1. National Defending Immigrants Partnership Training – Day 1 Unit 1: Overview, Immigration Status, Defense Priorities

2. Unit 1: Goals, Immigration Status, Analysis, Tools Defense counsel should provide noncitizen defendant with specific analysis of the impact of a proposed criminal disposition on the person ’ s immigration situation. Some states ’ law doesn ’ t require this, but it is part of basic defense. Just as defendant needs to know possible sentence before agreeing to plea, needs to know immigration consequences.

3. Part A: Understanding Immigration Status Citizens Aliens – Permanent Residents – Undocumented – Other types of status (asylee, refugee, applicant for status, TPS, student or employment visa, etc.)

4. Citizens and Nationals No U.S. citizen ( “ USC ” ) or national can be deported or removed, or prosecuted for a crime for which alienage is an element, such as illegal re-entry. Citizen = born in U.S. or Puerto Rico, sometimes Guam. National = born in American Somoa, Swains Island.

5. Naturalization to U.S. Citizenship A lawful permanent resident (LPR, “ green card-holder ” ) can apply to become a U.S. citizen by naturalization. Must show “ good moral character ” and LPR status for a certain amount of time (usually 5 yrs, sometimes less). Must not be deportable. – Other requirements include ability to speak English (some exceptions), knowledge of US history/gov ’ t, take a loyalty oath, etc.

6. Some Foreign-Born Became Citizens without Naturalizing Many persons born abroad are USC ’ s (and may not even know it!). Ask: – When you were born, did you have a USC parent or grandparent? – While under age of 18, (a) did you get a green card and (b) did a parent with custody of you become a citizen through naturalization? If answer to either question is yes, refer for consultation to see if client is USC.

7. Juvenile Defenders: Make a Citizen, Save a Kid Juvenile defenders, working with parent, can protect child from future deportation. A juvenile who is an LPR (has a green card) will automatically become a citizen if a parent with custody naturalizes to U.S. citizenship before the juvenile ’ s 18 th birthday. – Kid ’ s delinquency, adult crim record is no bar.

8. “ Aliens ” (Non-USC ’ s) All non-USC ’ s, including persons who ’ ve had a green card for 20 years and have USC children, can be deported, easily, for a criminal conviction. – Lawful Permanent Resident (LPR,Green Card-Holder) can remain unless becomes deportable – Undocumented – “ illegal alien ” – may hope to get lawful status – In between are various forms of status.

9. Lawful Permanent Resident Becomes LPR through family petition, employment, asylum, or other application Maintains LPR status permanently unless – becomes deportable, e.g. by conviction of a crime, or – leaves US while inadmissible for crime, or – abandons LPR status, e.g. by remaining too long outside U.S. Must renew LPR card every 10 years, at which time imm authorities might check prints for deportable offenses Can apply for naturalization after certain period of time.

10. Undocumented Person Usually either entered without inspection, or overstayed some visa No current lawful immigration status – However, might be eligible to apply for status (or in the future might become eligible to apply). For example, might marry a U.S. citizen.

11. Undocumented II Can be “ removed ” (deported) if detected by DHS, unless can assert some defense or application against the removal. “ Judge I am undocumented but I qualify for relief from removal because I am eligible to apply for … (some status, such as asylum, cancellation for non-LPR ’ s, TPS, family immigration, etc.). ”

12. Not LPR, Not Undocumented: Other Types of Status Dozens of other types of status exist. E.g.s: – Non-immigrant (temporary) visas, such as F- 1 student, H-1 professional worker – Non-permanent status such as asylee, refugee, or TPS recipient; – Person has applied for status and has work authorization (current or expired). Photocopy any imm document and consult with an immigration attorney to determine the person ’ s status and the criminal defense goals.

13. Exercise 1 – Immigration Status What do you know, or what should you do to find out, about your client ’ s immigration status if she: – Has a “ lawful permanent resident card ” dated 12 years ago? – Has a “ B-1 visitor ” visa that expired in 1992? – Has no papers, but says her father is a U.S. citizen.

