribery, witness intimidation, perjury >1 yr sentence Certain firearm offenses and Certain human smuggling offenses Attempt or conspiracy to commit any of the above

Crimes Involving Moral Turpitude (CIMTs) NO statutory definition, but generally include the following: Theft, forgery, intent to defraud Crimes where serious bodily harm caused or threatened by an intentional act Crimes where serious bodily harm caused or threatened by a reckless act Most sex offenses, including solicitation Petty Offense Exception: 1 offense, misd ( i.e. sentence can’t be more than 1 yr), for which a sentence of 180 days or less is imposed Petty Offense Exception no longer applies if > 1 CIMT

Ag Fels, CIMTs and Bond A person with an Ag fel is INELIGIBLE for bond in immigration detention An undocumented person with 1 CIMT is INELIGIBLE for bond (unless petty offense exception applies) A Lawful Permanent Resident is INELIGIBLE for bond with 2 CIMTs

Controlled Substance Offenses Possession of a Controlled Substance, as defined by federal law Possession with intent to distribute, or any other drug sales Possession of paraphernalia, UNLESS you can prove that the paraphernalia was related to use of <30 grams of MJ Drug offenses are amongst the most serious crimes for immigration purposes, and CANNOT be waived for AOS (except MJ exception) and make LPRs DEPORTABLE  CS offenses make detained immigrants INELIGIBLE for bond

How to Interpret Convictions for Immigration Purposes Remember – in almost all cases, it is the STATUTE that determines the immigration consequence, NOT the underlying conduct First, which grounds are you applying? Inadmissibility or deportability? Determine the Penal Code, Health and Safety Code, or Penal Code under which the person was convicted Determine the sentence imposed, INCLUDING time added for probation violations

Categorical Approach (Taylor, Moncrieffe, Descamps) Read the state statute. Determine the LEAST conduct sufficient to sustain a conviction under that statute Compare the LEAST conduct punishable under the state statute to the generic federal definition of the same crime.  If the least punishable conduct under a state statute is encompassed by the federal definition, a conviction under that statute will ALWAYS have adverse immigration consequences, regardless of the underlying conduct If the state crime is INDIVISIBLE and punishes conduct not included in the federal statute, a conviction under that statute will NEVER have an adverse immigration consequence, regardless of the underlying conduct (except for conduct-based grounds of inadmissibility)

Modified Categorical Approach If the statute is DIVISIBLE (i.e. lists multiple, distinct elements, effectively creating distinct crimes) and not all of the elements constitute inadmissible/deportable crimes, adjudicators may look beyond the statute and consider the record of conviction. Adjudicators may also review the ROC when the federal crime is circumstance-specific (i.e. fraud >$10K) Reviewable documents include: Statutory definition Charging Document Written Plea Agreement Transcript of Plea Colliquy Any explicit factual finding by the trial judge to which the defendant assented (look to whether documents are incorporated to prove the “factual basis” of a plea)

Is CA 484(a) a “theft” offense? Federal Definition:  Taking of property or control over property Without Consent With the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent CA 484(a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.

Essential Resources Immigration Consequences of Certain Federal Offenses Chart  http://www.poarchlaw.com/documents/federal_convi ctions_chart.pdf Immigration Toolkit for Criminal Defense Attorneys https://www.ilrc.org/chart Includes questionnaires for clients in English and Spanish Useful guide for forms of relief (defenses against deportation

Preserve your client's defense against deportation Try to avoid Aggravated Felonies if at all possible  Keep crimes of theft/violence to 364 day or less sentence (remind clients that additional time for probation violations may make the crime an ag fel) If fraud offense, keep amount out of the ROC (if over $10,000)  Avoid Drug Trafficking/Manufacturing Offenses Plead to Possession if at all possible 

Attacking the underlying removal order Useful for 8 U.S.C. § 1326 cases Look carefully at removal orders that occurred without judicial process Expedited Removals: INA § 235(b) applies only if the immigration officer determines that an individual: committed fraud or misrepresented a material fact for purposes of seeking entry to the United States; falsely claimed U.S. citizenship; or is not in possession of a valid visa or other required documentation.  Applies at borders and to noncitizens encountered within 100 air miles of the southwest border who have not been present in the United States for the 14 days immediately prior to the date of encounter 

Expedited Removal (con't) A person subject to expedited removal is immediately ordered removed without any further hearing, review, or opportunity to apply to stay in the United States unless the person expresses a fear of persecution, in which case he or she is afforded a “credible fear interview” to determine whether he or she may apply for asylum. Frequently a person with an expedited removal order has no idea why he or she was deported. Individuals subject to expedited removal generally are not informed of their right to counsel.  Expedited removal can lead to erroneous deportations of individuals who are not deportable or who could apply for lawful status Individuals who may have resided in the United States for decades, and left only for a brief period of time, may be deported pursuant to expedited removal despite having significant ties to the United States. Those subject to expedited removal are automatically barred from returning to the United States for five years. 

Stipulated Removal INA § 240(d) Person is formally charged and placed in immigration court proceedings before an immigration judge. However, the person usually does not appear in an immigration court; rather, the noncitizen agrees (or “stipulates”) to deportation and gives up his or her right to a hearing. The immigration judge may enter the order of removal without seeing the person and asking him or her whether the stipulation was entered into knowingly and voluntarily.  Of the more than 160,000 noncitizens who agreed to stipulated removal orders between 2004 and 2010, the vast majority were in immigration detention—often far from family and home—and unrepresented by counsel. ICE agents who ask detainees to sign stipulated removal orders often leave the individuals confused about their options and feeling pressured to agree to give up their right to hearings. As a result, many stipulated removals cannot be said to be voluntary, knowing, and intelligent, and the procedure raises serious due process concerns.

Reinstatement of Removal INA § 241(a)(5) Reinstatement of removal applies to noncitizens who return illegally to the United States after having previously been deported.  Also frequently applies to in absentia orders of removal Look for "no notice" in absentia – or other basis to reopen Persons apprehended after in absentia order of removal cannot access the credible/reasonable fear interview process until removal has been effectuated an individual who expresses a fear of return during the reinstatement process must be referred to an asylum officer for screening for eligibility for withholding of removal or protection under the Convention Against Torture. Unlike expedited removal, immigration officers may use the reinstatement process anywhere throughout the United States—not just at a POE or within 100 miles of the border. Most persons subject to reinstatement are arrested and kept in custody throughout the process without an opportunity to seek a bond. The process is designed to allow DHS to remove individuals immediately; the entire process (including the removal) may occur within 24 hours. 

Obtaining Immigration Records for Case Analysis FOIAs  EOIR: All Immigration Court Records Cover Letter including full name, aliases, immigration hearing location, and alien registration (A) number  Form DOJ-361, Certification of Identity  USCIS: All Affirmative Applications, including Asylum Office Record Form G-639 Can be filed online  Can take several months to receive a response ICE: All Stipulated Removals, some Expedited Removals, other court/criminal records Can use Form G-639 or use online request form Quick turnaround; usually sent via email CBP:  Online request form Black hole!

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