1. Effects of Criminal Convictions on Your Client’s Immigration Status Presentation to Virginia Beach Bar Association August 3, 2016 By Valverde & Rowell, P.C.

3. Legal Immigration Status Look at this first Look at this first Consequences of criminal convictions will depend on the status of your client Consequences of criminal convictions will depend on the status of your client How did you enter this country and what is your current immigration status? How did you enter this country and what is your current immigration status?

4. Legal Immigration Status U.S. Citizen – Don’t need to worry about immigration consequences U.S. Citizen – Don’t need to worry about immigration consequences Lawful Permanent Resident Lawful Permanent Resident Non-Immigrant Visa Non-Immigrant Visa Temporary Protected Status (TPS) Temporary Protected Status (TPS) Deferred Action for Childhood Arrivals (DACA) Deferred Action for Childhood Arrivals (DACA) Asylees Asylees

5. Who is a U.S. Citizen? Born on U.S. soil or U.S. territories Born on U.S. soil or U.S. territories 14 th Amendment - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 14 th Amendment - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) Naturalized Naturalized First have to be a lawful permanent resident for a certain amount of time First have to be a lawful permanent resident for a certain amount of time

6. Who is a U.S. Citizen? Naturalization Naturalization 5 years as a lawful permanent resident 5 years as a lawful permanent resident 3 years if married to and living with a US citizen 3 years if married to and living with a US citizen Physically present in US for 2.5 years Physically present in US for 2.5 years 1.5 years if married to and living with a US citizen 1.5 years if married to and living with a US citizen Good moral character Good moral character 1 year of military service – residence and presence requirements are waived 1 year of military service – residence and presence requirements are waived

7. Who is a U.S. Citizen? Born to two U.S. citizen parent(s) abroad Born to two U.S. citizen parent(s) abroad One parent is a US citizen married to a non-US citizen One parent is a US citizen married to a non-US citizen US citizen parent physically present 5 years in the US, at least two after the age of 14, before child’s birth US citizen parent physically present 5 years in the US, at least two after the age of 14, before child’s birth

8. Who is a U.S. Citizen? One parent is a US citizen, child born out of wedlock One parent is a US citizen, child born out of wedlock USC Mother continuously present in the US for one year USC Mother continuously present in the US for one year USC Father –DNA test, financial support to U18, paternity is established through legitimation, acknowledgment, or court before 18 th birthday USC Father –DNA test, financial support to U18, paternity is established through legitimation, acknowledgment, or court before 18 th birthday Child admitted as a lawful permanent resident and residing with USC parent Child admitted as a lawful permanent resident and residing with USC parent USC parent(s) naturalize while child is a lawful permanent resident while under 18 USC parent(s) naturalize while child is a lawful permanent resident while under 18

9. Lawful Permanent Residence Aka “green card” Aka “green card” Obtained through a family or employer relationship Obtained through a family or employer relationship Also, asylees, victims of domestic abuse at hands of resident or US citizen spouse and Special Immigrant Juvenile Status Also, asylees, victims of domestic abuse at hands of resident or US citizen spouse and Special Immigrant Juvenile Status

10. Non-Immigrant Visa Various Types – B-2 Visitor, F-1 Student, H Temp. Worker, J Exchange Visitor, etc. Various Types – B-2 Visitor, F-1 Student, H Temp. Worker, J Exchange Visitor, etc. Visa itself does not grant lawful status Visa itself does not grant lawful status Only allows a person the privilege to present themselves to Customs to be admitted into the US Only allows a person the privilege to present themselves to Customs to be admitted into the US Expiration date on Visa does not equate to lawful status Expiration date on Visa does not equate to lawful status

12. I-94 Expiration on I-94 determines authorized lawful status Expiration on I-94 determines authorized lawful status Now available online at https://i94.cbp.dhs.gov/I94/consent.html Now available online at https://i94.cbp.dhs.gov/I94/consent.html

13. Temporary Protected Status Nationals of El Salvador, Honduras, Nicaragua, Haiti, etc. who were present in the US during a natural disaster or civil war in the home country Nationals of El Salvador, Honduras, Nicaragua, Haiti, etc. who were present in the US during a natural disaster or civil war in the home country Have to have registered during the initial registration period and renew TPS every re-registration period Have to have registered during the initial registration period and renew TPS every re-registration period

14. Deferred Action for Childhood Arrivals “DACA” Not a lawful status per se but are lawfully present in the US Not a lawful status per se but are lawfully present in the US Available for individuals who entered the US while under 16, before June 15, 2007, and have resided in the US continuously since then Available for individuals who entered the US while under 16, before June 15, 2007, and have resided in the US continuously since then In school or graduated from US high school In school or graduated from US high school

