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Aggravated Felonies § 2.14 ; Criminal Defense of Immigrants § 15.6, Appendix 13 ; Crimes of Moral Turpitude § 3.14:
GOOD MORAL CHARACTER - USE OF FALSE SOCIAL SECURITY CARD
Counsel can argue that use of a false social security card does not evidence a lack of good moral character. See Matter of K, 3 I. & N. Dec. 69 (BIA 1947) (noncitizen admitted committing perjury before a Board of Special Inquiry in February 1931, when he was not yet 18 years of age; he could not have been treated and tried as a juvenile delinquent after the effective date of the Federal Juvenile Delinquency Act (June 16, 1938), when he was over 24 years of age and the statute of limitations had already run on the violation; it would be unrealistic to apply the above 1938 act retroactively to cover the violation of the Federal perjury statute so that it should be regarded as a juvenile delinquency rather than as perjury). Thanks to Lisa Brodyaga.
Aggravated Felonies § 2.21 ; Criminal Defense of Immigrants § 24.10 ; Crimes of Moral Turpitude § 3.20:
RELIEF - LEGALIZATION - AMNESTY
IAP v. INS (now NWIPR v. CIS), Case No. 88-379R (W.D.Wash.) (legalization application period reopened from February 1, 2009 to Jan. 31, 2010 for persons who entered the U.S. on a nonimmigrant visa prior to Jan. 1, 1982 and who lived in the United States at least through 1988 may be eligible).
All the necessary forms and information for those wanting to know about the NWIRP settlement are available for download here: http://sites.google.com/site/nwirpsettlementwiki/
The USCIS announcement link is: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e6984887b936d110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
Aggravated Felonies § 4.24 ; Criminal Defense of Immigrants § 16.25 ; Crimes of Moral Turpitude § 7.11:
NATURE OF CONVICTION - RECORD OF CONVICTION - ABSTRACTS OF JUDGMENT - ARGUMENT ABSTRACTS ARE INSUFFICIENTLY RELIABLE
Abstracts of judgment cannot be relied upon in the modified categorical approach because they are insufficiently reliable non-judicial summaries of other documents. Under both Duenas-Alvarez and Shepard documents must be judicial in nature to be Shepard-type documents considered under the modified categorical approach. Judicial does not mean prepared by a judge- as Snellenberger noted they can be prepared by a clerk of court. Snellenberger, 548 F.3d at 702. But it does not follow that anything prepared by a clerk of court is thereby judicial in nature. Abstracts of judgment are one such document, that though prepared by a clerk are not judicial in nature and therefore cannot be considered in the modified categorical approach. Furthermore, abstracts of judgment are so often flawed that they fail to meet the high Shepard standard for document reliability.
Abstracts of judgment are insufficiently judicial in nature to be Shepard-type documents. In Duenas-Alvarez, the Supreme Court reiterated its position from Shepard that in addition to "the terms of a plea agreement, [and] the transcript of a colloquy between the judge and the defendant, [] some comparable judicial record of information about the factual basis for the plea" may be considered in the modified categorical approach. Duenas-Alvarez, 549 U.S. at 187 (citing to Shepard at 26) (emphasis added). As to abstracts, this Court had already noted that, "preparation of the abstract of criminal judgment in California is a clerical, not a judicial function." United States v. Navidad-Marcos, 367 F.3d 903, 909 (9th Cir. 2004).
While the court in Navidad-Marcos characterized this distinction in terms of a clerical/judicial dichotomy, its analysis is undisturbed by Snellenbergers favorable characterization of documents prepared by clerks of court. See Snellenberger, 548 F.3d at 702. Indeed, in People v. Rodriguez, the California case regarding abstracts of judgment to which this Court in Navidad-Marcos was citing for that proposition, no action by a clerk of court was even at issue. People v. Rodriguez, 152 Cal.App.3d 289, 299 (Cal.2nd 1984). There the clerical/judicial distinction was being drawn with regard to a judges own actions. Id. (discussing why a judge could not use a provision permitting changes to abstracts of judgment in light of clerical errors for the purpose of substantively altering it). An abstract of judgment is then "clerical" and not "judicial" in the sense that it does not require nor immediately record the action of a judge acting in that capacity. See A.R. at 130-31 (Mr. Garcias abstract of judgment, as an example of Judicial Council form CR-290, nowhere requires the signature of a judge). For this reason, a court "may not rely on an abstract of judgment to determine the nature of a prior conviction for purposes of analysis under Taylor v. United States." United States v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. 2007).
As secondary sources, abstracts of judgment are insufficiently reliable for removal purposes. Abstracts of judgment have been consistently found unreliable for the purpose of identifying the nature of a conviction. California courts have frequently noted abstracts of judgment contain erroneous information and as such are not reliable. See, e.g., People v. Morelos, 168 Cal. App. 4th 758, 763 (Cal. Ct. App. 2008) (abstract incorrectly labeled the conviction as a felony instead of a misdemeanor); People v. Bradley, 47 Cal. Rptr. 3d 741, 762 (Cal. Ct. App. 2006) (abstract incorrectly labeled the offense, identifying "misappropriation" and "unauthorized loan" as "embezzlement"); People v. Martinez, 31 Cal. 4th 673, 704 (Cal. 2003) (abstract incorrectly labeled sentence as life without the possibility of parole instead of with the possibility of parole); People v. Prieto, 30 Cal. 4th 226, 277 (Cal. 2003) (same); People v. Grayson, 83 Cal. App. 4th 479, 481 (Cal. Ct. App. 2000) (abstract erroneously denominated false imprisonment conviction as a conviction for dissuading a witness); People v. Avila, 75 Cal. App. 4th 416 (1999) (abstract incorrectly noted the sentence imposed); People v. Thongvilay, 62 Cal. App. 4th 71, 77 (Cal. Ct. App. 1998) (abstract incorrectly labeled a second degree murder conviction as first degree murder); People v. Murillo, 47 Cal. App. 4th 1104, (Cal. Ct. App. 1996) (abstract incorrectly stated that the conviction was by plea instead of jury verdict); People v. Esquivel, 28 Cal. App. 4th 1386 (1994) (abstract incorrectly listed the applicable sentence term); People v. High, 119 Cal. App. 4th 1192 (2004) (abstract incorrectly identified statute of conviction); People v. Jackson, 128 Cal. App. 4th 1326, 1327 (2005) ("The parties have pointed out several clerical errors in the abstract of judgment, which we order corrected."); People v. Leung, 5 Cal. App. 4th 482 (1992) (abstract incorrectly stated the degree of conviction, showing first degree robbery instead of second-degree); People v. Olmsted, 84 Cal. App. 4th 270, 272 (2000) (abstract incorrectly identified consecutive sentences as concurrent); People v. Williams, 40 Cal. App. 4th 446 (1995) (abstract incorrectly calculated custody credits); People v. Rowland, 206 Cal. App. 3d 119 (1989) (abstract incorrectly ordered restitution); Rios v. Garcia, 390 F.3d 1082, 1083 (C.D. Cal. 2004) (abstract erroneously stated the offense as burglary instead of robbery). In the words of one California court, "The frequency with which records on appeal have come to us with [erroneous] abstracts of judgments indicates that trial courts would be well advised to remind their personnel that printed abstract of judgment forms must be used with caution." People v. Waters, 30 Cal.App.3d 354, 362 (Cal.3rd 1973). More recently, the Fifth Circuit went so far as to hold that "considering the low level of reliability associated with abstracts of judgment in California, we are satisfied they should not be added to the list of documents Shepard authorizes ." United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005).
Abstracts of judgment may establish the mere fact of a conviction, or the length of a sentence. See 8 U.S.C. 1229a(c)(3)(B), United States v. Valle-Montalbo, 474 F.3d 1197, 1199 (2007); see also Sandoval-Sandoval, 487 F.3d at 1278. However, they lack sufficient judicial imprimatur and are too prone to error to satisfy Shepards rigorous standard. For a person to be deportable the government must satisfy a high burden. Since Woodby v. INS, the Government must prove removability by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 286 (1966). Abstracts are simply too unreliable to be "unequivocal." Thanks to Holly Cooper.
