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Criminal Defense of Immigrants § 15.23:
OVERVIEW " PROSECUTORIAL DISCRETION
Immigration Policy Center of the American Immigration Council, Understanding Prosecutorial Discretion in Immigration Law (IPC Fact Check, May, 2011) http://www.immigrationpolicy.org/sites/default/files/docs/Prosecutorial_Discretion_QA.pdf
Tooby's California Post-Conviction Relief for Immigrants § 7.7 ; Post-Conviction Relief for Immigrants § 6.8:
POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CRITICAL STAGES OF THE PROCEEDING
The right to effective assistance of counsel applies at every critical stage of the prosecution, including guilty pleas, not merely at trial. Mempa v. Rhay, 389 U.S. 128, 134 (1967); White v. Maryland, 373 U.S. 59, 60 (1963). A guilty plea . . . is an event of signal significance in a criminal proceeding. By entering a guilty plea, a defendant waives constitutional rights that inhere in a criminal trial, including the right to trial by jury, the protection against self-incrimination, and the right to confront ones accusers. While a guilty plea may be tactically advantageous for the defendant, the plea is not simply a strategic choice; it is itself a conviction, and the high stakes for the defendant require the utmost solicitude. Florida v. Nixon, 543 U.S. 175, 187 (2004) (citations omitted) (emphasis added). The Supreme Court has held that the Sixth Amendment guarantees effective assistance of counsel at sentence. Mempa v. Rhay, 389 U.S. 128, 137 (1967); see Glover v. United States, 531 U.S. 198, 203-204 (2001)(non-capital sentencing).
Aggravated Felonies § 6.12 ; Criminal Defense of Immigrants § 11.18 ; Crimes of Moral Turpitude § 10.11 ; Post-Conviction Relief for Immigrants § 8.3:
PRACTICE ADVISORY " POST CON RELIEF " TEXAS " GROUNDS " INVALID PLEA " INEFFECTIVE ASSITANCE OF COUNSEL "CONVICTION " DEFERRED ADJUDICATION
Texas law conflicts with federal immigration law as to whether deferred adjudication constitutes a conviction. Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998) (Deferred adjudication is not a conviction.). But see Matter of Punu, 22 I. & N. Dec. 224, 230 (B.I.A. 1998) (holding that deferred adjudication in Texas constitutes a conviction for purposes of immigration law). This may give Texas defendants a ground of legal invalidity by which to set aside their convictions, if they were incorrectly informed the Deferred Adjudication disposition does not constitute a conviction, whereas it does constitute a conviction under federal immigration law. This may render the plea not knowing, intelligent, free or voluntary. It may also constitute a ground of ineffective assistance of counsel, in violation of Padilla v. Kentucky, because of affirmative misadvice or failure to advise that this disposition does indeed constitute a conviction for immigration purposes.
Criminal Defense of Immigrants § 20.6 ; Crimes of Moral Turpitude § 8.6, § 9.79:
PRACTICE ADVISORY " MISUSE OF SOCIAL SECURITY NUMBER UNDER 42 U.S.C. 408(a)(7)(B)
The offense of misuse of a social security number, in violation of 42 U.S.C. 408(a)(7)(B), may or may not be considered a crime of moral turpitude. For example, use of the card to open a checking account would not appear to be fraudulent, and thus not a CMT. The statute should therefore be considered divisible. Sale of fraudulent immigration documents is clearly CMT. Matter of Flores, 17 I. & N. Dec. 225, 1980 WL 121870 (BIA 1980). Use or possession of a false social security document with specific intent to defraud is a CMT. Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992). Knowing possession of false immigration documents, however, is not a CMT. Matter of Serna, 20 I. & N. Dec. 579, 581 (BIA 1992). See Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992) which is (erroneously) argued by the Service to have ruled that 408(a)(7)(B) is a CIMT, and the Ninth Circuits decision in Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000), that found it is not. See Wheeler, The Immigration Consequences of Using A False Social Security Number, 8 Bender's Imm. Bull. 952 (June 1, 2003).