15. If Trump is elected... Bye Bye DACA! Bye Bye DACA!

16. What if no lawful status? Can be removed from the country regardless Can be removed from the country regardless However, can still look at consequences for future possible future applications However, can still look at consequences for future possible future applications

17. How can my client be prevented from obtaining lawful immigration status or how can it be taken away?

18. Inadmissibility “Inadmissibility” and “removability” are technical terms in immigration law “Inadmissibility” and “removability” are technical terms in immigration law Inadmissibility – think the legal grounds the government can use to deny your client a visa or entry into the U.S. Inadmissibility – think the legal grounds the government can use to deny your client a visa or entry into the U.S. INA § 212; 8 USC § 1182 INA § 212; 8 USC § 1182

19. Inadmissibility Trump’s proposed Muslim ban would be a new ground of inadmissibility Trump’s proposed Muslim ban would be a new ground of inadmissibility

20. Removability Legal grounds the government can deport or kick your client out of the U.S. after he/she has been legally admitted into the country Legal grounds the government can deport or kick your client out of the U.S. after he/she has been legally admitted into the country INA § 237; 8 USC § 1227 INA § 237; 8 USC § 1227

21. Inadmissibility v. Removability Easier to establish inadmissibility Easier to establish inadmissibility Conviction may not be required Conviction may not be required Burden of proof is on the intending immigrant Burden of proof is on the intending immigrant More difficult to establish removability More difficult to establish removability Conviction is usually required Conviction is usually required Burden of proof is on the government Burden of proof is on the government

22. Criminal convictions can make your client inadmissible or removable.

23. “Conviction” A formal judgment of guilt by a court OR A formal judgment of guilt by a court OR If adjudication of guilt has been withheld (i.e. no judgment of conviction entered) there is If adjudication of guilt has been withheld (i.e. no judgment of conviction entered) there is Guilty plea or plea of nolo contendere; Guilty plea or plea of nolo contendere; Admission of sufficient facts; OR Admission of sufficient facts; OR Judge or jury has found guilt; AND Judge or jury has found guilt; AND Judge has ordered some kind of punishment, penalty, or restraint on liberty Judge has ordered some kind of punishment, penalty, or restraint on liberty INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A) INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A) “some kind of punishment, penalty, or restraint” can be probation or paying a fine, even court costs “some kind of punishment, penalty, or restraint” can be probation or paying a fine, even court costs Convictions on appeal by right are not “convictions” because not final Convictions on appeal by right are not “convictions” because not final Example conviction on appeal from General District Court to Circuit Court not a “conviction.” Example conviction on appeal from General District Court to Circuit Court not a “conviction.”

24. Tips for Defense Attorneys Deferred adjudications Deferred adjudications Avoid pleading guilty or finding of guilty in the warrant/record. Otherwise will still be considered a “conviction” under immigration law. Avoid pleading guilty or finding of guilty in the warrant/record. Otherwise will still be considered a “conviction” under immigration law. Still may not be enough because First Offender provisions in Va. Code state: Still may not be enough because First Offender provisions in Va. Code state: “... if the facts found by the court would justify a finding of guilt...” “... if the facts found by the court would justify a finding of guilt...” Examples: Va. Code § 18.2-251 (marijuana possession) and § 18.2-57.2 (domestic assault) Examples: Va. Code § 18.2-251 (marijuana possession) and § 18.2-57.2 (domestic assault)

25. “Sentence” Includes the period of incarceration or confinement ordered by a court regardless of any suspension in whole or in part. INA § 101(a)(48)(B); 8 U.S.C. § 1101(a)(48)(B). Includes the period of incarceration or confinement ordered by a court regardless of any suspension in whole or in part. INA § 101(a)(48)(B); 8 U.S.C. § 1101(a)(48)(B).

26. Juvenile Convictions Convictions of minors in juvenile and domestic relations court are not convictions for immigration purposes. Matter of Devison, 22 I&N Dec. 1622 (BIA 2000). Convictions of minors in juvenile and domestic relations court are not convictions for immigration purposes. Matter of Devison, 22 I&N Dec. 1622 (BIA 2000). However, if juvenile transferred to adult court then it is a conviction. However, if juvenile transferred to adult court then it is a conviction.