Aggravated Felonies § 4.40 ; Criminal Defense of Immigrants § 19.22, Appendix 13:
CRIM DEF - UNITED STATES SENTENCE GUIDELINES MANUAL ONLINE
http://www.ussc.gov/2007guid/TABCON07.html
Criminal Defense of Immigrants § 6.26, § 8.48:
CRIMINAL DEFENSE OF IMMIGRANTS - PLEA BARGAINING - STIPULATED REMOVAL ORDERS
Federal authorities are increasingly deporting illegal immigrants through a fast-track program that bypasses court hearings, an effort by the federal government to save money, reduce backlogs and clear detention beds. (Anna Gorman, Concerns Arise Over Fast-Track Deportation Program, Los Angeles Times (Mar. 2, 2009), http://www.latimes.com/news/local/la-me-deport2-2009mar02,0,5186477.story.) "The number of detainees in California and across the nation who agreed to be deported without first seeing a judge jumped fivefold between 2004 and 2007, from 5,481 to nearly 31,554. In the first half of 2008, 17,445 speedy deportation orders were signed." (Ibid.) Almost half of all of these orders after 1999 were issued in Lancaster, California, Los Fresnos, Texas, and Eloy, Ariz. Immigration attorneys question whether those who agree to deportation under this program have been accurately informed of their options. Jayashri Srikantiah, the director of the Stanford Law School immigration clinic, said some detainees are pressured to sign the deportation forms even though they may have defenses against deportation or be eligible for asylum or green cards. About 95% of the people who agreed to the speedy deportations since 1999 are not represented by attorneys, she said. (Ibid.)
Aggravated Felonies § 2.12 ; Criminal Defense of Immigrants § 15.22 ; Crimes of Moral Turpitude § 3.12:
REMOVAL PROCEEDINGS - STIPULATED REMOVAL ORDERS IN CRIMINAL CASES
Federal authorities are increasingly deporting illegal immigrants through a fast-track program that bypasses court hearings, an effort by the federal government to save money, reduce backlogs and clear detention beds. (Anna Gorman, Concerns Arise Over Fast-Track Deportation Program, Los Angeles Times (Mar. 2, 2009), http://www.latimes.com/news/local/la-me-deport2-2009mar02,0,5186477.story.) "The number of detainees in California and across the nation who agreed to be deported without first seeing a judge jumped fivefold between 2004 and 2007, from 5,481 to nearly 31,554. In the first half of 2008, 17,445 speedy deportation orders were signed." (Ibid.) Almost half of all of these orders after 1999 were issued in Lancaster, California, Los Fresnos, Texas, and Eloy, Ariz. Immigration attorneys question whether those who agree to deportation under this program have been accurately informed of their options. Jayashri Srikantiah, the director of the Stanford Law School immigration clinic, said some detainees are pressured to sign the deportation forms even though they may have defenses against deportation or be eligible for asylum or green cards. About 95% of the people who agreed to the speedy deportations since 1999 are not represented by attorneys, she said. (Ibid.)
Criminal Defense of Immigrants § 15.23, § 6.44:
REMOVAL PROCEEDINGS - RIGHT TO ID DOCUMENTS
Torres Memo dated 07/14/2006, last paragraph on the second page, indicates that "non-detained LPRs in removal proceedings are legally entitled to basic forms of identification such as driver's licenses and social security cards ..." Prior paragraph states temp I-551 card to be given. http://www.aila.org/Content/default.aspx?docid=23514 Thanks to Suresh Gulaya
Criminal Defense of Immigrants § 16.7, § 20.33, § 20.39 ; Crimes of Moral Turpitude § 5.13, § 5.2, § 6.5:
CRIMES OF MORAL TURPITUDE - DEPORTATION GROUND - CATEGORICAL ANALYSIS EXCEPTION OF SILVA-TREVINO DOES NOT APPLY HERE BECAUSE THE "ADMISSION" EXCEPTION IN THE CMT INADMISSIBILITY GROUND DOES NOT EXIST IN THE CMT DEPORTATION GROUND
Article: Argument Silva-Trevino Applies Only to Crime of Moral Turpitude Ground of Inadmissibility, Not to the Grounds of Deportability
On November 7, 2008, former Attorney General Mukasey decided Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. November 7, 2008), in which he modified the categorical analysis used to determine whether a given conviction constitutes a crime of moral turpitude (CMT) for purposes of inadmissibility under INA 212(a)(2)(A)(i), 8 U.S.C. 1182(a)(2)(A)(i). He reasoned that because the CMT ground of inadmissibility refers to whether the immigrant admitted commission of a CMT, Congress intended that factual question to be relevant.
The relevant provisions contemplate a finding that the particular alien did or did not commit a crime involving moral turpitude before immigration penalties are or are not applied. Section 212(a)(2)(A)(i)(I), the inadmissibility provision at issue in this case, refers to "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude." (Emphasis added.) Section 237's removability provisions similarly pertain only to "[a]ny alien who is convicted of a crime involving moral turpitude" under certain enumerated circumstances, one of which relates to the alien's date of admissiona fact that would not typically be reflected in a criminal record of conviction. Sections 237(a)(2)(A)(i)-(ii) of the Act. To impose evidentiary limitations with the result that immigration penalties under section 212(a) or section 237 apply to aliens whose crimes did not involve moral turpitude, or with the result that aliens whose crimes did involve moral turpitude escape those penalties, is in tension with the text of those sections.
(Matter of Silva-Trevino, 24 I. & N. Dec. 687, 699-700 (A.G. November 7, 2008).)
The reference to the CMT ground of inadmissibility is apt: that ground of removal does refer to the commission of an offense, or acts constituting an offense. Silva-Trevino was an inadmissibility case, not a deportation case under INA 237(a)(2), 8 U.S.C. 1227(a)(2). The reference to the CMT ground of deportation, however, is dictum. Moreover, the language of the CMT deportation grounds does not refer to the commission of a CMT, or of acts constituting a CMT. It does refer, as Silva-Trevino pointed out, to the date of admission, which would not typically be reflected in a criminal record of conviction. (Id. at 700.) Therefore, the reasoning of Silva-Trevino, and its holding, do not apply to the CMT grounds of deportation. This difference between the two statutes is a distinction sufficient to require a different holding in a deportation case, which is technically not governed by the holding of Silva-Trevino.
This reasoning has begun to be adopted by Immigration Judges. For example, in one case, the immigration judge reasoned as follows:
It is unclear whether the portions [of the] Attorney General's decision allowing a factual inquiry into the nature of the acts engaged in by Respondent applies where, as here, ICE holds the burden of proving a conviction for a CIMT under 237(a)(2)(A)(i). First, the decision in Silva-Trevino rests on a rationale dependent in part upon language contained only in section 212(a)(2)(A)(i)(I), related to "admission" of certain "acts". [Footnote 4.]
[Footnote 4] The Attorney General Finds the statutory language to be ambiguous as to whether a factual inquiry is appropriate, rather than a strictly categorical one, holding that the language "cuts both ways." He finds that the language requiring a conviction cuts in favor of a purely categorical approach, but that language such as "involving" (which appears in both 212(a)(2)(A)(i)(I) and 237(a)(2)(A)(i)) and language such as "admits" the "commission" of certain "acts" (which appears only in 212 cut in favor of a factual inquiry. Thus, the language in 237 may be said to be less ambiguous, or at least less favoring of a factual inquiry, than is that in 212. See Silva-Trevino, supra, at 693 and 699.
Therefore, counsel is free to argue, and Immigration Judges are free to decide, that Silva-Trevino applies only in cases charging CMT inadmissibility, but not in cases charging CMT deportability.
