1. Law Offices of Robert D. Ahlgren and Associates, P.C.
FUNDAMENTALS OF IMMIGRATION LAW A General Overview of Deportation, Removal, and the Effect of Criminal Laws
Presented by:
Kathleen M. Vannucci
Law Offices of Robert D. Ahlgren and Associates, P.C.
Chicago, Illinois

2. GENERAL CONCEPTS
THE LAW = “INA” = Immigration and Nationality Act (as amended)
IMMIGRANT
Lawful permanent resident (“LPR”)
Can live and work in the U.S indefinitely
NON-IMMIGRANT
Authorized to be in the U.S. for varying periods of time, depending on category
Time period can range from days to years

3. U.S. Citizenship By acquisition: By derivation: “Born in the U.S.A.”
Born outside the U.S.
By acquisition:
U.S. Citizenship acquired at birth in certain circumstances
Usually, U.S. Citizen parent must have lived in U.S. for certain period before child’s birth
By derivation:
After child becomes an LPR, may automatically become a U.S. Citizen when the parent naturalizes before child turns 18 years old

4. Removal Basics How does a person wind up in removal proceedings?
CRIMES!—this is the BIG one!
Filing for an immigration benefit affirmatively and receiving a denial
Airport
Immigration Raids

5. Removal Basics Bond and Detention Issues
INA §236(c)—Some people are not eligible for bond (that means that they will be mandatory detention for the duration of their court proceedings)
Some examples include: certain crimes, drug offenses, prostitution, security/terrorist grounds, aggravated felonies, certain gun offenses
Of the people that are eligible for a bond:
ICE can set the bond
If too high or ICE won’t give one, we can ask the judge for one

6. Removal Basics What are the burdens of proof in a removal proceeding?
What is an NTA (Notice to Appear)? The Charging Document used in Immigration proceedings.
Officially starts proceedings
It will list the allegations and charges
May get court hearing date with the NTA or else it will be sent separately
What are the burdens of proof in a removal proceeding?
If you are being charged with a ground under INA §237 (deportation), then the Government has the burden of proof to establish that the alien is deportable by “clear and convincing evidence.”—INA §240(c)(1)
If you are being charged with a ground under INA §212 (inadmissibility), then the burden is on the alien to show “clearly and beyond a doubt” entitled to be admitted or by “clear and convincing evidence” that the alien is lawfully present pursuant to a prior admission—INA §240(c)(2)

7. Removal Basics Jurisdiction and Venue
Jurisdiction is generally proper in any Immigration Court provided the court has jurisdiction over the person (i.e. not a citizen)
Venue is proper in any Immigration Court generally closest to where the Respondent resides
Change of venue can be granted upon a showing of good cause, however generally not where a person is detained
Immigration Judges apply the law of the Circuit in which they sit

8. Inadmissibility VS Deportability
If a person was already admitted to the United States: REMOVABLE under INA §237
If not admitted: INADMISSIBLE under INA §212
When is a person seeking admission?
A person is seeking admission to the US at a consulate abroad, a port of entry, or when seeking permanent residence through Adjustment of Status application.
DEFINITION: Under INA §101(a)(13)(A), “Admission” and “Admitted”
Lawful Entry
Inspection and Authorization

9. Inadmissibility VS Deportability
Aliens not considered “admitted” include:
Paroled under INA §212(d)(5)
Crewman permitted to land temporarily
Arriving aliens
Aliens present without inspection

10. Inadmissibility VS Deportability
Under INA §101(a)(13)(c): An LPR returning to the United States after traveling abroad is not ordinarily regarded as “seeking admission” EXCEPTIONS include
If they abandoned or relinquished their status
They were outside the US for more than 180 days
Engaged in illegal activity after departure
Departed while under removal proceedings
Committed a criminal offense under §212(a)(2)
Attempting illegal entry or has not been admitted

11. Inadmissibility VS Deportability
Please see separate charts outlining the different grounds of inadmissibility and deportability.
Whether grounds of inadmissibility or deportability applies is very important.
Burdens of proof are different
Types of relief are different

12. Definition of Conviction—INA §101 (a)(48)
(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by the court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

13. Definition of Conviction
Remember—where adjudication of guilt has been withheld, need BOTH PRONGS! If one of the prongs is not met, then no conviction for immigration purposes
Need to evaluate the criminal record very carefully to determine whether or not the person has a “conviction” under the INA.