14. Part B: Intake Sheet and Interview, Using a State Chart, the Three Lists Intake Sheet: Key Defense Tool – Captures information needed to make an immigration analysis – Using a designated color alerts all atty ’ s that immigration is an issue How to get this instituted in your state or office?

15. Intake Interview At intake and after (atty or intake staff): Assure client you ’ re not DHS, info is confidential Complete Immigration Intake Sheet Photocopy any imm cards or documents Obtain info on other convictions in all jurisdictions and countries Interpreter Issues

16. Analysis Verify Citizenship/Imm Status Prepare to Ask About Alternative Dispositions Rough Out the Analysis Yourself Before Calling, if you will call other atty

17. National Manual and State Chart Key Defense Tools to help defenders make individual analysis for defendant: – Analyze consequences of past convictions and proposed plea; locate “ safer ” plea options, if they exist

18. Using Chart and Materials Quick Reference Chart and Notes is a “ triage ” measure that significantly improves your ability to competently represent noncitizen defendants. But in many cases, not enough. Require in-depth research and/or consultation with expert, unless and until you develop expertise. See “ Note: Resources. ”

19. Using the Quick Reference Chart Quick Reference Chart for Immigration Consequences: – Look up offense by code section – Look to Chart to identify immigration consequences – Look to National Manual (or state guide, such as Calif. Notes) for info about the immigration consequences

20. Three Lists of Offenses with Immigration Consequences Aggravated Felonies, 8 USC 1101(a)(43) Grounds of Deportability, 8 USC 1227(a) Grounds of Inadmissibility, 8 USC 1182(a) The lists contain different offenses. A conviction may make the person inadmissible but not deportable, or be an aggravated felony but not a ground of inadmissibility.

21. Aggravated Felonies -- Most Serious Consequences “ AF ” = Aggravated Felony. – AF carries worst possible imm penalties. Almost impossible to qualify for waiver to stop deportation or get status. A few means of relief exist. – Prior AF conviction also will increase federal sentence if person re-enters U.S. after being deported/removed, under 8 USC 1326(b)(2).

22. Examples of Aggravated Felonies Dozens of minor and serious offenses. Examples are: – Any drug trafficking, sometimes drug possession – Sexual abuse of a minor (includes stat rape) – Misdemeanor theft with a suspended sentence of a year...

23. Examples of Agg. Felonies (2) More examples: – Rape, murder – Fraud with > $10,000 loss to victim – “ Crime of Violence ” with a suspended sentence of a year

24. Grounds of Deportability “ Takes away what you ’ ve got ” Take away status, so even a permanent resident can be “ removed ” (deported) Unless the offense is an aggravated felony, some waiver of deportability might be available. – See, e.g., LPR “ cancellation of removal ” (8 USC 1229b(a)), a discretionary waiver for long-time LPR ’ s who are deportable for crimes – but barred by AF conviction.

25. Deportability Grounds Based on Crimes Conviction of: – Crime/s involving moral turpitude – Controlled Substance Offense – Firearms Offense – Domestic Violence Offense, Stalking, or Child Abuse, Neglect or Abandonment – Aggravated Felony

26. Deportability Grnds Based on Crimes, Cont ’ d Conduct grounds (don ’ t require conviction) – Violation of domestic violence protective order (civil or crim) – Alien Smuggling – False documents – False Claim to U.S. Citizenship

27. Grounds of Inadmissibility, “ Blocks getting something new ” A noncitizen who is inadmissible on criminal grounds: – Cannot be admitted to the U.S. – Cannot get a green card or other status – Offense may affect ability to naturalize Some inadmissibility grounds, in some situations, can be waived at discretion of an immigration officer or immigration judge.