Aggravated Felonies § 1.1 ; Criminal Defense of Immigrants § 1.1 ; Crimes of Moral Turpitude § 1.1:
STATISTICS - IMMIGRATION-RELATED CRIMINAL PROSECUTIONS RISE ALMOST 16% OVER 2008
The latest Justice Department data show that federal prosecutions reached an all time high in FY 2009. The surge was driven by a sharp increase in immigration filings. According to timely case-by-case data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC), overall federal prosecutions peaked at 169,612, up nearly 9 percent from the previous year. But the increase in immigration filings was much sharper -- 15.7 percent. This means that such prosecutions now make up well over half of all criminal cases brought by the government. Meanwhile, the prosecution of other major crime categories such as drugs, weapons and white collar crime was up only slightly or had actually declined. To obtain the fiscal year-end summary report, go to http://trac.syr.edu/tracreports/crim/223/ Thanks to the Transactional Records Access Clearinghouse.
Post-Conviction Relief for Immigrants § 6.57:
POST CON RELIEF - GROUNDS - STATUTE UNCONSTITUTIONAL - ILLEGAL POSSESSION OF FIREARM BY UNDOCUMENTED PERSON STATUTE ARGUABLY UNCONSTITUTIONAL
Counsel can argue that 18 U.S.C. 922(g)(5)(A) is unconstitutional because it limits the right of the people to bear arms in light of D.C. v. Heller.
The government's arguments are (1) that "illegal aliens" are not part of the "people" for purposes of Second Amendment. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding no extraterritorial applicability of the Fourth Amendment because a noncitizen in Mexico is not part of "people" for Fourth Amendment purposes); and (2) that the limitation on bearing arms is justified in case of "illegal aliens" even under D.C. v. Heller because of their "propensity to criminality." There is a great deal of evidence, however, that immigrants commit 50% to 67% fewer criminal offenses than U.S. citizens commit, so this second argument does not seem factually justifiable. E.g., Radley Balko, The El Paso Miracle: How can a comparatively poor, high-immigration town that sits across the border from super-violent Ciudad Juarez be one of the safest big cities in America?, Reason Magazine, Reasononline (July 6, 2009), http://www.reason.com/news/show/134579.html; Derek Monson, Just the Facts and Reading the Tea Leaves, Sutherland Institute Releases Findings on Undocumented Immigrants in County Jails, http://sutherlandinstitute.org/newsletter/story.asp?n=132&s=328 (undocumented immigrants are not major sources of crime, accounting for less than five percent of state prisoners and less than four percent of county-jail inmates in Utah institutions); http://sutherlandinstitute.org/uploads/immigrationJustTheFacts.pdf; http://sutherlandinstitute.org/uploads/immigrationReadingTheTeaLeaves.pdf. There is troubling language in Verdugo where Court did stated that it had never expressly held that "people" includes the undocumented for purposes of Fourth Amendment protection. There is a potentially significant downside risk to the government's Fourth Amendment argument. Thanks to Dan Kesselbrenner.
Aggravated Felonies § 5.52 ; Criminal Defense of Immigrants § 19.70 ; Safe Havens § 7.78:
AGGRAVATED FELONY - FIREARMS OFFENSES - UNCONSTITUTIONALITY OF STATUTE DEFINING OFFENSE
Counsel can argue that 18 U.S.C. 922(g)(5)(A) is unconstitutional because it limits the right of the people to bear arms in light of D.C. v. Heller.
The government's arguments are (1) that "illegal aliens" are not part of the "people" for purposes of Second Amendment. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding no extraterritorial applicability of the Fourth Amendment because a noncitizen in Mexico is not part of "people" for Fourth Amendment purposes); and (2) that the limitation on bearing arms is justified in case of "illegal aliens" even under D.C. v. Heller because of their "propensity to criminality." There is a great deal of evidence, however, that immigrants commit 50% to 67% fewer criminal offenses than U.S. citizens commit, so this second argument does not seem factually justifiable. E.g., Radley Balko, The El Paso Miracle: How can a comparatively poor, high-immigration town that sits across the border from super-violent Ciudad Juarez be one of the safest big cities in America?, Reason Magazine, Reasononline (July 6, 2009), http://www.reason.com/news/show/134579.html; Derek Monson, Just the Facts and Reading the Tea Leaves, Sutherland Institute Releases Findings on Undocumented Immigrants in County Jails, http://sutherlandinstitute.org/newsletter/story.asp?n=132&s=328 (undocumented immigrants are not major sources of crime, accounting for less than five percent of state prisoners and less than four percent of county-jail inmates in Utah institutions); http://sutherlandinstitute.org/uploads/immigrationJustTheFacts.pdf; http://sutherlandinstitute.org/uploads/immigrationReadingTheTeaLeaves.pdf. There is troubling language in Verdugo where Court did stated that it had never expressly held that "people" includes the undocumented for purposes of Fourth Amendment protection. There is a potentially significant downside risk to the government's Fourth Amendment argument. Thanks to Dan Kesselbrenner.
Criminal Defense of Immigrants § 6.11:
BIBLIO - DETAINERS DETENTION - IMMIGRATION DETAINERS
The Washington Defenders Associations Immigration Project, "Understanding Immigration Detainers: A Basic Primer for Defense Counsel" (Spring 2010), http://www.legalactioncenter.org/sites/DetainerAdvisory.pdf ; The American Immigration Councils Immigration Policy Center, "Immigration Detainers: A Comprehensive Look" (Feb. 17, 2010), http://www.immigrationpolicy.org/sites/default/files/docs/Immigration_Detainers_021710_0.pdf.
Post-Conviction Relief for Immigrants § 6.56:
CAL POST CON -- GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL -- PROSECUTORIAL DUTY TO NEGOTIATE IMMIGRATION -- LOS ANGELES D.A. POLICY PROVIDES EXCEPTION TO NORMAL PLEA BARGAINING RULES WHERE ADVERSE IMMIGRATION CONSEQUENCES ARE DISPROPORTIONATE
The prosecutor has a duty to consider immigration consequences when raised by a defendant in the context of plea negotiations. The Los Angeles District Attorneys Office has posted its policy online, allowing deputy district attorneys to make exceptions to the ordinary plea-bargaining and post-conviction relief settlement policies when adverse immigration consequences are disproportionate, if the approval of a superior is obtained. http://da.co.la.ca.us/sd03-04.htm
Criminal Defense of Immigrants § 8.32:
CRIM DEF -- PROSECUTORIAL DUTY TO NEGOTIATE IMMIGRATION -- LOS ANGELES D.A. POLICY PROVIDES EXCEPTION TO NORMAL PLEA BARGAINING RULES WHERE ADVERSE IMMIGRATION CONSEQUENCES ARE DISPROPORTIONATE
The prosecutor has a duty to consider immigration consequences when raised by a defendant in the context of plea negotiations. The Los Angeles District Attorneys Office has posted its policy online, allowing deputy district attorneys to make exceptions to the ordinary plea-bargaining and post-conviction relief settlement policies when adverse immigration consequences are disproportionate, if the approval of a superior is obtained. http://da.co.la.ca.us/sd03-04.htm
:
CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION - PROBATION VIOLATION IN CRIMINAL COURT MAY OR MAY NOT CONSTITUTE COMMISSION OF A SECOND CMT TO DISQUALIFY THE RESPONDENT FROM THE BENEFITS OF THE PETTY OFFENSE EXCEPTION
A court finding that a defendant violated a condition of probation does not constitute a conviction, and therefore does not establish that the defendant committed a second CMT for purposes of disqualifying him from the petty offense exception to inadmissibility. If the conduct underlying the violation of probation constitutes CMT conduct (i.e., the commission of a second CMT), then the immigrant would be disqualified from the benefits of the POE. Counsel should examine the petition filed in the criminal court alleging a violation of probation, and any attached documents such as police reports, and determine the nature of the conduct resulting in the allegation that the defendant violated probation. If it was a CMT, the government has a basis for the claim that the defendant committed a second CMT and is therefore disqualified from the POE. If it was conduct not constituting a CMT, such as a failure to report to the probation officer, failure to pay a fine, or commission of another criminal offense that is not a CMT, then the probation violation conduct is not a second CMT and the defendant is not disqualified from the POE since s/he did not commit a second CMT. Bear in mind that the disqualification - that the defendant committed a second CMT - is a conduct-based factor, and the noncitizen is free to contest it as a factual matter. For example, if a police report attached to the probation violation petition accuses the defendant of committing a CMT, immigration counsel is free to call witnesses in immigration court to attempt to persuade the court that the defendant did not do it, or that what the defendant did was not a CMT.
