Immigration Consequences of Criminal Convictions DPA Annual Conference 2014 Immigration Consequences of Criminal Convictions June 17, 2014 Erlanger, Kentucky Hena Mansori (NIJC) and Kate Benward (DPA) www.immigrantjustice.org

National Immigrant Justice Center The National Immigrant Justice Center (NIJC), a program of Heartland Alliance, promotes human rights and access to justice for immigrants, refugees, and asylum seekers through legal services, policy reform, impact litigation, and public education. Throughout its 30-year history, NIJC has been unique in blending individual client advocacy with broad-based systemic change. NIJC serves more than 8,000 immigrants annually with the support of a professional legal staff and a network of over 1,000 pro bono attorneys. DR

NIJC’s Defenders Initiative NIJC’s Defenders Initiative provides training and free legal consultations to criminal defense attorneys regarding the immigration consequences of crimes. DR

AGENDA: The Role of the Criminal Defense Attorney Key Factors to Consider in Non-Citizen Cases Major Consequences of Criminal Convictions for Immigrants Eligibility for Relief Under Immigration Law DR

THE ROLE OF THE CRIMINAL DEFENSE ATTORNEY: SPECIAL CONSIDERATIONS IN REPRESENTING NON-CITIZENS DR

Due Process Considerations for Immigrants No right to court-appointed counsel in removal proceedings if indigent. Many non-citizens appear pro se in removal proceedings. Correct advice by criminal defense counsel is vital to protecting due process in removal proceedings. DR

Padilla v. Kentucky, 130 S. Ct. 1473 (2010) Facts: Long time lawful permanent resident (LPR), former veteran, pled guilty to drug trafficking on counsel’s advice that offense would have no effect on immigration status Issue: Did counsel have a duty to advise Padilla of the immigration consequences of his plea? Holding: Yes, criminal defense counsel has a duty under Sixth Amendment to advise a non-citizen client of the immigration consequences of a guilty pleas. Remanded for an evidentiary hearing as to prejudice (as required under Strickland). SRW

Padilla Holding, cont’d Deportation is an integral part of the penalty, not a collateral consequence When deportation consequences are clear: Counsel must provide correct affirmative advice When consequences of deportation are unclear: Counsel must advise on risk of deportation. SRW

Avoiding Negative Immigration Consequences for Your Non-Citizen Client Work with the prosecution to consider: Alternate charges Alternate sentences Construction of plea/diversion agreements DR

KEY FACTORS TO CONSIDER IN NON-CITIZEN CASES Current immigration status Immigration history (date of entry, lawful or unlawful entry, prior deportation) Criminal history, including arrests DR

Immigration Status Non-citizens fall into different categories: Lawful permanent residents (LPRs): individuals who have indefinite legal status in the United States (“green card holders”) Persons lawfully present who are not LPRs: asylees, refugees, visitors, foreign students, work visas, temporary protected status Undocumented individuals: people who entered with a valid temporary status and overstayed or people who entered without inspection DR

Pertinent Immigration History When and how arrived in the United States? Basis for obtaining immigration status (via relatives, work, refugee status)? Immigration status of relatives, especially spouse, children, and parents? Any prior deportations or encounters with immigration or an immigration judge? DR

Prior Criminal History Some non-citizens may face removal based on prior criminal convictions, even convictions that are decades old Multiple convictions may trigger certain negative immigration consequences All criminal history is relevant, regardless of whether the individual received jail time and regardless of whether the crime was a misdemeanor or felony. DR

What is a “conviction” under immigration law? HM

Immigration Definition of Conviction, 8 U.S.C. § 1101(a)(48)(A) Judge/jury finds the non-citizen guilty; or non-citizen enters a guilty or “nolo contendere” plea; or non-citizen admits sufficient facts to warrant finding of guilt AND A judge orders some form of punishment, penalty, or restraint on liberty. HM

TIP: Avoiding a conviction for immigration purposes Avoid any unnecessary admission of guilt. Work to obtain deferred prosecution, where no guilty plea is entered. Diversion programs such as “drug school” will likely avoid convictions for immigration purposes, if no guilty plea is required. HM

Sentencing Sentencing An immigration judge will look to the period of confinement ordered by the court regardless of suspension, imposition, or execution of sentence. For many types of crimes, the length of sentence matters. However, this is not always the case! An immigration judge will look to the period of confinement ordered by the court regardless of suspension, imposition, or execution of sentence. For many types of crimes, the length of sentence matters. However, this is not always the case! HM 17