Post-Conviction Relief for Immigrants § 6.51 ; Criminal Defense of Immigrants Appendix 13:
ARTICLE " POST CON RELIEF " FEDERAL PREEMPTION " STATE FORGERY AND PERJURY PROSECUTIONS CANNOT BE BASED ON EVIDENCE OF FALSE STATEMENTS ON FEDERAL I-9 EMPLOYMENT ELIGIBILITY FORMS
Federal immigration law provides penalties for false statements on federal employment eligibility form I-9. Federal law pre-empts state law on this issue. See State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011) (Immigration Reform and Control Act, INA 274A, 8 U.S.C. 1324a (2006), preempts state prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification). Therefore, evidence of false statements on I-9 forms cannot be used in state criminal cases to prosecute defendants for forgery or perjury, because federal statutes pre-empt state legislation on this point. For example, in State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011), the Minnesota Court of Appeals held that 8 U.S.C. 1324a (2006) preempts state criminal prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification. The court reasoned: Whether federal law preempts state prosecution is a question of law subject to de novo review. See Thul v. State, 657 N.W.2d 611, 618 (Minn. App. 2003), review denied (Minn. May 28, 2003). . . . The I-9 form was developed by the United States Attorney General in compliance with IRCA. See 8 U.S.C. 1324a(b)(1)(A) (requiring attestation by employer of eligibility verification on a form designated or established by the Attorney General by regulation); 8 C.F.R. 274a.2(a) (2005) (noting I-9s designation as the form to be used in employment-eligibility verification system). The I-9 form is entitled Employment Eligibility Verification. On it, Reynua provided the name of Laura Romero, along with a social security number and an address, and submitted in support the Minnesota identification card in Romeros name and a social security card, also in Romeros name. On the form, she checked the box indicating that she is a citizen of the United States. IRCA provides that [a] form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of title 18. 8 U.S.C. 1324a(b)(5). The state concedes that this provision of IRCA is broad enough to prohibit even use of the I-9 form in a state prosecution for perjury. We agree, given the congressional intent that is evident in this and other provisions in IRCA to preempt the area of employment-related verification of immigration status. IRCA provides that the employment-eligibility verification system may not be used for law enforcement purposes, other than for enforcement of this chapter or the federal perjury and false-statement provisions also referenced in section 1324a(b)(5). 8 U.S.C. 1324a(d)(2)(F). There is also an express provision preempting state laws imposing sanctions upon those who employ, or recruit or refer unauthorized aliens. 8 U.S.C. 1324a(h)(2). This provision clearly does not apply to the prosecution of an applicant for employment, such as Reynua. But it is further evidence of a general congressional intent to preempt state legislation in the area. The United States Supreme Court recently addressed the preemptive effect of IRCA, holding that the law did not preempt Arizonas unauthorized-alien employment law. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1973 (2011). In dissent, Justice Sotomayor stated that [u]se of the I-9 form is thus limited to federal proceedings, as the majority acknowledges. Id. at 2001. In its opinion, the majority rejected the argument that the Arizona law required an employer to use the I-9 form in order to later claim an affirmative defense. Id. at 1982 n.9. Thus, the majority considered the preemptive effect of section 1324a(b)(5) with respect to sanctions on employers for employing illegal aliens. The Supreme Court in Whiting was addressing the express preemption of state laws sanctioning employers, and, specifically, the exemption within that preemption provision allowing for state licensing laws. See id. at 1977-78. The Whiting Court was not dealing with federal immigration provisions directed at unauthorized aliens, or employment applicants, but rather an express reservation to the states of licensing provisions directed at employers. See id. at 1987. The Courts opinion does not hold that IRCA lacks a general preemptive intent, and specifically notes the ways in which the state statute at issue conformed to federal law. See id. Thus, there is nothing in the Whiting opinion inconsistent with our conclusion that use of the I-9 form in a state perjury prosecution is preempted by IRCA. A state law is preempted if the state law obstructs the accomplishment of the full purposes and objectives of the federal legislation. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S. Ct. 615, 621 (1984). IRCA largely targets employers for the sanctions it imposes. Only the federal perjury and false-statement provisions referenced in section 1324a(b)(5) are aimed at the employee. See United States v. Arizona, 641 F.3d 339, 358 (9th Cir. 2011). But those federal statutes would be enforced by federal authorities, not local prosecutors in 50 different states. And, as the Ninth Circuit noted in United States v. Arizona, the federal act evidences Congress intent that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General. Id. at 352. The enforcement of Minnesotas perjury statute is not subject to that direction and supervision. Moreover, state perjury prosecutions could shift the illegal-immigration enforcement focus from the employer to the employee. Thus, a Minnesota perjury prosecution for false statements on the I-9 form would tend to obstruct the full purposes and objectives of IRCA. The same analysis does not apply to the simple-forgery charge based on the use of the Minnesota identification card. Here, we follow the general principle that [w]hen federal laws do preempt conflicting state laws, the state laws are preempted only to the extent that they are in conflict with federal law. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 11 (Minn. 2002). IRCA bars use of the I-9 form and any information contained in or appended to such form for purposes other than enforcement of the federal immigration statute and the federal perjury and false-statement provisions. 8 U.S.C. 1324a(b)(5). But we cannot read this provision so broadly as to preempt a state from enforcing its laws relating to its own identification documents. We conclude that the state, for example, is not barred from prosecuting the crime of display or possession of a fictitious or fraudulently altered Minnesota identification card, Minn. Stat. 171.22, subd. 1(2), merely because that card has been presented in support of an I-9 federal employment-eligibility verification form. There is a general presumption that the historic police powers of the State are not superseded by federal legislation unless that was the clear and manifest purpose of Congress. Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quotation omitted). Section 1324a(b)(5) prohibits non-federal use of information appended to the I-9 form. That language does not exhibit a clear and manifest purpose to bar enforcement of state laws pertaining to state identification cards. It would be a significant limitation on state powers to preempt prosecution of state laws prohibiting falsification of state issued identification cards, let alone to prohibit all use of such cards merely because they are also used to support the federal employment-verification application. See generally Minn. Stat. 609.63, subd. 1(1) (prohibiting use of false writing for identification), .652, subd. 2 (prohibiting various acts in creating false identification cards for profit) (2010). (Id. at ___.) The same reasoning " based on nationwide federal law " would also require the same result in California criminal cases.
Aggravated Felonies § 3.6 ; Criminal Defense of Immigrants § 3.19 ; Safe Havens § 4.7:
AMERICAN INDIANS
American Indians born in Canada who declare an intention to live or work in the United States must be granted the freedom to do so under the Jay Treaty. They must go through a registration process. The U.S. Embassy in Ottawa provides the following information: Subsection 289.3 of the Combined Federal Regulations (8 CFR PART 289) provides guidance requiring that any Canadian-born American Indian who declares an intention to move to the U.S. and reside or work, that upon initial entry at a land-border Port of Entry, they must declare the intention to live and/or work in the U.S., provide CBP with documentation proving American Indian status, and complete an Application to Register Permanent Residence or Adjust Status (Form I-485). (http://canada.usembassy.gov/visas/information-for-canadians/first-nations-and-native-americans.html). Immigration regulations require that the person prove 50% American Indian blood quantum to qualify for a green card. Not everyone who has a tribal card can show the requisite blood quantum. Filing an I-485 begins the process in which a Canadian-born American Indian is afforded lawful permanent residence. This process is not an application for status, but is the initial action required to convey the appropriate status authorized under the Jay Treaty. An excerpt from the Inspector's Field Manual on the process at the border states: 11.3 American Indians Born in Canada. An American Indian born in Canada, with 50% American Indian blood, cannot be denied admission to the United States. The applicant bears the burden of proof in establishing eligibility. Usually, this is accomplished by presenting identification such as a tribal certification that is based on reliable tribal records, birth certificates, and other documents establishing the requisite percentage of Indian blood. The Canadian Certificate of Indian Status (Form IA-1395) issued by the Canadian Department of Indian Affairs in Ottawa specifies the tribal affiliation but does not indicate percentage of Indian blood. Membership in an Indian tribe in Canada does not necessarily require Indian blood. Once the claim to 50% Indian blood has been established, the applicant can freely enter the U.S., regardless of the purpose or duration of the trip, even if technically excludable or previously deported. If such person is entering to reside permanently in the U.S., Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence, must be executed. The words "Canadian-born American Indian admitted for permanent residence" must be endorsed on the I-181. Under the box marked "Other Law" indicate section 289 of INA. Complete Form I-89, Data Collection Card, including fingerprint , proper photograph, and other required data. The admission classification is S13. An "A" file may be created at the port-of-entry and forwarded to the district office for data entry into Central Index or the I-181 and I-89 may be forwarded directly to the Immigration Card Facility for creation of the file and card production. Issue a temporary I-551 using Form I-94 See USCIS's instructions from the AFM. http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-8624/0-0-0-10065.html#0-0-0-439 A Canadian-born American Indian cannot be denied LPR status, but is required to complete the I-485 in order to receive any benefits under U.S. federal law. Recipients are entitled to all rights and privileges accorded legal immigrants to the United States, including if they desire, eventual naturalization as American citizens and the right to sponsor immediate family members into the United States. Thanks to Mark R. Barr.