27. Note: Sometimes Adverse Immigration Consequences Do Not Require Convictions Some grounds of inadmissibility/removability do not require a “conviction” to trigger adverse immigration consequences: Some grounds of inadmissibility/removability do not require a “conviction” to trigger adverse immigration consequences: Drug trafficking (i.e. drug dealing) Drug trafficking (i.e. drug dealing) Drug abuser or drug addict Drug abuser or drug addict Prostitution Prostitution Violations of protective orders Violations of protective orders False claim to U.S. Citizenship False claim to U.S. Citizenship

28. Also… Many immigration benefits are discretionary Many immigration benefits are discretionary The government can still use its discretion to deny immigration benefits The government can still use its discretion to deny immigration benefits

29. How Does ICE Pick Up My Client?

30. Immigration & Customs Enforcement How does ICE take a non-citizen into custody? How does ICE take a non-citizen into custody? ICE issues detainer on non-citizen in state or federal prison ICE issues detainer on non-citizen in state or federal prison Reporting to probation officer (sometimes) Reporting to probation officer (sometimes) Non-citizen files an immigration application Non-citizen files an immigration application Reentering the country Reentering the country Local police stops and arrests Local police stops and arrests

31. Virginia Code § 19.2-83.2 Whenever any person is taken into custody at any jail, the sheriff or other officer in charge of such facility shall Whenever any person is taken into custody at any jail, the sheriff or other officer in charge of such facility shall inquire as to whether the person (i) was born in a country other than the United States, and (ii) is a citizen of a country other than the United States. inquire as to whether the person (i) was born in a country other than the United States, and (ii) is a citizen of a country other than the United States.

32. Virginia Code § 19.2-83.2 The sheriff or other officer in charge of such facility shall make an immigration alien query to the Law Enforcement Support Center of ICE for any person who The sheriff or other officer in charge of such facility shall make an immigration alien query to the Law Enforcement Support Center of ICE for any person who (i) was born in a country other than the United States, and (ii) is a citizen of a country other than the United States, or for whom the answer to (i) or (ii) is unknown. (i) was born in a country other than the United States, and (ii) is a citizen of a country other than the United States, or for whom the answer to (i) or (ii) is unknown.

33. ICE Detainers Explained 8 C.F.R. § 287.7(d) 8 C.F.R. § 287.7(d) Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 HOURS, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.

34. ICE Detainers

35. ICE Detainer Under 8 C.F.R. § 287.7(d), local jail cannot hold individual under ICE detainer more than 48 hours after its authority to detain has terminated, not counting weekends and holidays. Under 8 C.F.R. § 287.7(d), local jail cannot hold individual under ICE detainer more than 48 hours after its authority to detain has terminated, not counting weekends and holidays. 48 hours is triggered when person posts bond or completes case/sentence. 48 hours is triggered when person posts bond or completes case/sentence. Detention beyond the 48 hours is unlawful Detention beyond the 48 hours is unlawful Habeas petition Habeas petition Liability false imprisonment Liability false imprisonment

36. ICE Detainer Policy 12/21/2012 Memo – ICE should issue detainer only when 12/21/2012 Memo – ICE should issue detainer only when Felony offense Felony offense Three misdemeanors Three misdemeanors Outstanding order of removal Outstanding order of removal DUI, violence, abuse, controlled substance, fleeing the scene of accident, firearm, other significant threat to public safety... DUI, violence, abuse, controlled substance, fleeing the scene of accident, firearm, other significant threat to public safety...

37. Crimmigration Consequences Deportation Deportation Mandatory Detention by Immigration with no bond Mandatory Detention by Immigration with no bond Ineligibility for U.S. citizenship Ineligibility for U.S. citizenship Ineligibility for a “green card” and immigrant and non-immigrant visas Ineligibility for a “green card” and immigrant and non-immigrant visas Eligibility for relief from deportation or waivers Eligibility for relief from deportation or waivers Possible lifetime separation from family and friends Possible lifetime separation from family and friends

38. Will my client be released from Immigration Custody?

39. What happens to my client after ICE takes him into custody? ICE Makes initial bond decision Dept of Justice - Bond Hearing Appeal an ICE no bond decision to Immigration Judge Master Calendar Hearing ICE initiates proceedings with Notice to Appear Immigration Judge determines removability Merits Hearing Immigration Judge holds trial on application for relief from removal

40. Mandatory Immigration Detention Under INA § 236(c) Immigration Judge cannot grant bond if defendant has been convicted of certain crimes if inadmissible or deportable for Immigration Judge cannot grant bond if defendant has been convicted of certain crimes if inadmissible or deportable for Controlled substance violations Controlled substance violations Crimes involving moral turpitude Crimes involving moral turpitude Aggravated felonies Aggravated felonies Firearms offenses Firearms offenses

