1. Pleading Non-Citizens in the Criminal Court
Dallas County Public Defender’s Office

2. Padilla v. Kentucky (2010)

4. “Informed consideration” of immigration consequences by the defense AND THE PROSECUTION during plea negotiations, in order to reduce likelihood of deportation and promote interests of justice, is appropriate.” Padilla v. Kentucky (2010)
Although Padilla is about a criminal defense attorney’s duty. The Supreme Court did address the role of judges and prosecutors in handling non-citizen criminal cases. It is clear the only way for proportionate punishments to be achieved is with the cooperation of the judiciary and the prosecution.
(Read card)
Again as I mentioned before, I think you can explain the proportionality considerations to the DA if they say to you why would I treat a non-citizen better than a citizen and then I also carry around the Padilla quote regarding prosecutors to show it to the DAs. Because the judges are required to only take knowing and voluntary pleas, they have a vested interest in seeing the Padilla rights protected, and to give time if needed for research and encourage collaboration.

5. To advise your client you need to know:
Immigration status/history
Pending charges
Prior criminal history
Now to illustrate the importance of having this information, let me compare it to a criminal case. If I came into your office and told you my client was charged with possession of marijuana, and then asked you if he would be convicted and what his sentence would be, you would likely tell me that you needed more info to even begin to answer that question. You might need to know the amount of marijuana, where he was when he was arrested, where if the drugs were on his person or in his vehicle when he was arrested, what his priors were and so on. This is exactly the same with immigration. If you just tell me the charge, I cannot tell you the immigration consequences without knowing more.

6. Convictions and Sentences

7. Overview of Immigration Consequences

8. Grounds of Inadmissibility v. Deportability
Then I like to look if it prejudices relief, travel and naturalization.

9. Crimes of Moral Turpitude (CIMT)

10. Aggravated Felony cont’d

11. Aggravated Felony cont’d

12. Analyzing the State Statute
Looking at the existing case law
Sources of Law
BIA and AAO (both under DOJ)
5th Circuit
SCOTUS
Other Circuits as needed
Types of Cases
Appeals of affirmative and defensive immigration cases
Federal crimes (illegal re-entry, ACCA etc)
Ineffective Assistance of Counsel cases
Dallas County Public Defender

13. The Categorical Approach: Look at the statute not the conduct
How to see if a state conviction triggers a federal immigration outcome
Dallas County Public Defender

14. Categorical Approach Continued

15. Road Map for Categorical Approach
Is there a categorical match?
What if the statute defines multiple offenses?
Does the ROC establish that the offense of conviction comes within removal grounds?
Dallas County Public Defender

16. Part 1: Is there a categorical match?
Does the offense categorically (always necessarily) match the removal ground?
Has anyone, anywhere ever been convicted of this state statute but would not have been convicted under the federal definition?
Dallas County Public Defender

17. Step A: Find the Generic Definition
Identify the generic definition of the crime listed in the removal ground.
Generic Definition = Federal definition of a criminal law term that appears in the INA
May be reference to Fed statute or case law
We want to distinguish client’s offense from the generic definition.
Dallas County Public Defender

18. Step B: Find the Minimum Conduct
Identify the minimum prosecuted conduct that violates the criminal statute.
Defense Goal: Identify some minimum conduct that falls outside the generic definition
Tip: Look to state law cases
Dallas County Public Defender

19. Use a chart to see if it is a match
State Statute
Generic Definition
Taking a vehicle
Taking
Without consent
Intent to Deprive
Guilty for permanent or temporary taking
Permanent taking only. Definition excludes temporary takings.
Dallas County Public Defender

20. STATE CONVICTION = REMOVAL GROUND
Now do we have a match?
If all conduct in the state statute comes within the generic definition, there is a match.
STATE CONVICTION = REMOVAL GROUND
If it does not, no
match and the
statue is
“overbroad”
and should not trigger removal ground
Dallas County Public Defender

21. Part 2: But what if the statute defines various offenses?
So if statute only deals with one offense, you end at step one BUT
If statute has more than one offense, you have to see if its actually a different offense or just a different means to commit the same offense
Dallas County Public Defender

22. Requirements for Divisible Statute
In Mathis v. U.S., 136S.Ct (2016), the Supreme Court addressed when a statute is divisible.
The statute sets out different elements phrased in the alternative (uses “or”).
At least one, but not all, of the alternatives triggers the removal ground.
A jury would have to decide unanimously between the alternatives in order to find guilt in every case – this is the definition of “element.” without this, alternatives are mere “means” of committing a single crime.
Dallas County Public Defender

23. Texas Tough Stance on Crime Helps Us!
Texas loves its prosecutors enough to rarely require jury unanimity
Dallas County Public Defender

24. Part 2: Analyzing Divisibility
If the state statute is not divisible (ie there may be various means of commission but only one set of elements) and there is no match- WE WIN
If the statute is divisible, we need to figure out which offense of those listed in the statute our client committed
Dallas County Public Defender

25. Reviewable Record of Conviction
YES NO
Plea colloquy transcript
Admissions during plea
Charge, if evidence shows plea to charge
Judgment
Factual basis for plea
In some cases, notations on minute order, abstract
Dropped charges
Statements to IJ (unless admitting a fact in the NTA during plea)
Co-D’s record
Police report
Probation/Pre-sentencing report
Preliminary HRG transcript (Unless stipulated as factual basis for plea)
Dallas County Public Defender

26. Example Generic Definition Burglary
Taylor v. United States, 495 U.S. 575 (1990)
“unlawful or unprivileged entry into, or remaining in a building or structure, with intent to commit a crime”
Dallas County Public Defender

27. Example: Texas Burglary
A person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
Dallas County Public Defender

28. Texas Burglary Chart State Statute Generic Definition
Without consent enters
Unlawful, unprivileged entry or remaining
Building or habitation
Building or structure
With Intent to commit a crime
Commits Theft, Assault or other felony
Dallas County Public Defender

29. Contact information
Jordan Pollock, Assistant Public Defender/Immigration Specialist at the Dallas County Public Defender’s Office
(214)
Dallas County Public Defender