14. Effects of Criminal Convictions
Crimes Involving Moral Turpitude (CIMTs)
Two or more crimes with aggregate 5 year sentences
Controlled substance offenses
Prostitution and commercialized vice
Domestic violence convictions/Violators of Orders of Protection
Firearm offenses
Aggravated felonies under the INA

15. Effects of Criminal Convictions
Loss of resident status
Loss of ability to immigrate
Mandatory detention
Bar to relief from removal
Disqualification for naturalization

16. Effects of Criminal Convictions
The Basics of Crimes Involving Moral Turpitude (“CIMTS”)
There is not a definition of CIMT in the INA! Therefore, we look to the long history of BIA and federal court precedent
Criminal statutes are analyzed on a case by case basis unless there is precedent specifically on point
Generally, a CIMT refers to acts that are inherently evil or wrong by society’s standards—the BIA has held that moral turpitude refers to conduct that is “base, vile, or depraved.” (Matter of Perez-Contreras BIA 1992)

17. Effects of Criminal Convictions
There is no distinction between felonies and misdemeanors.
In general, CIMTs include intent to do wrong or knowledge of wrongdoing.
An admission to the elements of a crime involving moral turpitude may be enough to trigger inadmissibility (INA §212(a)(2)(A)(i))
Effects of CIMTs:
Ground of Inadmissibility (INA §212(a)(2)(A)(i)(I))
Grounds of Removability (INA §237(a)(2)(A)(i), INA §237(a)(2)(A)(ii))
Ground for an adverse determination of good moral character (INA §101(f))
Grounds for mandatory detention (INA §236(c))

18. Effects of Criminal Convictions
Offenses that Typically Involve Moral Turpitude
Fraud
Theft
Sex-related offenses
Crimes of violence which include an element of intent

19. Effects of Criminal Convictions
Offenses that Typically Do NOT Involve Moral Turpitude
Firearms offenses
Drug offenses
Other “regulatory offenses”
Driving Under the Influence
Alien smuggling
Crimes where only negligence or recklessness are required for a conviction

20. Effects of Criminal Convictions
Aggravated Felonies—Any alien who is convicted of an aggravated felony at any time after admission is deportable. INA §237(a)(2)(A)(iii)
Aggravated felony is defined at INA §101(a)(43) Includes:
Murder, rape, or sexual abuse of a minor
Illicit trafficking of a controlled substance
A crime of violence, where the term of imprisonment is at least one year
A theft offense, where the term of imprisonment is at least one year
An attempt or conspiracy to commit an offense listed

21. Post-Conviction Challenges
Reduction of sentence
Vacate a legally defective conviction
Post conviction withdrawal of the plea
Remains valid if vacated only for immigration purposes
Pardons

22. Post-Conviction Challenges
Padilla v. Kentucky, 130 S.Ct. 1473(2010)—holding that criminal defense attorneys have a 6th Amendment duty to advise their noncitizen clients about immigration consequences of their criminal cases, they cannot remain silent regarding immigration consequences.
Resources on Padilla:

23. Overview of Defenses Available in Immigration Court
Cancellation of Removal for Non-LPRs
Cancellation of Removal for LPRs
VAWA Cancellation of Removal
Adjustment of Status
NACARA
TPS
Asylum/Withholding of Removal
Convection Against Torture
Voluntary Departure