28. Inadmissibility Grounds Based on Crimes Conviction of: – Crime/s Involving Moral Turpitude (different standard from the removal CMT ground) – Controlled substance offense – Two offenses of any kind with aggregate 5 yr or more sentence imposed – High-speed chase near border

29. Crimes Inadmissibility Grounds II Conduct grounds (don ’ t need conviction) – Formally admit CMT or drug offense – Drug addiction or abuse – Gov ’ t has “ reason to believe ” drug trafficking – Engaging in prostitution – Alien Smuggling – False Claim to U.S. Citizenship – False documents – Mental disorder posing threat to self, others

30. Crimes Inadmissibility Grounds III Notice the grounds of inadmissibility do not include conviction of: – Firearms offense – DV offense, stalking, or child abuse neglect or abandonment, – Aggravated Felony – Violation of DV protective order (civil or crim) Sometimes such offenses also create inadmissibility under CMT or drug grounds

31. Part C: Establishing Defense Goals in Individual Cases Everyone wants to avoid an aggravated felony Grounds of deportability and inadmissibility are slightly different lists of crimes. – For example, firearm offense triggers deportability but not inadmissibility, while “ reason to believe ” trafficking triggers inadmissibility but not deportability How to set priorities between avoiding deportability versus inadmissibility?

32. Establishing Goals II In general, lawful permanent resident ( “ LPR, ” “ green card ” ) most wants to avoid deportability grounds. 8 USC 1227(a). In general, persons without status, e.g. undocumented, most wants to avoid inadmissibility grounds. 8 USC 1182(a). See “ Establishing Defense Goals ”

33. Defense Goals for LPRs An LPR ’ s crim defense goals, in order, are: 1. Avoid aggravated felony (AF) -- AF will make them deportable and block almost all relief. 2. Avoid other grounds of deportability -- A deportable LPR can be stripped of green card and removed (but without an AF conviction, some relief might be available)

34. LPR Defense Goals II 3. Avoid becoming inadmissible -- Inadmissible LPR doesn ’ t necessarily lose green card. -- But can ’ t travel outside US, must wait to naturalize to U.S. citizenship.

35. LPR Defense Goals III An LPR who becomes deportable still may be able to apply for some relief from removal. – That may require being admissible, as well as other conditions. – Defense counsel must understand what imm. relief is available, and the criminal bars to that relief

36. Defense Goals for Undocumented Persons Usually coming within a ground of deportability won ’ t hurt the person. – (Exception is person who will apply for cancellation for non-LPR ’ s) Want to qualify for status or relief, now or if they become eligible in the future – Remain admissible – Specific status may require more. Defense counsel must understand what they ’ re eligible for and criminal bars.

37. Defense Goals for the Person Who Absolutely Will Be Removed E.g., undocumented with no hope of relief; deportable LPR with no waiver; immigrant with prior removal/deportation – Priority may be to avoid contact with imm authorities. To do that: avoid jail time. – Person must be warned of federal crim penalties for illegal re-entry following removal and certain prior convictions. If possible, plea should be made to minimize this.

38. Exercise 2: Determining Criminal Defense Goals Questions about Deportability, Inadmissibility, Conviction of an Aggravated Felony, and the Effect on Different Types of Immigration Status

39. Client Already Deported, Illegally Re-entered Biggest priority is to avoid meeting federal authorities. Avoid jail. Depending on priors and locale, 30-60 months typical sentence Imm authorities simply will “ reinstate ” prior deport order and deport; no advantage in going there except in extreme persecution (political, religious, etc.) cases.

40. More info on Illegal Re-entry See U.S. Sentencing Guidelines on 8 USC 1326(b) – 18 USCS Appx 2L1.2 (2003) – Application Notes (b)(1) See California Criminal Law and Immigration, sec. 9.50 for discussion and text of above USSG sections Consult with fed public defender

41. Unit 2: Definition of Conviction Many, but not all, immigration consequences require a conviction.

42. Definition of Conviction for Immigration Purposes Formal judgment of guilt by court, or If adjudication withheld, still a conviction, despite state law to contrary, as long as: Judge/jury found guilt, or noncitizen pleaded guilty or NC or admitted facts to warrant guilt finding, and Judge ordered punishment or restraint (includes probation) See 8 USC 1101(a)(48)(A)