:
CRIM DEF - CHART OF IMMIGRATION CONSEQUENCES OF CALIFORNIA CRIMES
A valuable chart of the immigration consequences of California crimes is available on the Immigrant Legal Resource Center web site at www.ilrc.org/Cal_DIP_Chart_by_section.pdf. A chart for federal offenses, and charts for several other charts, are available on the web site of the National Immigration Project at www.nationalimmigrationproject.org.
:
CRIM DEF - CHART OF IMMIGRATION CONSEQUENCES OF CALIFORNIA CRIMES
A valuable chart of the immigration consequences of California crimes is available on the Immigrant Legal Resource Center web site at www.ilrc.org/Cal_DIP_Chart_by_section.pdf. A chart for federal offenses, and charts for several other states, are available in the Free Resources section of our site: http://www.criminalandimmigrationlaw.com/_imm_cons.php.
Post-Conviction Relief for Immigrants § 5.14:
POST CON RELIEF " VEHICLES " 1983 DECLARATORY JUDGMENT
Practice Advisory. It may be possible to obtain relief from collateral consequences of an unconstitutional conviction, for which custody has expired, by means of a civil rights action under 42 U.S.C. 1983. Cf. Skinner v. Switzer, ___ U.S. ___, 2011 WL 767703 (Mar. 7, 2011) (convicted state prisoner may seek DNA testing of crime-scene evidence in 1983 action, since Rooker-Feldman doctrine that loser in state court cannot use 1983 action to obtain federal review of constitutionality of state conviction did not bar claim). The Court stated: District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. ----, ----, 129 S.Ct. 2308, 174 L.Ed.2d 38 left unresolved the question whether a convicted state prisoner seeking DNA testing of crime-scene evidence may assert that claim in a civil rights action under 42 U.S.C. 1983 or may assert the claim in federal court only in a petition for a writ of habeas corpus under 28 U.S.C. 2254. In Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), we comprehensively surveyed this Court's decisions on the respective provinces of 1983 civil rights actions and 2254 federal habeas petitions. Habeas is the exclusive remedy, we reaffirmed, for the prisoner who seeks immediate or speedier release from confinement. Id., at 82, 125 S.Ct. 1242. Where the prisoner's claim would not necessarily spell speedier release, however, suit may be brought under 1983. Ibid. Adhering to our opinion in Dotson, we hold that a postconviction claim for DNA testing is properly pursued in a 1983 action. Success in the suit gains for the prisoner only access to the DNA evidence, which may prove exculpatory, inculpatory, or inconclusive. In no event will a judgment that simply orders DNA tests necessarily impl[y] the unlawfulness of the State's custody. Id., at 81, 125 S.Ct. 1242. Skinner v. Switzer, ___ U.S. ___, ___, 2011 WL 767703 (Mar. 7, 2011). There are some old U.S. Supreme Court cases, like Burgess v. Texas, that basically say it violates the constitution to impose any penalty on account of an unconstitutional conviction. Now, Padilla says criminal deportation is a "penalty". Maybe that means it's unconstitutional to impose deportation on account of an unconstitutional conviction. It might be possible to bring a 1983 action for a declaratory judgment that the prior state conviction that violates Padilla was imposed in violation of the Constitution. If successful, counsel could take that declaratory judgment holding the state prior conviction was unconstitutional into immigration court and argue that respondent is not trying to challenge the constitutionality of the state conviction in immigration court. Respondent has already done that in federal court in the 1983 action and prevailed, so the immigration court must give full faith and credit to the district court judgment finding the state prior conviction unconstitutional. Counsel can argue that the Burgess line of cases holds the federal courts cannot impose any penalty on account of an unconstitutional conviction. The federal habeas mootness cases hold this question of the constitutionality of a prior conviction is not moot so long as any collateral consequence, such as deportation, continues to flow from it, or potential impeachment as a witness on account of the conviction, or deprivation of the right to vote, etc., so the expiration of custody does not render these issues moot. This would be a difficult avenue to pursue, since the Supreme Court has generally precluded federal courts from entertaining post-conviction attacks against state convictions. See, e.g., Premo v. Moore. But there may be something there.
Aggravated Felonies § 2.11 ; Criminal Defense of Immigrants § 6.33 ; Crimes of Moral Turpitude § 3.11:
BIBLIOGRAPHY " DETENTION " IMMIGRATION DETENTION RESOURCES
Noncitizens facing immigration detention and the advocates who represent them face a myriad of legal issues, ranging from eligibility for bond or parole, the location of and transfer between detention facilities, appearances in Immigration Court and eligibility for relief from removal, and harsh detention conditions. We want to alert you to resources on detention issues available through the Immigration Advocates Network (IAN), our partners, and other advocates. The Immigration Advocates Network library, at http://www.immigrationadvocates.org contains resources including: - A link to the Online Detainee Locator System; - A folder on detention in the Immigration Policy library; - A folder on immigration detainers; and - A folder on detention and bond Other resources on detention issues: American Immigration Council, http://www.legalactioncenter.org/, provides practice advisories on diverse immigration topics, including detention and enforcement. The ACLU Immigrants' Rights Project, at http://www.aclu.org/immigrants-rights/immigrant-detention. The Catholic Legal Immigration Network (CLINIC) offers resources specific to detention at http://cliniclegal.org/resources/ . The Detention Watch Network (DWN) is a nationwide coalition that addresses a variety of detention issues and offers resources and support at http://www.detentionwatchnetwork.org/. Lutheran Immigration and Refugee Service Lutheran Immigration and Refugee Service (LIRS) provides a chart on the annual detention population for fiscal years 1994 through 2011 at http://tinyurl.com The National Immigration Forum offers resources on detention and enforcement at http://www.immigrationforum.org The National Immigrant Justice Center provides resources on detention at http://www.immigrantjustice.org/ The National Immigration Law Center (NILC) offers resources on arrest and detention at http://www.nilc.org/ The National Immigration Project of the National Lawyers Guild provides information about enforcement and detention-related issues, including detention standards litigation, at http://www.nationalimmigrationproject.org/ Thanks to Immigration Advocates Network
Aggravated Felonies § 2.45 ; Criminal Defense of Immigrants § 24.29 ; Crimes of Moral Turpitude § 3.44:
RELIEF " WAIVERS " 212(H) WAIVER " PRACTICE ADVISORY
The Immigrant Legal Resource Center has published a practice advisory about three aspects of a waiver of inadmissibility under INA 212(h) at ww.ilrc.org/criminal.php; scroll down to free on-line resources. The topics are which LPRs don't come within the LPR bar to 212(h); using 212(h) as a direct defense to a deportation charge; and 212(h) as an option when LPR cancellation is unavailable. Thanks to Katherine Brady, Senior Attorney, Immigrant Legal Resource Center.