Kentucky Pre-Trial Diversion Requires a guilty plea, so still a conviction for immigration purposes. Make sure the agreement your client signs does not contain a jail sentence of one year or more! A sentence recommended by the Commonwealth, but not actually imposed by the court, is okay. An immigration judge will look to the period of confinement ordered by the court regardless of suspension, imposition, or execution of sentence. For many types of crimes, the length of sentence matters. However, this is not always the case! HM 18

Expungements No effect for immigration purposes. Increase difficulty for an immigration attorney to analyze a non-citizen’s eligibility for an immigration benefit, such as naturalization. To apply for many forms of relief, individuals must provide certified dispositions of ALL arrests. If a conviction has been expunged, it is difficult to impossible to obtain records. TIP: Retain complete copies of all conviction records before they are expunged.

MAJOR CONSEQUENCES OF CRIMINAL CONVICTIONS FOR IMMIGRANTS HM

Three Major Consequences of Criminal Convictions Removal (deportation) from the United States Ineligible for an immigration bond, resulting in “mandatory custody” during removal proceedings Ineligible for immigration waivers or relief SRW

Removal from the United States A non-citizen may be removed from the United States when charged with inadmissibility pursuant to 8 U.S.C. § 1182 or deportability pursuant to 8 U.S.C. § 1227. HM

8 U.S.C. § 1182(a)(2) Criminal Grounds of Inadmissibility Admissions to or Conviction of a Crime Involving Moral Turpitude (CIMT), 8 U.S.C. § 1182(a)(2)(A)(i)(I) Admissions to or Conviction of Controlled Substance Violations, 8 U.S.C. § 1182(a)(2)(A)(i)(II) HM

8 U.S.C. § 1182(a)(2) Criminal Grounds of Inadmissibility Conviction of 2 or more Crimes with Aggregate Sentence of 5 Years or more, 8 U.S.C. § 1182(a)(2)(B) Prostitution (within 10 years of admission or adjustment of status) and commercialized vice, 8 U.S.C. § 1182(a)(2)(D) HM

8 U.S.C. § 1227(a)(2) Criminal Grounds of Deportability Single Crime Involving Moral Turpitude (CIMT), 8 U.S.C. § 1227(a)(2)(A)(i): Committed within 5 years after the day of admission; Punishable by a sentence of a year or longer. CAUTION: A single misdemeanor CIMT in KY can thus make even an LPR deportable if committed within 5 years of admission. HM

8 U.S.C. § 1227(a)(2) Criminal Grounds of Deportability Multiple CIMTs, 8 U.S.C. § 1227(a)(2)(A)(ii) Conviction of two or more CIMTs; Not arising out a single scheme; Can occur any time after admission Conviction for a Crime Involving Domestic Violence, Stalking, Child Abuse, Violation of Orders of Protection. 8 U.S.C. §1227 (a)(2)(E) HM

8 U.S.C. § 1227(a)(2) Criminal Grounds of Deportability Aggravated Felonies. 8 U.S.C. § 1227(a)(2)(A)(iii), defined by 8 U.S.C. § 1101(a)(43) Conviction for a Controlled Substance Offense, except for a single possession of marijuana less than 30 grams. 8 U.S.C. § 1227(a)(2)(B)(i) Conviction for Firearms Offenses. 8 U.S.C. § 1227(a)(2)(C) HM

Crimes Involving Moral Turpitude (CIMTs) There is no statutory definition for what constitutes a CIMT. Generally, any crime that involves deceit, and/ or theft, intended violence or serious bodily harm. Factors that can make a difference: mens rea, level of physical harm, broadness of the statutory definition. HM

CIMT Examples Not CIMTs (generally): CIMTs: Domestic violence (if no bodily injury) Simple Battery Possession of a Controlled Substance Possession of a Firearm Driving Under the Influence CIMTs: Robbery Theft Fraud Bribery Aggravated assault Child abuse Rape Arson HM

CIMT Petty Offense Exception The immigration petty offense exception states that if a non-citizen is convicted of a single misdemeanor CIMT offense with 6 months or less of jail time, the non-citizen may avoid deportation or at least may qualify for immigration relief. 8 U.S.C. § 1182(a)(2)(A)(ii). HM

Kentucky Identity Theft KRS 514.160 Theft of identity (1) A person is guilty of the theft of the identity of another when he or she knowingly possesses or uses any current or former identifying information of the other person or family member or ancestor of the other person, such as […] , with the intent to represent that he or she is the other person for the purpose of: (a) Depriving the other person of property; (b) Obtaining benefits or property to which he or she would otherwise not be entitled; (c) Making financial or credit transactions using the other person's identity; (d) Avoiding detection; or (e) Commercial or political benefit HM