43. Not a Conviction Delinquency disposition (or state youthful offender disposition in adult criminal court deemed analogue to federal delinquency disposition) Conviction on appeal Dispo that does not contain a plea/finding of guilt plus punishment/restraint such as probation

44. Delinquency Disposition Not Conviction Not a conviction Matter of Devison, 22 I&N Dec. 1362 (BIA 2000 Crucial for non-USC’s to go to JD where possible JD findings still can cause harm under “ conduct ” grounds, e.g. show drug trafficking, abuse, addiction; prostitution.

45. Youthful Offender Dispositions Board of Immigration Appeals has held that NY youthful offender disposition in adult criminal court is analogous to federal juvenile delinquency disposition Matter of Devison 22 I&N Dec. 1362 (BIA 2000 (BIA 2000).

46. Youthful Offenders (2) Board considered similarity of definitions of youths and juveniles, similarity of other eligibility criteria, fact that both dispositions are not deemed convictions for criminal purposes, and confidentiality protections involved for both.

47. Appeal Not Conviction Direct appeal of right is not a conviction Consider: Late-filed appeals “ Slow plea ” : Plead guilty according to facts in judge ’ s finding or police report, but reserve appeal on suppression motion or other substantive ground Warning: Fifth Circuit not in accord xxx

48. Alternative dispositions that are convictions “ Rehabilitative relief ” does not work. Thus if plea or judgment withdrawn not for legal error, but because e.g. person completed probation or counseling, imm authorities will maintain there is a conviction even if the state holds that there is not. See, e.g., Murillo Espinoza, 261 F.3d 771 (9 th Cir. 2001). Ninth Circuit exception: Rehabilitative relief works for certain first drug offenses. See below.

49. Alternative dispositions that are not convictions “ Pre-plea ” diversion programs, where there never is admission or findings Informal deferred plea: bargain with prosecutor to continue plea hearing, during which time defendant completes probation-like requirements; then ask for charges to be dropped or amended. Drug courts sometimes don ’ t require plea (but also have consequences if require admission of abuse/addiction)

50. Exercise 3: Your State ’ s Alternative Disposition/s In small group, analyze the following: – What alternative disposition/s are available in your state? Do they constitute a conviction for immigration purposes? – What formal relief or informal strategies in your state courts would avoid a conviction for immigration purposes?

51. Unit 3: Sentencing Strategies Sentence Concern #1: Some offenses are AF ’ s only if a sentence of a year or more is imposed. Focus of this discussion. Concern #2: Some CMT convictions cause inadmissibility or deportability depending on potential and/or imposed sentence Concern #3: Certain forms of relief are impacted by sentence.

52. Agg Felonies if a Sentence of One Year or More is Imposed Several offenses become AF ’ s only if a 1-yr or more sentence is imposed: crime of violence theft, receipt stolen property passport or document fraud forgery, bribery, commercial bribery, counterfeit, sale of veh. w/altered ID obstruction of justice, perjury, subornation, witness bribery See 8 USC 1101(a)(43)

53. Sentence Defined “ sentence... include[s] any period of incarceration or confinement ordered by a court ” regardless of suspension of imposition or execution. 8 USC 1101(a)(48)(B).

54. Suspended Sentences, Probation Imposition suspended = good (but custody ordered as condition of probation counts) Execution suspended = bad (full sentence counts) Probation alone is not a sentence But note Texas, Ga probation can = suspended sentence Example: IOSS, 3 yrs probation, 6 mo custody as condition of probation = 6 month sentence

55. Sentence Enhancement Ninth Circuit: Recidivist sentence enhancement not “ sentence ” U.S. v Corona-Sanchez, 291 F.3d 1201 (9th Cir 2002)(en banc)(Petty theft retains a maximum 6 mo sentence; enhancements equaling 2 years imposed based on prior conviction are not counted) Thus petty with a prior better than grand theft.