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Aggravated Felonies: §5.11
of Title 18, United States Code (relating to child pornography).” [1] These offenses are... children,” punishing the use of a minor to engage in any sexually explicit conduct for... guardian who permits or assists the minor to do so. [2] 18... knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering: (a) to receive, exchange, buy, produce, display, distribute, or reproduce any visual... that the person “knows or has reason to know that such notice or advertisement will... someone who knowingly publishes a notice offering to distribute by computer a visual depiction of... children over the internet may be considered to be conduct that violates this statute. There may be other defenses relating to lack of knowledge the subject was a... the client if immigration counsel did not to have to defend against this possibility at all. ... U.S.C. § 2252, entitled “Certain activities relating to material involving the sexual exploitation of children,”... maximum for a violation, attempt, or conspiracy to violate subparagraphs (a)(1)-(3). With a prior... chapter 109A, the term is from five to 15 years. Subparagraph (b)(2) provides a five-year maximum for a violation, attempt, or conspiracy to violate (a)(4). To qualify as an aggravated felony, all the... 263.05, did not constitute an offense relating to child pornography, and was therefore not an... by the aggravated felony provisions require, i.e., to act intentionally or knowingly: “Unless the scienter element is read so as not to attach to the parent’s knowledge of the nature of... of 1996 violated the First Amendment right to free speech in defining child pornography to include “virtual pornography,” not produced using actual... Among other possible safer alternatives [1] to a conviction that would clearly trigger removal... under 18 U.S.C. § 2252A, when applied to child pornography as defined in 18 U.S.C.... involved are more broadly defined, by reference to the “child pornography” definition at 18 U.S.C. § 2256(8), to include a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging... This portion of the definition is recognized to cover the act of “morphing,” i.e., altering... children and are in that sense closer [to images made using actual minors engaged in... definition covers materials that would be insufficient to constitute a violation of 18 U.S.C. §
Post-Conviction Relief for Immigrants: §8.41
provides that an executive pardon is effective to eliminate the deportation consequences of one or... § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v) (2000); no implicit waivers may be read into statute;
Tooby's California Post-Conviction Relief for Immigrants: §5.19
It may be possible for the prosecution to file any additional charges it could have... It would be possible for the client to be convicted of more charges, or greater charges, than those to which a plea was entered originally, and the client may potentially be sentenced to a greater term of imprisonment. [1] ... enhancements, the law may require the court to impose greater punishment. [2] Before appealing, it is essential for counsel carefully to consider whether the appeal might result in... at an appellate doorstep he subjects himself to thorough scrutiny of the proceedings below." [3]... conviction was unauthorized, following a guilty plea to a crime that did not exist (conspiracy to commit attempted murder). The appellate court... It would be possible for the client to receive a greater sentence if reconvicted. ... was reopened and the judge is sympathetic to the prosecution. · The prosecution is able to force conviction of offenses and enhancements that trigger mandatory sentencing laws, so the judge has no choice but to sentence the client more harshly the second time around. · The prosecution is able to force conviction of more or greater offenses... The client has reoffended (or is thought to be continuing a life of crime, even... that the court has a good reason to hand down a stiffer sentence the second... that the client receive full and mandatory credit for time served for every day spent... of appeal, [5] though this protection appears to be weakening. [6] Counsel can... and that the client must be given credit for all time served, and all other... served, but if the court can point to some changed circumstance since the original sentence... is unlikely and only occurs in five to ten percent of the cases. The... has gone into the case, the expense to the state of a jury trial, and the difficulty for the prosecution to reconstruct an old case. As a practical matter, because of the law requiring credit for time served, and because the case... that the court would resentence the client to a greater punishment after reconviction unless the court were required to do so by mandatory sentencing laws. ... aware of this risk when deciding whether to go forward with an attack on the... at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence. ... after retrial if legitimate reasons are given to justify increased penalty.].
Aggravated Felonies: §5.42
controlled substances conviction will not be sufficient to sustain deportability as an aggravated felony drug... of conviction may be violated with regard to one or more of those substances; and (3) either the record of conviction is completely silent as to the controlled substance involved, or the record... 1965, former INA § 241(a)(11) made subject to deportation any noncitizen who “has been convicted... . . any law or regulation relating to the illicit possession or traffic in narcotic... Matter of Paulus was decided, there was no definition of “narcotic drug” for immigration purposes,... adopted that would have included whatever happened to be considered a “narcotic” in California or... that limited the term “narcotic drug” [3] to substances defined as a “narcotic drug” by... specifically limited the definition of “controlled substances” to those substances defined as such by federal... not controlled at all. [7] Where no particular controlled substance is identified in the... § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C) (reason to believe illicit trafficking ground of inadmissibility); INA... . Probably the most direct threat to the survival of the Paulus rule is... drug paraphernalia, [2] was a conviction “related to” a controlled substance. The court found... an object is drug paraphernalia,” including intent to use, a conviction under the statute was clearly “related to” a controlled substances offense. [3] ... of drug paraphernalia conviction was not related to any particular drug. The Arizona statute... “controlled substance” was limited under the INA to the federal drug schedules, and that “the... that the Arizona statute was “plainly intended to criminalize behavior involving the production or use... idea that possession of paraphernalia is “related to” a controlled substance, no case has yet cited Luu-Le as a challenge to the Paulus rule. [6] However, there... took a “close enough” position by failing to hold that a conviction under the Arizona... could not qualify as an offense “related to” a controlled substance unless the record of conviction made clear that the paraphernalia was intended to be used with a federally controlled substance. This holding appears to violate the Paulus rule. This holding... but the exact elements of the offense to which the noncitizen entered a plea are... than a controlled substance, there is room to distinguish Luu-Le from a straight Paulus situation.... drug conviction (but rather a conviction “related to” drugs), did not directly consider the Paulus... , 222 F.3d 728 (9th Cir. 2000) to a conviction for possession of paraphernalia). [7]... 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively... (precedent not controlling on issue not presented to prior panel), cert. denied , 113 S.Ct.... federal drug schedules and the state schedules to determine that the noncitizen in that case must have been convicted of an offense related to a federal controlled substance. Mr.... all controlled substances proscribed by Connecticut law to only hallucinogenic or narcotic drugs. [3] ... list, so the court turned its focus to determining whether all “narcotic” drugs listed in... rejected counsel’s argument that the substance had to be proscribed under federal law at the... beyond merely holding that the substance had to be proscribed under federal law by the... conviction limited the applicable state controlled substances to hallucinogens and narcotics. There may still... the federal schedules. It is important to remember who has the burden of proof... the federal drug schedules were retroactively applied to Mr. Gousse, charged as an aggravated felon,... deportation grounds are not expressly made retroactive to convictions occurring before the deportation ground came into existence or was expanded to cover the present case. Surprisingly, both Luu-Le and Gousse fail to cite or mention Matter of Paulus , even though the circuit courts are normally required to give Paulus deference under Chevron [7] to BIA decisions. Both decisions were... placed the burden on the noncitizen appellants to show that the court had petition for... Cir. 2000) ( Chevron deference not accorded to construction of state penal code). [8] Luu-Le... INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (no jurisdiction to review orders of removal on criminal grounds). (D) How to Make A Drug List Comparison. The... through April 26, 2004. To make an alphabetical proscribed drug list of... most recent state drug schedule in an electronic format, and paste this list into a... the individual drugs remains. Make sure to indicate the schedule in which each drug... a number, and give that same number to each alternative name (or alias) for the... “sort” function of the word processor program to alphabetize the list. To make a drug-by-drug comparison between the state... down the list, use the strikeout function to mark any highlighted/non-highlighted drug pairs. These pairs each represent... the federal, list. 7. Return to the top of the list and use the “find” function to find any AKAs of the drugs stricken.... as an aggravated felon, the federal schedules to apply in making the comparison are those... immigration proceedings commenced, while the state schedules to apply are those that existed at the... §§ 1308.11, et seq . Updates to the schedules are tracked on the following site: http://www.deadiversion.usdoj.gov/schedules/actions/90_actions.htm
Criminal Defense of Immigrants: §3.36
criminal history records, it is most important to obtain the FBI rap sheet concerning the... the FBI record by writing a letter to the FBI asking for a “background search.”... fee (certified check or money order payable to the “Treasurer of the United States ”).... a return address and the client’s authorization to release the information to counsel. This information should be sent to: Federal Bureau of Investigation Criminal Justice... telephone number is (304) 625-3878. Check to see if any changes of fee, procedure,... FBI criminal history report be sent directly to his or her attorney, if desired. It generally takes six to eight weeks or so to receive the report. [1] The police department may charge a small fee, usually no more than $10, for the service of taking the client’s fingerprints and providing a completed fingerprint card to the client. (E.g., California Penal Code § 13300e.) The client should be instructed not to inform the police department, DMV, or other... contemplated that these fingerprints will be submitted to the DHS and the agency may refuse to provide the prints under those circumstances, since... The client should simply state s/he wants to see his or her own criminal record.
