CJA Training September 2009

 Not a citizen or national of the United States  Lawfully deported  Re-entered  No official permission to return

Most likely, AUSA will hand you:  Your client’s immigration file (“A-file”)  A fast-track plea offer  A waiver of preliminary hearing  A waiver of indictment At the initial appearance, client must waive preliminary hearing to keep the fast track offer.

 Beware immigration detainer  Immigration custody = no credit  “Hail Mary”

You have THREE WEEKS from the initial appearance to accept the fast track or reject it.

 Acquired Citizenship Your client was a citizen at birth because of his parent(s)’s citizenship  Derivative Citizenship Your client became a citizen while a minor because his parent(s) naturalized**  The Government Can’t Prove Alienage BRD

 Eligible for Benefit + Plausible Ground for Relief  Not Deportable for Facts Alleged  Not Deportable Under the Law  Requirements for Successful Collateral Attack 1326(d)(1) Exhaustion of Administrative Remedies Deprivation of Meaningful Opportunity for Judicial Review Fundamentally Unfair Proceeding

 Notice to Appear/OSC  Order of Immigration Judge  Warrant of Removal  Sworn Statement of your Client  Certificate of Non-Existence of Record  Birth Certificate Documents  Prior Applications for Immigration Benefits  Record of Deportable Alien (Form I-213)  Rap Sheet/Conviction Documents

“Elements”→ “Charge” →

1996?

 Did the elements add up to the charge? For example, was my client’s burglary really an aggravated felony?  If this was the charge, what immigration benefits was my client still eligible for? Voluntary departure? Adjustment of status? 212(c) waiver?

Benefits Considered?

Who supposedly witnessed? When was he physically removed and from where?

Keep in mind: Many times the fingerprint and picture are done before physical removal.

“Where were you born?” A: Puebla, Mexico But consider whether his admission is reliable if he doesn’t know his father, his mother’s deceased, and there’s no birth certificate.

 When did your client say he came back to the US and how?

They checked. Your client didn’t ask the AG’s permission to come back.

Not every person who is deported goes through the process. When is it allowed?  Expedited Removal – 8 U.S.C. § 238  Reinstatement of Removal – 8 U.S.C. § 241(a)(5)

 Parents/Grandparents legal status Was anyone a citizen before client was 18?  Immigration history What happened at the proceedings? Anything strange?  Social history What are the mitigating facts about your client?

Received the Fast Track Accept the Fast Track Plead OpenLitigate Without a defense With a defense

 4-level downward departure + acceptance + low end  11(c)(1)(c) – the Gov’t can’t ask for anything higher  Lock in the offense level

Use it when  You have mitigation arguments  You can’t get the government to agree that a certain crime isn’t an aggravated felony, crime of violence, etc.  Client does not like the fast track

Received the Fast Track Accept the Fast Track Plead OpenLitigate Without a defense With a defense

10.I already did my time for that, isn’t that double jeopardy? 9.But what about the fact that my family is here? Does that count at sentencing? 8.I heard they can only give me two years for that? 7.I hear President Obama is going to change the law so you only do 50% on illegal entry cases 6.My cellie has a worse jacket and he’s getting 12 months. 5.The Judge can still go lower, right? 4.You’re not going to even try to negotiate anything better for me? 3.I didn’t even do anything wrong this time. 2.Are you even trying to help me? 1.(After the plea) So you’re going to ask for less time right?

Mathew

 Notice to Appear/OSC  Order of Immigration Judge  Warrant of Removal  Sworn Statement of your Client  Certificate of Non-Existence of Record  Birth Certificate Documents  Prior Applications for Immigration Benefits  Record of Deportable Alien (Form I-213)  Rap Sheet/Conviction Documents

 Acquired Citizenship

 Permanent Residence Re-established

 U.S. Marine – Now Naturalized Citizen

 Client Eligible for 212(c)  Leaving Scene of Accident Conviction not a CIMT  Won Motion, But Wrongfully Removed without Rehearing  Paroled Back into the U.S.  Granted 212(c) Waiver