Kentucky Identity Theft Knowing mens rea, coupled with intent to use ID for unlawful purposes makes this a CIMT. May be an aggravated felony if involves loss of $10k + Negotiate to an alternate charge! HM

Controlled Substance Violations All drug crimes have severe consequences for non-citizens: Any state or federal conviction relating to a controlled substance as defined at 21 U.S.C. § 802 will render a non-citizen removable (with the exception of a single marijuana possession of 30 grams or less). 8 U.S.C. § 1227(a)(2)(B). Any state or federal conviction for a controlled substance violation will render a person inadmissible, including possession of less than 30 grams of marijuana. 8 U.S.C. § 1182(a)(2)(A)(i)(II). DR

Controlled Substance Violations Lawful Permanent Residents (LPRs) v Controlled Substance Violations Lawful Permanent Residents (LPRs) v. Non-LPRs LPRs can seek a waiver of removal if they are convicted of possessory drug offense as long as it is not a drug trafficking offense. NOTE: Multiple possessory drug offenses will not disqualify an LPR from a waiver so long as the LPR is not charged as a recidivist. In addition, an LPR convicted of manufacture and/or delivery of cannabis may still qualify for a waiver (see aggravated felony section below). . DR

Controlled Substance Violations Lawful Permanent Residents (LPRs) v Controlled Substance Violations Lawful Permanent Residents (LPRs) v. Non-LPRs Non-LPRs with drug offenses will be disqualified from most forms of relief, even if the offense is simple possession and involves a small amount only! TIP: Negotiate to a non-drug-related charge, or to a deferred prosecution agreement that does not require an admission to drug-related activity. . DR

Aggravated Felonies The term “aggravated felony” is defined by 8 U.S.C. § 1101(a)(43). This section of law contains a laundry list of offenses that can constitute aggravated felonies. DR

Caveat: Aggravated Felonies Attempt and Conspiracy to commit any of the enumerated aggravated felonies are treated the same as if the person was convicted of the aggravated felony. 8 U.S.C. § 1101(a)(43)(U); See Matter of Richardson, 25 I. & N. Dec. 226 (BIA 2010) DR

Categories of Aggravated Felonies There are two primary ways to categorize aggravated felonies: Charge-Based Aggravated Felonies Sentence-Based Aggravated Felonies DR

CAUTION! Crimes that are misdemeanors under state law may still be aggravated felonies under immigration law! `This may be the case where the nature of the offense alone makes a crime an aggravated felony OR where a misdemeanor offense paired with a 365 day sentence (even if suspended) becomes an aggravated felony. Pre-Trial Diversion Agreements may still result in aggravated felony convictions, if there is a sentence imposed of one year jail time or more! DR

Charge-Based Aggravated Felonies These are convictions that make a non-citizen deportable if the crime meets the definition regardless of sentence. DR

Charge-Based Aggravated Felonies (cont’d) Examples of charge-based or categorical aggravated felonies are: Murder, 8 U.S.C. § 1101(a)(43)(A) Rape, 8 U.S.C. § 1101(a)(43)(A) Sexual Abuse of a Minor, 8 U.S.C. § 1101(a)(43)(A) Drug Trafficking, 8 U.S.C. § 1101(a)(43)(B) Many Firearms and Explosive Materials Offenses, 8 U.S.C. § 1101(a)(43)(C), (E) Offense Relating to Owning, Managing a Prostitution Business, or to Peonage, Slavery, Involuntary Servitude and the Trafficking in Persons, 8 U.S.C. § 1101(a)(43)(K) DR

Charge-Based Aggravated Felonies (cont’d) Fraud or Deceit where the Loss to Victim Exceeds $10,000, 8 U.S.C. § 1101(a)(43)(M). See Nijhawan v. Holder, 557 U.S. 29 (2009) Non-Citizen Smuggling, 8 U.S.C. § 1101(a)(43)(N) Illegal Re-entry [after deportation on the basis of an aggravated felony], 8 U.S.C. § 1101(a)(43)(O) DR

Illicit Drug Trafficking Simple possession drug offenses are not generally aggravated felonies. See Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) Any drug offense that includes elements of buying, selling, manufacturing or delivery will be an “aggravated felony” UNLESS that offense could be committed by transferring a small amount of marijuana to another for no remuneration (and thus could qualify for federal misdemeanor treatment). See Moncrieffe v. Holder, 560 U.S. __ (2013). . HM

Sentence-Based Aggravated Felonies Offenses that make a non-citizen deportable if the crime meets the definition of aggravated felony, and a court orders the requisite sentence The required sentence is usually one year or more of imprisonment HM