Tooby's California Post-Conviction Relief for Immigrants: §11.19
for one conviction of crimes relating to domestic violence, stalking, and the abuse or... certain offenses. The admissibility statute referred to lists (a) convictions of crimes of moral turpitude, (b) convictions of offenses related to a listed federal controlled substance, and (c) situations in which the DHS has “reason to believe” the noncitizen is or has been... listed federal controlled substance. In order to be inadmissible, as the mandatory detention statute... offense, it is necessary for the noncitizen to have been convicted of the commission of... under this statute. In response to an increasing number of court decisions, [6]... 8 U.S.C. § x 1226(c), apply only to noncitizens released from criminal sentence on or... the mandatory detention statute applying “normal factors to determine bond conditions, such as an individual's likelihood of danger to the public, flight risk, health factors, equities,... the Transition Period Custody Rules is subject to mandatory detention pursuant to section 236(c) of the Immigration and Nationality... Custody Provisions (7/12/99) effective 7/13/99. If no actual custody is imposed, the sentence date
Tooby's California Post-Conviction Relief for Immigrants: §11.16
hold, do not assume it is hopeless to attempt to obtain his or her release. The basic strategy is to bail the client out of criminal custody... It may not be an immigration “request to detain” at all, but merely a notice... obtaining the client’s liberty from the DHS non-hold. [1] If it was lodged... by the proper written form, it is no longer effective as an immigration hold, and... within 48 hours, and can then attempt to bond out of immigration custody. If
Tooby's California Post-Conviction Relief for Immigrants: §4.36
criminal history records, it is most important to obtain the FBI rap sheet concerning the... the FBI record by writing a letter to the FBI asking for a “background search.”... fee (certified check or money order payable to the “Treasurer of the United States ”).... a return address and the client’s authorization to release the information to counsel. This information should be sent to: Federal Bureau of Investigation Criminal Justice... telephone number is (304) 625-3878. Check to see if any changes of fee, procedure,... FBI criminal history report be sent directly to his or her attorney, if desired. It generally takes six to eight weeks or so to receive the report. [1] The police department may charge a small fee, usually no more than $10, for the service of taking the client’s fingerprints and providing a completed fingerprint card to the client. (E.g., California Penal Code § 13300e.) The client should be instructed not to inform the police department, DMV, or other... contemplated that these fingerprints will be submitted to the DHS and the agency may refuse to provide the prints under those circumstances, since... The client should simply state s/he wants to see his or her own criminal record.
Post-Conviction Relief for Immigrants: §5.3
Matching the Vehicle to the Immigration Effect Counsel must first determine what change in the criminal history is needed in order to avoid or ameliorate the adverse immigration effect to which the client is subject. For... of violence aggravated felony, then a motion to reduce a felony to a misdemeanor may be sufficient to avert the immigration damage. If time is needed to assess the situation, it may be possible to file a direct appeal from the conviction, in order to avoid a “final” conviction and thus obtain the client’s release from mandatory immigration detention and buy time to plan a more durable strategy. ... (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS , 655... (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality
Criminal Defense of Immigrants: §10.18
Tactics to Avoid Sentence Imposed (A) In General... in which the court orders the defendant to serve a certain length of time in... can employ various tactics in an effort to prevent this outcome: (1) Obtaining a sentence of less than the trigger amount; (2) Waiving credit for time previously served; (3) Waiving future credit for time served; (4) Stacking shorter sentences... the level of the offense from felony to misdemeanor. See §§ 11.13-11.15, infra .... Sentence Shorter Than the Trigger Amount . To achieve a safe haven sentence of less than a trigger amount, counsel can ask the court (1) to decline to order a prison sentence at all, and to require service of no more than 364 days in custody or less as a condition of probation, or (2) to impose a sentence shorter than one year... can therefore expand the actual time served to be equivalent to a sentence considerably longer than the sentence ordered by the court, and thus obtain non-trigger sentences for more serious cases. ... Counts. Counsel can ask the court to sentence the defendant to shorter, non-trigger sentences on different counts, and then order they be served consecutively, so long as each sentence fails to qualify independently as a trigger length. ... 360-day sentences on four different theft convictions, to run consecutively, without receiving a “sentence imposed” of one year or more on any single count. No single count would be considered to be an aggravated felony conviction, and the... (6) Reduction from Felony to Misdemeanor . If the criminal court reduces the level of the offense from felony to misdemeanor, that reduction is binding on the... maximum possible sentence the court can impose to the misdemeanor maximum. [3] Therefore, even... the sentence ordered must now be considered to be no greater than the misdemeanor maximum for the... of California “wobbler” offense from a felony to a misdemeanor offense, since reductions of sentences
Criminal Defense of Immigrants: §19.31
of Title 18, United States Code (relating to child pornography).” [1] These offenses are... children,” punishing the use of a minor to engage in any sexually explicit conduct [1]... guardian who permits or assists the minor to do so. [3] 18... knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering: (a) to receive, exchange, buy, produce, display, distribute, or reproduce any visual... that the person “knows or has reason to know that such notice or advertisement will... someone who knowingly publishes a notice offering to distribute by computer a visual depiction of... children over the internet may be considered to be conduct that violates this statute. There may be other defenses relating to lack of knowledge the subject was a... the client if immigration counsel did not to have to defend against this possibility at all. ... U.S.C. § 2252, entitled “Certain activities relating to material involving the sexual exploitation of children,”... maximum for a violation, attempt, or conspiracy to violate subparagraphs (a)(1)-(3). With a prior... chapter 109A, the term is from five to 15 years. Note that this list of the two no-substantive offenses of attempt and conspiracy gives rise to the argument that other unlisted non-substantive offenses are not included. See Appendix... maximum for a violation, attempt, or conspiracy to violate (a)(4). See Appendix G, infra . To qualify as an aggravated felony, all the... child engaging in “sexual conduct,” as opposed to “explicit sexual conduct.” Counsel could therefore... 263.05, did not constitute an offense relating to child pornography, and was therefore not an... by the aggravated felony provisions require, i.e., to act intentionally or knowingly: “Unless the scienter element is read so as not to attach to the parent’s knowledge of the nature of... of 1996 violated the First Amendment right to free speech in defining child pornography to include “virtual pornography,” not produced using actual... Among other possible safer alternatives [1] to a conviction that would clearly trigger removal... under 18 U.S.C. § 2252A, when applied to child pornography as defined in 18 U.S.C.... involved are more broadly defined, by reference to the “child pornography” definition at 18 U.S.C. § 2256(8), to include a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging... This portion of the definition is recognized to cover the act of “morphing,” i.e., altering... children and are in that sense closer [to images made using actual minors engaged in... definition covers materials that would be insufficient to constitute a violation of 18 U.S.C. §
Criminal Defense of Immigrants: §6.35
authorities will actually make it a priority to detain, [1] setting out four categories, in... detention can be released only if necessary to protect a witness, a person cooperating with... that release would not pose a danger to persons or property or a flight risk.... convictions). Noncitizens who are a danger to the community or a flight risk, those... detention . Noncitizens who are inadmissible, non-criminal noncitizens not in expedited removal proceedings, noncitizens... apprehended at a worksite for committing fraud to get a job. Category 4... in expedited removal who have been referred to full removal proceedings based on fear of
Tooby's California Post-Conviction Relief for Immigrants: §10.47
provides that an executive pardon is effective to eliminate the deportation consequences of one or... § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v) (2000); no implicit waivers may be read into statute;
Safe Havens: §5.6