41. Drug Offenses Almost any drug offense makes a person inadmissible or removable, regardless of sentence Almost any drug offense makes a person inadmissible or removable, regardless of sentence For removability, exception for simple possession 30 grams or less of marijuana For removability, exception for simple possession 30 grams or less of marijuana For inadmissibility (someone applying for a visa abroad or applying for permanent residence in the U.S.), a conviction is not necessary For inadmissibility (someone applying for a visa abroad or applying for permanent residence in the U.S.), a conviction is not necessary Can be an admission that he/she has committed an act that is punishable under any law relating to a controlled substance. INA § 212(a)(2)(A)(i)(II). Can be an admission that he/she has committed an act that is punishable under any law relating to a controlled substance. INA § 212(a)(2)(A)(i)(II). Officer can have “reason to believe” that non-citizen has been involved in drug trafficking. INA § 212(a)(2)(C)(i). Officer can have “reason to believe” that non-citizen has been involved in drug trafficking. INA § 212(a)(2)(C)(i).

42. Drug Offenses For removability, any non-citizen who after admission is convicted of violating (or conspiracy or attempt to violate) any law relating to a “controlled substance.” INA § 237(a)(2)(B)(i). For removability, any non-citizen who after admission is convicted of violating (or conspiracy or attempt to violate) any law relating to a “controlled substance.” INA § 237(a)(2)(B)(i). Even possession of drug paraphernalia could be a crime relating to a controlled substance if relates to a substance listed in the federal schedule. See Mellouli v. Lynch, ___ U.S. ____, No. 13-1034 (June 1, 2015); Matter of Pacheco- Ventura (unpublished BIA decision 2003). Even possession of drug paraphernalia could be a crime relating to a controlled substance if relates to a substance listed in the federal schedule. See Mellouli v. Lynch, ___ U.S. ____, No. 13-1034 (June 1, 2015); Matter of Pacheco- Ventura (unpublished BIA decision 2003).

43. Drug Offenses Not removable for a drug conviction if only a single offense for marijuana possession of 30 grams or less. INA § 237(a)(2)(B)(i). Not removable for a drug conviction if only a single offense for marijuana possession of 30 grams or less. INA § 237(a)(2)(B)(i). Tip: Try to get the amount in the record if less than 30 grams. Tip: Try to get the amount in the record if less than 30 grams. Not inadmissible or removable if conviction does not relate to a federally “controlled substance” as defined in 18 U.S.C. § 102. Mellouli v. Lynch, ___ U.S. ____, No. 13-1034 (June 1, 2015); Matter of Paulus, 11 I&N Dec. 211 (BIA 1965). Not inadmissible or removable if conviction does not relate to a federally “controlled substance” as defined in 18 U.S.C. § 102. Mellouli v. Lynch, ___ U.S. ____, No. 13-1034 (June 1, 2015); Matter of Paulus, 11 I&N Dec. 211 (BIA 1965).

44. Aggravated Felonies Don’t let the name fool you – a misdemeanor under state law can still be an aggravated felony. Don’t let the name fool you – a misdemeanor under state law can still be an aggravated felony. Not all aggravated felonies have one year sentence triggers Not all aggravated felonies have one year sentence triggers Can be “kiss of death” for a non-citizen Can be “kiss of death” for a non-citizen Only applies to removability – non-citizens who have been inspected and entered under a legal visa Only applies to removability – non-citizens who have been inspected and entered under a legal visa INA § 101(a)(43) defines 19 types of aggravated felonies INA § 101(a)(43) defines 19 types of aggravated felonies

45. Aggravated Felonies Rape, murder, and sexual abuse of a minor Rape, murder, and sexual abuse of a minor Sexual abuse of a minor does not require contact. Indecent exposure enough. Matter of Rodriguez- Rodriguez, 22 I&N Dec. 991 (BIA 1999). Sexual abuse of a minor does not require contact. Indecent exposure enough. Matter of Rodriguez- Rodriguez, 22 I&N Dec. 991 (BIA 1999). Solicitation of minor. Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. 2005) (Illinois conviction of misdemeanor solicitation to engage in a sexual act is sexual abuse of a minor where criminal complaint (and no other document) showed victim under the age of 18) Solicitation of minor. Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. 2005) (Illinois conviction of misdemeanor solicitation to engage in a sexual act is sexual abuse of a minor where criminal complaint (and no other document) showed victim under the age of 18) Solicitation of undercover adult officer posing as child on internet. Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. 2005) Solicitation of undercover adult officer posing as child on internet. Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. 2005)