Aggravated Felonies § 2.44 ; Criminal Defense of Immigrants § 24.28 ; Crimes of Moral Turpitude § 3.43:
RELIEF " INA 212(c) WAIVER " COMPARABLE GROUNDS
Immigrant Defense Project, the National Immigration Project of the National Lawyers Guild, and the American Immigration Councils Legal Action Center, Practice Advisory, Implications of Judulang v. Holder for LPRs Seeking 212(c) Relief and for Other Individuals Challenging Arbitrary Agency Policies http://www.legalactioncenter.org/sites/default/files/Judulang-212-c-relief.pdf
Criminal Defense of Immigrants § 3.42 ; Safe Havens § 5.20:
FINDING IMMIGRATION COUNSEL
The Immigration Advocates Network (IAN) is excited to announce the launch of ImmigrationLawHelp.org (www.immigrationlawhelp.org), a new website to help low-income immigrants find free or low-cost legal help. The website provides information about more than 900 nonprofit immigration legal services providers in all 50 states. Using data from IAN's recently launched National Immigration Legal Services Directory http://www.immigrationadvocates.org/nonprofit/legaldirectory), ImmigrationLawHelp.org was designed to address the lack of reliable information available to low-income immigrants by providing an easy-to-use online directory of legal services providers. In addition to the ability to search for nonprofit legal services by state, county, and detention facility, the website allows users to find organizations by languages spoken, types of legal and other services provided, and specific areas of legal assistance. It is available in English and Spanish.
Post-Conviction Relief for Immigrants § 4.11:
POST CON RELIEF " NUNC PRO TUNC ORDERS
The notion of court orders nunc pro tunc is a very vague equitable doctrine. Even if counsel obtains a nunc pro tunc order in criminal court, there is no guarantee at all the immigration court will reach the criminal courts conclusion that the order or plea was entered on the backdated date c.f. United States v. Esparza, 678 F.3d 389, (5th Cir. Apr. 20, 2012) (record evidence is sufficient to justify the trial judge's conclusion that Esparza was an alien at the time of his reentry, and the nunc pro tunc divorce decree obtained in 2010 purporting to retroactively rearrange Esparza's custody status in 1994 does not raise a reasonable doubt as to his alienage). The immigration courts generally follow federal immigration law on these questions, rather than the vagaries of the law of the 50 states, because of a desire for national uniformity. On the other hand, it is possible for immigration counsel to argue that the immigration courts are bound to honor the final judgment of a state court under the Full Faith and Credit doctrine. Because of this question, however, counsel should ask whether they really need an order to be entered nunc pro tunc. If there is no strong immigration need to backdate the order or plea, perhaps it is better not to ask that the state court act nunc pro tunc. If it is really necessary to backdate an order or plea, the best argument might be that the law requires that the state and immigration courts place the defendant back in the same position he or she would have occupied if the error had not been made, i.e., with the opportunity to enter the same plea he or she would have had if the ineffective assistance of counsel or the courts error in giving the mandatory immigration advice had not been made. The United States Supreme Court recently referred to this obligation in Lafler v. Cooper, 556 U.S. ___, 132 S. Ct.1376 (Mar. 21, 2012). In that case, the court addressed the question of prejudice where defense counsel rendered ineffective assistance of counsel during plea bargaining, where in rejecting an offer of a 51-to-85-month sentence, defense counsel misadvised the defendant that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist, and he went to trial, was convicted on all counts, and received a mandatory minimum 185-to-360-month sentence. The court addressed the general question of the appropriate remedy where ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence: Sixth Amendment remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. United States v. Morrison, 449 U. S. 361, 364 (1981). Thus, a remedy must neutralize the taint of a constitutional violation, id., at 365 . . . . (Id. at 1388.) This argument might also be used in the context of a California Penal Code 1016.5 error, where justice also requires the court to place the defendant in the same position he or she would have occupied absent the error. The federal courts of appeals, including the Ninth Circuit, have also held in the immigration ineffective assistance of counsel context, that the remedy must place the client in the same position he or she would have occupied, as far as the timing of relief is concerned, that they would have faced if counsel had not made the error. One case involved the one-year deadline