24. Overview of Defenses Available in Immigration Court
Cancellation of removal of a non-LPR:
This is what people mean when they ask if they can get their green card based on time
Qualifications:
Qualifying relative?
Wife, Children (under 21), or parents that are USCs or LPRs
Physically present not less than 10 years prior to applying:
No departure for longer than 90 days /180 days in the aggregate
Cannot have signed for VD at the border during that time (Romalez)
Stop time rule: physical presence ends when NTA (Notice to Appear) is served, or when certain crimes are committed
GMC (good moral character) for 10 years prior to applying
Not convicted of certain types of crimes, including CIMT’s
Removal would result in exceptional and extremely unusual hardship to qualifying relative – the hardest requirement of all
Discretionary!!

25. Overview of Defenses Available in Immigration Court
Cancellation of Removal for an LPR:
Lawful resident for at least 5 years
Continuous residence for 7 years after “admission”
No conviction for aggravated felony.
Discretionary! Weighing the positive against the negative
Positive factors:
Family ties within the U.S.
Residency of long duration
Evidence of hardship to Respondent and family
History of employment
Value and service to the community
Genuine criminal rehabilitation
Negative factors:
Nature and underlying circumstances
Criminal record
Evidence of bad character

26. Overview of Defenses Available in Immigration Court
U Visa—INA § 101(a)(15)(U).
Requirements:
Victim of a statutorily listed crime in violation of U.S. law or in territories/possessions
(examples: domestic violence, rape, torture, trafficking, incest, sexual assault, kidnapping, false imprisonment, murder, manslaughter, obstruction of justice, perjury, and felonious assault)
Helpfulness in a criminal investigation or prosecution
Suffered substantial physical or mental abuse

27. Overview of Defenses Available in Immigration Court
The U visa is decided by USCIS, not the Immigration Judge. But the Immigration Judge will oftentimes give the Respondent continuances if an application for a U visa is pending or perhaps administratively close the case.
Why is the U visa such a GREAT option?
It can allow benefits for certain family members
It has a waiver available that can forgive pretty much anything, with the exception of INA §212(a)(3)(E), Nazi persecution, genocide, torture, extrajudicial killing
Waiver standard—discretionary, if in the public or national interest

28. Overview of Defenses Available in Immigration Court
Helpful Pointer for Removal Defense:
NEVER concede any fact or point of law unless you are positive it is correct.
Don’t assume the government has sufficient proof to sustain the charges against your client
Don’t assume your client was convicted just because the NTA says they were convicted

29. Representing Refugees and Political Asylees
Political Asylum
Qualifications:
Unable or unwilling to return to home country
Suffered or would suffer persecution (torture, death, other severe harm)
Past persecution can be sufficient
On account of race, religion, nationality, political opinion, or membership in a particular social group
By the government or a group that the government cannot control
Could she relocate in her own country to avoid persecution?
Filed w/in one year of entry?
Exceptions: Changed circumstances, Extraordinary circumstances

30. Representing Refugees and Political Asylees
Withholding of Removal
A MANDATORY form of relief to a foreign national fleeing persecution from his/her country of nationality. Based on the same grounds as asylum (Race, religion, nationality, political opinion, or membership in a particular social group)
The big difference is that there is a higher burden of proof— “more likely than not” that one will be persecuted by the government or a group that the government cannot or will not control.
With a grant of withholding of removal, you are not able to apply for lawful permanent residence, you cannot travel outside of the US. You do, however, qualify for work authorization.
Who seeks Withholding of Removal?
If you missed the one year filing deadline
If you are convicted of an aggravated felony

31. Representing Refugees and Political Asylees
Relief under the United Nations Convention Against Torture (“CAT”)
Under Article 3 of the CAT, a person may not be returned to a country where there are substantive grounds to believe that he or she will be tortured there.
Standard is: “Is more likely than not”
What is torture?
Severe pain or suffering (physical or mental) that is intentionally inflicted “by or at the instigation of or with the consent or acquiesence of a public official, or other person acting in an offical capacity. 8 CFR §208.18(a)(1)