46. Aggravated Felonies Illicit trafficking in a controlled substance, including a “drug trafficking crime” defined in 18 USC § 924(c) Illicit trafficking in a controlled substance, including a “drug trafficking crime” defined in 18 USC § 924(c) Any drug conviction where the statute has an element of sale or distribution, regardless of sentence could be an aggravated felony Any drug conviction where the statute has an element of sale or distribution, regardless of sentence could be an aggravated felony Any federal conviction for possession that is a felony Any federal conviction for possession that is a felony BUT state felony possession that would not be a felony under federal law NOT an ag felon, Lopez v. Gonzalez, 125 S. Ct. 625 (2006) unless for flunitrazepam (date rape) or >5g of crack. BUT state felony possession that would not be a felony under federal law NOT an ag felon, Lopez v. Gonzalez, 125 S. Ct. 625 (2006) unless for flunitrazepam (date rape) or >5g of crack. A second possession conviction may be an ag felony if it would be a felony under federal statute as repeat offender A second possession conviction may be an ag felony if it would be a felony under federal statute as repeat offender PWID marijuana not ag felony if statute covers sharing of a small amount of marijuana with no renumeration, e.g. Va. Code §. Moncreiffe v. Holder, 133 S.Ct. 1678 (2013). PWID marijuana not ag felony if statute covers sharing of a small amount of marijuana with no renumeration, e.g. Va. Code § 18.2-248.1(a). Moncreiffe v. Holder, 133 S.Ct. 1678 (2013).

47. Aggravated Felonies Crime of violence and sentenced to at least one year imprisonment Crime of violence and sentenced to at least one year imprisonment Defined in 18 USC § 16 Defined in 18 USC § 16 (a) Element of the use, attempted use, or threatened use of force against person or property or (a) Element of the use, attempted use, or threatened use of force against person or property or (b) A felony that involved a substantial risk that force will be used in commission of offense (b) A felony that involved a substantial risk that force will be used in commission of offense Must involve active force and a higher degree of intent than mere negligent or accidental conduct. Leocal v. Ashcroft, 543 U.S. 1 (2004) Must involve active force and a higher degree of intent than mere negligent or accidental conduct. Leocal v. Ashcroft, 543 U.S. 1 (2004) Look at statute of conviction for required mental state Look at statute of conviction for required mental state

48. Aggravated Felonies Not Crimes of Violence Not Crimes of Violence Simple involuntary manslaughter under Va. Code § 18.2-36. Bejerano-Urrutia v. Gonzalez, 413 F.3d 444 (4th Cir. 2005). Simple involuntary manslaughter under Va. Code § 18.2-36. Bejerano-Urrutia v. Gonzalez, 413 F.3d 444 (4th Cir. 2005). DUI and DUI causing bodily injury. Leocal v. Ashcroft. DUI and DUI causing bodily injury. Leocal v. Ashcroft. Assault recklessly causing serious physical injury by means of deadly weapon or dangerous instrument. Garcia v. Gonzalez, (4th Cir. 2006). Assault recklessly causing serious physical injury by means of deadly weapon or dangerous instrument. Garcia v. Gonzalez, (4th Cir. 2006). Va. domestic violence not categorically a COV. Va. domestic violence not categorically a COV. Matter of Velasquez, 25 I&N Dec., 278 (2010) Crimes of Violence Crimes of Violence Misdemeanor sexual battery under § 18.2-67.4. Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000). Misdemeanor sexual battery under § 18.2-67.4. Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000).

49. Aggravated Felonies Theft or burglary offense for which term of imprisonment at least one year Theft or burglary offense for which term of imprisonment at least one year Fourth Circuit said Virginia grand larceny conviction is not an aggravated felony theft offense. Omargharib v Holder, 775 F.3d 192 (2014). Note: It can still be a CIMT. Fourth Circuit said Virginia grand larceny conviction is not an aggravated felony theft offense. Omargharib v Holder, 775 F.3d 192 (2014). Note: It can still be a CIMT. Child pornography Child pornography Owning/managing prostitution business/human trafficking Owning/managing prostitution business/human trafficking Obstruction of justice/perjury Obstruction of justice/perjury Attempt or conspiracy to commit any of the enumerated aggravated felonies Attempt or conspiracy to commit any of the enumerated aggravated felonies AND SEVERAL MORE... AND SEVERAL MORE...