56. Avoid AF Sentence Get IOSS w/no more than 364 custody as condition of probation Stack counts consecutively: Analysis goes count by count: avoid any single offense with 1 yr sentence Expand area of 364: waive past CTS, waive future conduct credits Put time on non-AF offense Get time by recidivist enhancement (9 th Cir) Your state?

57. Probation Violation Avoid total of original and new PV sentence over 364 days. New conviction instead of violation can avoid total sentence of one year on prior Modify original sentence to void the custody term and waive CTS so new sentence is less than 365 Matter of Song, 23 I&N 173 (BIA 2001)

58. Exercise 4: Sentence See Materials: Practice questions on immigration effect of sentence Small group discussion: sentence strategies under your state law

59. Unit 4: Categorical Analysis and Record of Conviction See “ Advice. ” Poss of firearm is deportable offense but other weapon is not. Must keep “ record of conviction ” clear of information that firearm was involved Illustrates the crucial defense: using the categorical analysis and record of conviction.

60. Cat. Analysis: Divisible Statute and Record of Conviction Conviction is evaluated by elements of offense of conviction as proved by record, not by individual facts of case. Where statute prohibits conduct that has imm penalties – e.g., being an AF – as well as conduct that does not, no imm. penalty adheres unless the record of conviction establishes the offense of conviction had the adverse elements.

61. Where record of conviction is vague or lacks info, immigrant wins Record of conviction must establish that the offense of conviction contained the harmful element, or the element is considered unproved. – See Shepard v United States, 125 US 1254 (2005) (where reviewable record did not establish that burglary was of a dwelling as opposed to a car, not a “ crime of violence ” for sentencing purpose). – Already law in several circuits (see, e.g., US v Corona-Sanchez 291 F3d 1201(9th Cir 2002)(en banc)) but Shepard supersedes bad law in others.

62. Shepard limits reviewable record to limited documents Statutory definition, Charging document, Written plea agreement, Transcript of plea colloquy, and Any explicit factual finding by the trial judge to which the defendant assented.

63. Record of Conviction INCLUDES elements in statute and case law; Info in criminal charge, but only w/ proof def pled to the charge; Plea agreement & transcript of plea hearing; Court ’ s explicit factual finding to which the defendant assented, in conviction by plea; Admissions of D during plea, sentence; Jury instructions if req ’ d for guilt in jury case.

64. Record of Conviction DOES NOT INCLUDE Police reports (Shepard) Application for complaint (Shepard) prosecutor ’ s comments (Board of Immigration Appeals (BIA)) Probation or pre-sentence report (e.g., 9 th Cir., implicit in Shepard) Defendant ’ s admissions outside criminal hearing (e.g. to immigration authorities) (BIA)

65. Case Study Statute punishes unlawful possession of concealed firearm or switchblade. If Count I alleges “ possession of firearm, ” do not plead to unamended Count I. Create written plea agreement or plea colloquy amending Count I either to be vague, or to identify non-firearm weapon. Good plea is to whole statute in disjunctive ( “ or ” )

66. Avoiding bad admissions 1. Enter Alford plea without admitting guilt 2. Try entering “ no contest ” plea 3. Make scripted admissions of safe minimum facts 4. Admit only safe charge

67. Categorical Analysis is Universally Applicable We will use this strategy frequently to avoid all types of immigration consequences. Plea agreement or plea colloquy trumps any other information: you create the record of conviction. – See e.g. Chang v INS, 307 F.3d 1185 (9 th Cir. 2002).

68. Exercise 5: The Categorical Analysis 1. Does your state law have a statute that prohibits both firearms and other weapons? In practice, could you plead in a way that would not identify the firearm? 2. Which of the following can a court consult to determine elements of the offense of conviction, where the statute is divisible? – Charging document plus evidence that the person was convicted under the statute. – Charging document plus transcript of plea colloquy where defendant plead to “ Count I as written. ” – Police report.