counsel can obtain the basic information necessary to brief immigration counsel on the immigration situation... so, make photocopies. Counsel may need to ask an immigration attorney to interpret the documents. [1] Often,... wrongly that s/he now has a green card. If somebody has a green card, s/he may use shorthand and wrongly describe... the letter A) which is the key to finding his or her record when you... Answering the following questions is necessary to determine a client’s current or potential immigration... immigration specialist is consulted, s/he will need to know this information in order to diagnose the client’s situation. ● ... how long? The date of adjustment to permanent residency will appear on the client’s green card. ● How long has... Would the client’s employer help the client to immigrate? [4] ● Has... by the border patrol and being persuaded to sign a waiver form and accept a... See § 5.10, infra , on how to verify the client’s immigration situation. [3] See... Immigration § 11.1 (2004). [4] For most non‑professional workers, this may yield few results. ... U.S. citizen or national, it is necessary to determine the client’s exact immigration status, since... consequences of criminal cases, it is useful to group noncitizens into the following categories: (1) Lawful permanent residents, or green card holders, have been lawfully admitted to the United States to live and work permanently. The chief concern of a lawful permanent resident is usually to avoid deportation. An LPR who has... person may also care about preserving eligibility to naturalize by avoiding any conviction or other... are inadmissible, they may not be allowed to return after a trip abroad, even if... than 180 days is generally not subject to the rules of admissibility upon returning, but one exception to this rule occurs when s/he has committed... If an LPR is unable to avoid a conviction that triggers deportation or... from naturalization, s/he may still be able to qualify in immigration court for some sort... in a conviction, s/he will be eligible to apply for cancellation of removal to avoid deportation, or INA 212(h), 8 U.S.C. § 1182(h) relief to avoid inadmissibility, if s/he can avoid an... admitted into the United States on a Non-Immigrant Visa, unlike LPRs, “enter the U.S. for a temporary period of time and are restricted to the activity consistent with their visas. ... . . . they are more likely to obtain waivers of inadmissibility.” [3] ... into the U.S. , they are subject to the grounds of deportability. If they wish to adjust status, and obtain immigrant visas so they have Lawful Permanent Resident status, or if they wish to leave the U.S. and return, they must... persons granted political asylum have been admitted to the United States or allowed to remain in the United States because of... status, but members of both are eligible to adjust status to LPR after being present in the U.S.... is obviously especially urgent for these persons to avoid deportation to the place where they will likely be... the U.S. , and are therefore subject to the grounds of deportation. However, in practice, a refugee should be subject to removal proceedings only if s/he is inadmissible,... cannot avoid inadmissibility, s/he may be able to adjust status to LPR under INA § 209, 8 U.S.C.... on the ground the DHS has reason to believe s/he is or has ever been a drug trafficker (even if there is no conviction of drug trafficking), [6] and thereby... [7] If s/he cannot adjust status to LPR, the next goal is to preserve eligibility for the relief of withholding... of sentence. [9] Most asylees want to obtain LPR status, and so must avoid... If this is not possible, they wish to preserve eligibility for the special waiver or... be eligible now or in the future to obtain lawful permanent resident status, political asylum,... relief, principally eligibility for adjustment of status to LPR (through avoiding inadmissibility), or eligibility for... Even if the client does not appear to be eligible now or in the future to obtain LPR status, asylum, or other relief from removal, or does not desire to remain in the United States now or to return lawfully in the future, it may still be in the client’s interest to avoid certain criminal dispositions that trigger immigration... be much better off without a roadblock to obtaining lawful status. (b) The client may wish to obtain various immigration benefits even if s/he... 2002-2003) (emphasis supplied). [4] These include seeking to enter the U.S. to engage in espionage, sabotage, any other unlawful activity, any activity to oppose or overthrow the U.S. government by... inadmissibility may be granted “for humanitarian purposes, to assure family unity, or when it is
Crimes of Moral Turpitude: §2.12
Rule. Long-standing law requires a conviction to be final before it will trigger deportation.... finality requirement, at least as it applied to direct appeals of a conviction. [5] A non-final conviction can also sometimes be used to enhance sentence in a criminal case. [6]... 1990) (Texas deferred adjudication disposition held not to be a final conviction); Martinez-Montoya v. INS... I. & N. Dec. 638 (BIA 1968) (no conviction despite guilty plea); Matter of LR... 539, 541 (BIA 1957). This applied to foreign convictions as well. Marino v. INS... been extinguished by presidential amnesty and refused to hear the appeal and where the defendant... on probation or on suspended sentence pursuant to section 1081 of the Canadian Criminal Code).... been extinguished by presidential amnesty and refused to hear the appeal and where the defendant... on probation or on suspended sentence pursuant to section 1081 of the Canadian Criminal Code).... (2d Cir. 1991). A conviction subject to collateral attack is still final for the... 146, 146 (S.D.N.Y. 1995).”); Johnson v. INS No. 3:03 CV96(JBA) (D. Conn. Jan. 21, 2003)... Cir. 1976), as it is claimed only to be subject to pending, not successful, collateral attack under 28... (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS , 655... (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality... “[O]n the record here we are unable to say that the conviction has attained such finality as to support an order of deportation,” and therefore... this point. When Congress fails expressly to overrule existing judicial decisions, it is deemed to have approved of them. [4] In... all circuits that have not expressly held to the contrary, and the finality requirement should... circuits that have mistakenly suggested or held to the contrary, since the adverse decisions may... finality requirement but remanding because there was no evidence that court had imposed any punishment,... on liberty) petitioner, as required by statute to constitute a conviction). [3] Pino v. Landon... of judicial interpretation of a statute and to adopt it when it re-enacts a statute... Dec. 44 (BIA Apr. 28, 1995) (right to appeal such issues as whether a violation... of a final conviction for immigration purposes; to disturb finality, issues on appeal must relate to the issue of “guilt or innocence of the original charge.”). This decision contravenes authorities holding no conviction exists unless sentence has been imposed.... defendant has missed the deadline by which to appeal, s/he may nonetheless attempt to file a late notice of appeal to start the appellate process. When... assistance of counsel based on counsel’s failure to inform the defendant about the deadlines by which to appeal, or to advise the defendant about possible grounds on... reversed on direct appeal, it is appropriate to reopen deportation proceedings since the conviction no longer exists as a basis for deportation.... assistance will be established entitling the defendant to an out-of-time appeal where counsel fails to “consult” with a criminal defendant about the... or a rational defendant would have wanted to appeal under the circumstances of the case).... 440 (6th Cir. July 1, 2004) (request to begin belated appeal does not affect finality... sentence. [1] These decisions, however, appear to limit their holdings concerning finality to the deferred adjudication context, and they have not been extended to invalidate direct appeal as a means of... Texas law and the Full Faith and Credit Act, 28 U.S.C. § 1738, required the federal criminal court to honor that conclusion, since "the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal... completion of probation has been deemed not to impair the finality of the conviction. [2]... action in the deportation case be deferred to await completion of probation and extinction of... set aside on collateral attack, it ceases to exist for immigration purposes even if an appeal from the vacatur is pending, because there is no clear and convincing evidence the conviction still... final, at the time of defendant’s deportation, to qualify as aggravated felony conviction for purposes... until the conviction has been overturned pursuant to such a motion); Matter of Gabryelsky ,... 506 (BIA 1992); Rivas v. INS , No. 02 Civ. 677(DLC) (S.D.N.Y. Jan. 27, 2003)... 164 (2d Cir. 1991). A conviction subject to collateral attack is still final for the... 146, 146 (S.D.N.Y.1995).”); Johnson v. INS , No. 3:03CV96(JBA) (D.Conn. Jan. 21, 2003) (unpublished) (“Moreover,... Cir. 1976), as it is claimed only to be subject to pending, not successful, collateral attack under 28... (5th Cir. 1982) (motion for status conference to reduce sentence); Morales-Alvarado v. INS , 655... (possibility of obtaining approval of discretionary appeal to state highest court does not impair finality... (INS and BIA agreed on administrative policy to postpone proceedings until the noncitizen has had a reasonable opportunity to complete probation and apply for expungement of... (6th Cir. Jan. 31, 2008) (petitioner's challenge to the state court conviction in immigration court
Criminal Defense of Immigrants: §3.43