50. Crimes Involving Moral Turpitude (“CIMTs”) For inadmissibility (person applying for visa outside the U.S. or permanent residence in the U.S.), one CIMT or an attempt or conspiracy to commit a CIMT For inadmissibility (person applying for visa outside the U.S. or permanent residence in the U.S.), one CIMT or an attempt or conspiracy to commit a CIMT Exceptions: Exceptions: Crime committed under 18 and 5 years (from release from confinement) prior to date of application or admission Crime committed under 18 and 5 years (from release from confinement) prior to date of application or admission Max penalty of crime one year or less and actually sentenced to 6 months or less (“petty offense exception”) Max penalty of crime one year or less and actually sentenced to 6 months or less (“petty offense exception”) For removability, For removability, One CIMT within 5 years of admission and sentence one year or more may be imposed One CIMT within 5 years of admission and sentence one year or more may be imposed Two CIMTs not arising out of a single scheme of criminal misconduct regardless of sentence or imprisonment Two CIMTs not arising out of a single scheme of criminal misconduct regardless of sentence or imprisonment

51. CIMTs Defined by case law not statute Defined by case law not statute “A nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality....” Matter of Danesh, 19 I&N Dec. 669 (BIA 1988). “A nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality....” Matter of Danesh, 19 I&N Dec. 669 (BIA 1988). Does not matter whether a felony or misdemeanor Does not matter whether a felony or misdemeanor Start by looking at the elements required for conviction Start by looking at the elements required for conviction

52. CIMTs Test: Does the statute contain an element reflecting “a vicious motive or corrupt mind?” Matter of Franklin, 20 I&N Dec. 867 (BIA 1994). Test: Does the statute contain an element reflecting “a vicious motive or corrupt mind?” Matter of Franklin, 20 I&N Dec. 867 (BIA 1994).

53. CIMTs Simple assault and battery usually not CIMT. Matter of Fualauu, 21 I&N Dec. 475 (BIA 1996). Simple assault and battery usually not CIMT. Matter of Fualauu, 21 I&N Dec. 475 (BIA 1996). However, assault with aggravating circumstances is can be a CIMT, e.g. police officer, deadly weapon, injury to family member. However, assault with aggravating circumstances is can be a CIMT, e.g. police officer, deadly weapon, injury to family member. Possession of firearm not CIMT. Matter of Granados, 16 I&N Dec. 726 (BIA 1979). Possession of firearm not CIMT. Matter of Granados, 16 I&N Dec. 726 (BIA 1979). However, use of a firearm under Va. Code 18.2-53.1 is a CIMT. United States v. Brown, 127 F.Supp.2d 392 (WDNY 2001). However, use of a firearm under Va. Code 18.2-53.1 is a CIMT. United States v. Brown, 127 F.Supp.2d 392 (WDNY 2001). Theft offenses are CIMTs – intent to deprive owner Theft offenses are CIMTs – intent to deprive owner Maybe Va. 46.2-894 -failure to stop after accident Maybe Va. 46.2-894 -failure to stop after accident

54. Also Not CIMTs Va. 18.2-102 (joyriding) Va. 18.2-102 (joyriding) Va. 18.2-89 (burglary, where record reflects that B&E was not done with intent to commit CIMT – ie. B&E with intent to trespass) Va. 18.2-89 (burglary, where record reflects that B&E was not done with intent to commit CIMT – ie. B&E with intent to trespass) DUI and motor vehicle offenses DUI and motor vehicle offenses Va. 18.2-266 (DUI) Va. 18.2-266 (DUI) Va. 46.2-862 (reckless driving) Va. 46.2-862 (reckless driving)

55. CIMTs False Pretenses/Fraud is CIMT– intent to defraud False Pretenses/Fraud is CIMT– intent to defraud Burglary and robbery are CIMTS – intent to commit a felony or steal. United States v. Brown, 127 F.Supp.2d 392 (WDNY 2001). Burglary and robbery are CIMTS – intent to commit a felony or steal. United States v. Brown, 127 F.Supp.2d 392 (WDNY 2001). False police report is a CIMT – intent to mislead False police report is a CIMT – intent to mislead Sex offenses are CIMTs Sex offenses are CIMTs Controlled substance offenses with an intent or knowledge of manufacture or distribution a CIMT. Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997). Controlled substance offenses with an intent or knowledge of manufacture or distribution a CIMT. Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997).