Sentence-Based Aggravated Felonies (cont’d) Examples of offenses that require a sentence to at least one year of imprisonment (8 U.S.C. § 1101(a)(48)(B)): Theft, 8 U.S.C. § 1101(a)(43)(G) Burglary, 8 U.S.C. § 1101(a)(43)(G) Receipt of stolen property, 8 U.S.C. § 1101(a)(43)(G) Bribery, 8 U.S.C. § 1101(a)(43)(R) Counterfeiting, 8 U.S.C. § 1101(a)(43)(R) Forgery, 8 U.S.C. § 1101(a)(43)(R) Obstruction of Justice, 8 U.S.C. § 1101(a)(43)(S) Perjury, 8 U.S.C. § 1101(a)(43)(S) Crime of violence, 8 U.S.C. § 1101(a)(43)(F) DR

Crimes of Violence For an offense to constitute a “crime of violence” under immigration law, it must be a COV as defined by 18 U.S.C. § 16. “The term “crime of violence” means— (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, or (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. HM

TIP: Avoiding a Conviction for Crime of Violence Plead to a sentence of less than 1 year. Plead to an offense that involves negligence or recklessness rather than a knowing or intentional act. See Leocal v. Ashcroft, 543 U.S. 1, (2004) (requiring at least a mental state of recklessness for an offense to be a crime of violence under 18 U.S.C. §16); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. 2008) (recklessness is also not sufficient for a COV); United States v. Portela, 469 F.3d 496 (6th Cir. 2006) (same). . HM

TIP (cont’d): NOTE: Even if you are able to obtain a sentence of less than a year, thus avoiding an aggravated felony, your client’s conviction may still be considered a CIMT. Note, however, that more defenses exist for people convicted of CIMTs than of aggravated felonies. HM

Kentucky Assault 508.020 Assault in the second degree. (1) A person is guilty of assault in the second degree when: (a) He intentionally causes serious physical injury to another person; or (b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or (c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument. Sections (1)(a) and (b) are crimes of violence and likely CIMTs (aggravating factors: serious injury or use of a weapon). Section (1)(c) is likely a CIMT but in most circuits not a crime of violence because no intentional conduct. HM

Kentucky Assault 508.030 Assault in the fourth degree. (1) A person is guilty of assault in the fourth degree when: (a) He intentionally or wantonly causes physical injury to another person; or (b) With recklessness he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Immigration judges differ on whether this offense is a CIMT! If not an intentional act, not a crime of violence under the law of most circuits. HM

ELIGIBILITY FOR RELIEF UNDER IMMIGRATION LAW DR 51

Is Your Client a U.S. Citizen? U.S. citizens cannot be removed or detained by immigration. There are cases where a non-citizen may have acquired or derived U.S. citizenship without being aware of it. U.S. citizens are not subject to any removal grounds and cannot be held in immigration custody. DR 52

Cancellation of Removal For non-LPRs For undocumented individuals who have been in the United States for at least 10 years, have no disqualifying crimes and can demonstrate good moral character, and can show exceptional hardship to their USC/LPR spouse, parent, child For LPRs: Requires 7 years of continuous physical presence following an admission to US; 5 years of LPR status; no aggravated felony conviction DR 53

Adjustment of Status A non-citizen may be able to obtain lawful permanent resident status through a family or employment petition for which a visa number is currently available (e.g., petition by USC spouse). In order to seek adjustment of status, except in rare circumstances, the applicant must have entered the United States lawfully, such as on a tourist or student visa. Individuals who are inadmissible may be able to seek a waiver of their grounds of inadmissibility if they can demonstrate hardship to family members. Drug offenses, except for simple possession of marijuana under 30 grams, can never be waived! False claims to U.S. citizenship cannot be waived! DR 54

Protection-Based Relief Asylum Withholding of Removal Convention Against Torture (CAT) Violence Against Women Act (VAWA) U and T Visa (victims of crime and human trafficking) S visa (informants) DR 55

Immigration Bond Non-citizens with prior removal orders are not eligible for bond! In addition, non-citizens with certain types of convictions are not eligible for bond. These include drug offenses, felony CIMT, multiple CIMTs, aggravated felonies. Non-citizens with pending charges and no prior disqualifying offenses will be eligible for bond. It will be a matter of your client’s risk of flight and/or dangerousness. DR 56

Contacting NIJC’s Defenders Initiative Email: defenders@heartlandalliance.org Call: 312-660-1610 Webpage: http://www.immigrantjustice.org/programs/defenders-initiative-0 HM