is absolutely necessary . There is no substitute for consulting an immigration expert to find out (a) the client’s exact immigration situation prior to any new conviction, and (b) the exact... Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005). Crimes-related deportation defense... rarely, handle a removal case or try to obtain cancellation of removal for a client... client with criminal issues, it is necessary to inquire specifically into potential immigration counsel’s experience... Immigration Counsel . It is important to balance expertise in this specialty against the advantages... · has offices very close to the immigration court. On the... forms of relief available in immigration court to noncitizens convicted of crimes; · is accustomed to cooperating with criminal and post-conviction counsel; and · either knows or is willing to learn the necessary criminal and post-conviction law.... plea bargains? Have you spoken recently to criminal lawyers’ groups on this topic? ... (You can then call them as references to check the lawyer out.) Ample resources exist to assist criminal defense counsel in obtaining answers to the immigration questions that arise during the... Expert Resource Centers. Ample resources exist to assist criminal defense counsel in obtaining answers to the immigration questions that arise during the... Lawyers Association (AILA) will often be able to help. The Washington , D.C. ,... Resources (both live and written) specific to individual state include: California . ... in San Francisco , California is a non-profit organization that provides advice, training and materials to non-profit community agencies and immigrants’ organizations. For... . · M. Baldini-Potermin, Defending Non-Citizens In Minnesota Courts (1998), distributed by the... the New York State Defenders Association works to defend the legal, constitutional and human rights of immigrants facing criminal or deportation charges. IDP seeks to (1) minimize deportation and detention under current... including “Know Your Rights” charts and guides to help unrepresented individuals understand the criminal justice... resources affecting particular states, see the Bibliography to this volume, Appendix G. [1] D.... also provides a referral service (fees not to exceed $100.00 per consultation) by calling 1-800-954-0254, or sending and email to ilrs@aila.org. You will need to provide your name, location and describe your
Criminal Defense of Immigrants: §11.77
sentence is vacated, a wonderful opportunity exists to settle the case on acceptable terms that... a human being in their eyes. No one wants time-consuming litigation of a case... Presumably the client has given them no fresh cause to punish him or her more severely (aside... can sometimes sweeten the pot by offering to have the client begin anew a three... year, the defense can in fact offer to increase the hanging time, exposing the defendant to a greater term of imprisonment in the... client may be in a strong position to bargain if the case is an old... good record since the incident giving rise to the charge, and the equities in his... can take a credible position of refusing to acquiesce in any outcome that will destroy the family and permanently exile the client to a foreign land. The client can also threaten to put prosecution and court to the extensive work and considerable expense of a jury trial, because the issue is so important to the client, unless an acceptable result is... the penalty, there may be little or no risk of any downside for the client... the nature and (b) number of charges to which the client will plead guilty or no contest, and (c) the nature of the sentence the client will receive. To analyze goals for the new disposition, counsel... the information the immigration lawyer will need to diagnose the situation. See Appendix A,... during the course of plea‑bargaining in order to minimize adverse immigration consequences: (1) Counsel can attempt to find a related (or even unrelated) [1]... trigger removal or other adverse immigration consequences to which to plead. In the alternative, the client can plead to two or more offenses, none of which trigger immigration problems, instead of pleading to one that involves immigration damage. EXAMPLE: In one case, after a motion to vacate a voluntary manslaughter conviction had been granted, the client pleaded guilty to involuntary manslaughter and received a sentence of... eliminated. (2) Counsel can offer to have the client serve a greater traditional criminal penalty in return for adjusting the charge to one that does not have disastrous immigration consequences. For example, a client might agree to serve an additional six months in jail,... in return for changing the charged offense to a different offense which does not trigger... immigration consequences. (3) Counsel can offer to have the client plead to two misdemeanors in lieu of a felony, in order to avoid the one felony‑three misdemeanor rule disqualifying applicants for amnesty and Family Unity, or to multiple infractions in lieu of a misdemeanor... For example, the client can bargain to obtain suspension of imposition of sentence, a... purpose. (5) Counsel can attempt to persuade the prosecution to permit a plea to a non‑narcotics offense in lieu of a deportable narcotics... possible. (6) Counsel can bargain to obtain a plea to a non-firearms offense with a firearms sentencing enhancement, or other options to avoid deportability for a firearms offense. ... [1] It is of course perfectly proper to plead a client guilty to a crime of which s/he is completely innocent — as a tactical decision to avoid worse consequences (criminal or immigration), if... simply enter a plea of guilty pursuant to People v. West, 3 Cal.3d 595, 91... Thus, the parties can negotiate a plea to any mutually acceptable offense, and thus avoid... many district judges resist accepting or refuse to accept a plea if the defendant maintains... more closely related the negotiated offense is to the offense committed, the easier it is to convince prosecution and court to accept the disposition. [2] See § 10.92,... cannot be punished for exercising the right to vacate the conviction, this protection has become riddled with exceptions. For example, there is no presumption of vindictive prosecution where a greater... at any time the error is brought to the notice of the court, and there is no bar to imposition of a greater proper sentence. [2]... for his action in obtaining post-conviction relief to vindicate a constitutional right. [1] Alabama... valid waiver under due process). (C) Credit for Time Served . When the... requires that s/he receive full and mandatory credit for time served for every day previously... may exercise his or her statutory right to disqualify the original judge, [1] even if... The intent of this statute is to protect a successful appellant from retaliation by... statute of limitations defense applies where applicable to require dismissal of charges that were filed... [1] State courts can be urged to adopt the same rule, for the same... any charges that were originally filed prior to the time the operative statute of limitations ran. It only operates to restrict the prosecution’s ability to file new charges, after the original conviction... as a limit on the prosecution’s ability to threaten greater charges than had originally been
Criminal Defense of Immigrants: §2.23
counsel have a legal and ethical responsibility to protect our clients from damaging immigration consequences... · It’s the right thing to do. · Ethics considerations require it. · Courts expect us to do it. · Standards of the... of possible immigration consequences. · Duty to investigate. · Duty to use mitigating facts to obtain better plea and lower sentence. · Duty not to give affirmative misadvice. · Duty to advise the client of actual immigration consequences. · Duty to defend against collateral consequences. Moreover, it is in our own interest to do so: · Desire to deliver excellent legal services. · Benefits... on court appointed panels. · Damage to reputation within the profession. · Damage to reputation among client communities. · Disciplinary sanctions: disbarment and lesser penalties. · Damage to self-esteem. · Loss of income. ·... mental distress. · Costs of attempting to rectify a mistake. These are the... If you want, you can skip to the conclusion, [1] which addresses the question:... And offers a surprisingly simple way to do so that uses our knowledge and skills as criminal lawyers, but does not require us to learn the complexities of immigration law .
Tooby's California Post-Conviction Relief for Immigrants: §10.1
of probation or other evidence of rehabilitation to clear defendants’ criminal convictions from their records... recommendations against deportation (JRADs) that were, prior to November 29, 1990, granted by criminal sentencing judges to eliminate deportation and other immigration consequences of... been ameliorated , some discussion is given to ways in which those consequences can be... (2) Expungements of misdemeanors where no probation was granted. See § 10.60,
Tooby's California Post-Conviction Relief for Immigrants: §7.46
Failure to Advise the Noncitizen Defendant of the Right to Contact the Consulate The Vienna Convention on Consular Relations (VCCR) is a treaty to which the United States is a party and which requires local law enforcement officers to advise a foreign national, who has been arrested, of his or her right to contact the embassy for assistance. In... enforceable by the defendant for the failure to advise with a motion to suppress any subsequent statement. The court... of the arresting officer's error in failing to tell the defendant of the right to contact the consulate, must be set aside... require suppression of evidence, they appear motivated to some extent by reluctance to create a new “suppression of evidence” remedy... This is a familiar prejudice test, analogous to that required in the context of a... of the Vienna Convention, and that failure to notify of the petitioner of the right to consular assistance constituted an Article 36 violation. [3] The court went on to hold that counsel’s failure to raise the violation was deficient performance. [4]... been informed of his or her right to contact the consulate, the Consul would have... been retained who would have known how to prevent the adverse immigration consequences from occurring.... courts require claims under the Vienna Convention to be brought in a habeas corpus petition,... 2 . [6] The State Department advisory to all law enforcement on the arrest of... at: http://www.state.gov/www/global/legal_affairs/ca_notifications/ . The State Department site includes a 60+ page manual designed for... what the treaty means: http://www.state.gov/www/about_state/ca_prelim.html . To get a copy of the treaty itself:
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