56. Domestic Violence Not a ground of inadmissibility Not a ground of inadmissibility Removable for domestic violence, stalking, child abuse, child neglect, or child abandonment conviction. INA § 237(a)(2)(E)(i). Removable for domestic violence, stalking, child abuse, child neglect, or child abandonment conviction. INA § 237(a)(2)(E)(i). “Crime of domestic violence” is any crime of violence defined in 18 U.S.C. § 16 against a person by a current or former spouse, individual w/ a child in common, cohabiting or cohabited with person as a spouse, individual similarly situated as a spouse under the state law, or any individual against a person protected by federal, state, or local domestic violence laws. Id. “Crime of domestic violence” is any crime of violence defined in 18 U.S.C. § 16 against a person by a current or former spouse, individual w/ a child in common, cohabiting or cohabited with person as a spouse, individual similarly situated as a spouse under the state law, or any individual against a person protected by federal, state, or local domestic violence laws. Id.

57. Domestic Violence Removable for violation of protective order that protects against credible threats of violence, repeated harassment, or bodily injury. § 237(a)(2)(E)(ii). Removable for violation of protective order that protects against credible threats of violence, repeated harassment, or bodily injury. § 237(a)(2)(E)(ii). Domestic violence conviction is not categorically a CIMT. Matter of Sejas, 24 I&N Dec. 246 (BIA 2007). Domestic violence conviction is not categorically a CIMT. Matter of Sejas, 24 I&N Dec. 246 (BIA 2007). Not categorically a crime of domestic violence or crime of violence ag felony if sentenced to one year or more. Matter of Velasquez, 25 I&N Dec. (BIA 2010) Not categorically a crime of domestic violence or crime of violence ag felony if sentenced to one year or more. Matter of Velasquez, 25 I&N Dec. (BIA 2010)

58. Firearms Offenses Not a ground of inadmissibility Not a ground of inadmissibility Removable for conviction of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying (or attempt or conspiracy) a firearm or destructive device. INA § 237(a)(2)(C). Removable for conviction of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying (or attempt or conspiracy) a firearm or destructive device. INA § 237(a)(2)(C). Firearm defined in 18 U.S.C. § 921(a). Firearm defined in 18 U.S.C. § 921(a). Statute of conviction must specify a firearm is involved. Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992). Statute of conviction must specify a firearm is involved. Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992).

59. Categorical Approach Strict categorical approach to determine whether conviction triggers immigration consequences. Descamps v. United States, 133 S.Ct. 2276 (2013); Mellouli v. Lynch, ___ U.S. ____, No. 13-1034 (June 1, 2015). Strict categorical approach to determine whether conviction triggers immigration consequences. Descamps v. United States, 133 S.Ct. 2276 (2013); Mellouli v. Lynch, ___ U.S. ____, No. 13-1034 (June 1, 2015). First look at the language of the federal/state statute of conviction taken at its minimum and see whether it matches a ground of inadmissibility or removability. First look at the language of the federal/state statute of conviction taken at its minimum and see whether it matches a ground of inadmissibility or removability. The actual conduct leading to the conviction is irrelevant. The actual conduct leading to the conviction is irrelevant. Look to see whether all the conduct criminalized under the statute fits a ground of inadmissibility or removability. Look to see whether all the conduct criminalized under the statute fits a ground of inadmissibility or removability.

60. Modified Categorical Approach When the statute of conviction defines more than one offense, the categorical analysis cannot be performed until it is determined which of the offenses the individual was convicted of. When the statute of conviction defines more than one offense, the categorical analysis cannot be performed until it is determined which of the offenses the individual was convicted of. The court can look at the “record of conviction” - consists of charging document, indictment, information, plea, verdict, and sentence not police report. Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996) The court can look at the “record of conviction” - consists of charging document, indictment, information, plea, verdict, and sentence not police report. Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996)

61. What about DUIs?

62. DUI Not a ground of inadmissibility or removability per se Not a ground of inadmissibility or removability per se However, may cause inadmissibility issues under INA § 212(a)(1) public health grounds if DUI is recent or multiple DUIs However, may cause inadmissibility issues under INA § 212(a)(1) public health grounds if DUI is recent or multiple DUIs

63. Defense Strategies Negotiate sentence under one year (if that Matters for immigration): Waive credit for time served Waive credit for time served Have client spend more time in jail instead of having suspended sentence over one year Have client spend more time in jail instead of having suspended sentence over one year Have client serve more straight probation Have client serve more straight probation

64. Defense Strategies To the extent practicable ensure that the record does not reflect an inadmissible/ deportable offense – what’s in the record: Charging document Charging document Official record of judgment and conviction Official record of judgment and conviction Official record of plea (including transcript) Official record of plea (including transcript) Official record of verdict Official record of verdict Official record of sentence Official record of sentence

65. Defense Strategies Modify the record of conviction – ask the prosecutor to issue new charging document Modify the record of conviction – ask the prosecutor to issue new charging document Example: Va. 18.2-89 is not a CIMT unless the record reflects B&E with intent to commit a CIMT; ask prosecutor to amend charge to B&E with intent to commit trespass Example: Va. 18.2-89 is not a CIMT unless the record reflects B&E with intent to commit a CIMT; ask prosecutor to amend charge to B&E with intent to commit trespass Plead to a another offense that does not trigger adverse consequences Plead to a another offense that does not trigger adverse consequences

66. Vacating a “Conviction” For conviction to be vacated for immigration purposes it must be vacated on basis of substantive or procedural defect NOT for rehabilitative purposes or to ease immigration hardships. Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) For conviction to be vacated for immigration purposes it must be vacated on basis of substantive or procedural defect NOT for rehabilitative purposes or to ease immigration hardships. Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) Substantive or procedural defect must have existed at the time of conviction Substantive or procedural defect must have existed at the time of conviction

67. Vacating a “Conviction” Motion to vacate conviction must be based on legal defect existing at time of conviction Motion to vacate conviction must be based on legal defect existing at time of conviction E.g. motion to withdraw guilty plea, motion to vacate conviction, habeas corpus, coram nobis, audita querela E.g. motion to withdraw guilty plea, motion to vacate conviction, habeas corpus, coram nobis, audita querela Coram nobis and audita querela limited in Virginia. Commonwealth v. Morris, 281 Va. 20 (2011) Coram nobis and audita querela limited in Virginia. Commonwealth v. Morris, 281 Va. 20 (2011) Record should not indicate that it was vacated to avoid adverse immigration consequences. Record should not indicate that it was vacated to avoid adverse immigration consequences.

68. Modifying a “Sentence” Court decision to reduce a sentence nunc pro tunc to less than one year is given full faith and credit by the immigration courts, even if it is to avoid adverse immigration consequences. Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005). Court decision to reduce a sentence nunc pro tunc to less than one year is given full faith and credit by the immigration courts, even if it is to avoid adverse immigration consequences. Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005). Could also use to qualify conviction for “petty offense exception” Could also use to qualify conviction for “petty offense exception” E.g. Commonwealth v. Mohamed, 71 Va. Cir. 383 (Arlington County 2006). E.g. Commonwealth v. Mohamed, 71 Va. Cir. 383 (Arlington County 2006).

69. Pardons Full and unconditional pardons from the governor will remove crimmigration consequences. Full and unconditional pardons from the governor will remove crimmigration consequences. In Virginia it must be an “absolute pardon.” Simple or conditional pardon not enough. In Virginia it must be an “absolute pardon.” Simple or conditional pardon not enough.

70. Padilla v. Kentucky, 559 U.S. 356 (2010) Ineffective Assistance of Counsel - Should defense counsel advise defendant of possible adverse immigration consequences if they plead guilty? Ineffective Assistance of Counsel - Should defense counsel advise defendant of possible adverse immigration consequences if they plead guilty? Supreme Court held yes if upon reading of immigration statute it is fairly succinct and straightforward that client will face deportation. If not succinct and straightforward, then only warning of possibility of deportation sufficient. Supreme Court held yes if upon reading of immigration statute it is fairly succinct and straightforward that client will face deportation. If not succinct and straightforward, then only warning of possibility of deportation sufficient.

71. Zemene v. Clark, 768 S.E.2d 684 (Va. 2015) Defense attorney’s performance fell below Strickland standard because failed to: Defense attorney’s performance fell below Strickland standard because failed to: Learn the “precise nature” of client’s immigration status Learn the “precise nature” of client’s immigration status Determine “potential negative consequences” relative to immigration status under plea Determine “potential negative consequences” relative to immigration status under plea Broach subject of immigration consequences to Commonwealth Attorney in plea negotiations Broach subject of immigration consequences to Commonwealth Attorney in plea negotiations Discuss with client likelihood of immigration consequences of plea Discuss with client likelihood of immigration consequences of plea

72. Virginia Justice Project Updated immigration consequences of Virginia criminal convictions by Capitol Area Immigrant’ Rights Coalition at http://www.caircoalition.org/what-we- do/vjp/vjp-immigration-consequences- resources/ Updated immigration consequences of Virginia criminal convictions by Capitol Area Immigrant’ Rights Coalition at http://www.caircoalition.org/what-we- do/vjp/vjp-immigration-consequences- resources/

73. Questions? Hugo Valverde Hugo Valverde 757-422-8472 757-422-8472 hugo@valverderowell.com hugo@valverderowell.com