for filing a political asylum claim, and held that even though the court finding of ineffective assistance of counsel was made many years later, when the deadline had long since passed, the court ordered the immigration authorities to accept the political asylum claim as though it had been timely filed within the one-year statute of limitations. The BIA has issued nunc pro tunc remedies in cases going back for more than 50 years ... [to] achieve equitable results serving the interests of the agency and the individual alike. In re Lei, 22 I. & N. Dec. 113, 132 (BIA 1998). Federal courts also rel[y] on the doctrine, in order to return aliens to the position in which they would have been, but for a significant error in their immigration proceedings. Edwards v. I.N.S., 393 F.3d 299, 308"09 (2d Cir.2004). When agency error would otherwise be irremediable, and where the plaintiff has been deprived of a significant benefit such as the opportunity to seek a particular form of deportation relief, courts apply the doctrine in immigration cases so the error [can] be remedied nunc pro tunc. Id. at 310"311; see also Batanic v. I.N.S., 12 F.3d 662, 667 (7th Cir.1993) (granting a noncitizen asylum nunc pro tunc, when procedural defects in his removal proceeding coupled with an intervening statutory change made him otherwise ineligible for asylum); De Cardenas v. Reno, 278 F.Supp.2d 284, 294 (D.Conn.2003) (remanding a case to the BIA with directions to enter relief from deportation nunc pro tunc, given administrative oversights and procedural defects [had] deprived [petitioner] of an important opportunity to make her case for section 212(c) relief).
Aggravated Felonies § 2.37 ; Criminal Defense of Immigrants § 24.25 ; Crimes of Moral Turpitude § 3.36:
DEFERRED ACTION " DREAM ACT " PRACTICE ADVISORY
American Immigration Council, Legal Action Center and National Immigration Project of the National Lawyers Guild, Practice Advisory, Deferred Action For Childhood Arrivals (Aug. 20, 2012), http://www.legalactioncenter.org/sites/default/files/practice_advisory_dreamers_8-13-12_fin_0.pdf The Legal Action Center (LAC) released an updated version of the Practice Advisory, Deferred Action for Childhood Arrivals, which includes links to the application forms and updated information about the application process This Practice Advisory analyzes DHS guidance regarding the eligibility criteria and application process for the Obama administrations initiative to grant deferred action to certain individuals who came to the United States as children. It also offers strategic advice for attorneys representing individuals who may qualify for deferred action for childhood arrivals. The LAC issued this advisory jointly with the American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild.
Aggravated Felonies § 2.28 ; Criminal Defense of Immigrants § 24.17 ; Crimes of Moral Turpitude § 3.27:
RELIEF " VISAS " U VISAS " STATISTICS
U.S. Citizenship and Immigration Services announced in late August 2012 that it had approved 10,000 U visas, the annual statutory maximum. The U visa is for victims of certain crimes who are helpful with law enforcement investigations or prosecutions. An approved visa allows the person to remain in the U.S., get a work permit, and eventually apply for legal residency. 10,000 U visas were issued throughout this fiscal year, which ends on September 30, 2012. The Vermont Service Center reports that it is currently "preprocessing" U applications, and plans to send out approvals and work authorization to those pre-approved, after the first of October. - Guidance from ASISTA on how to proceed now that USCIS has reached the 10,000 cap on principal U visas for this fiscal year, which also addresses derivatives and requests for Deferred Action for Childhood Arrivals (DACA), at http://www.immigrationadvocates.org/link.cfm?20120. - A practice advisory from ASISTA on the intersection of Deferred Action for Childhood Arrivals (DACA) and U visa derivatives at http://www.immigrationadvocates.org/link.cfm?20121. - A practice advisory from the Immigrant Legal Resource Center on the U nonimmigrant status eligibility requirements for children and youth at http://www.immigrationadvocates.org/link.cfm?20122. Podcast: - Gail Pendleton of ASISTA discusses how to work with Local Enforcement Agencies on U Visa Certifications at http://www.immigrationadvocates.org/link.cfm?19421. Other Resources: ASISTA ASISTA provides a resource page on U Visas that includes tips for filing, regulations, checklists for clients, case law, guidance for different procedural postures, and more at http://www.asistahelp.org/index.cfm?nodeID=23546&audienceID=1. Catholic Legal Immigration Network The Catholic Legal Immigration Network, Inc. (CLINIC) offers a Spanish U visa fact sheet for clients at http://cliniclegal.org/sites/default/files/UVisa%20Flier%20Sp.pdf. Legal Momentum Legal Momentum has a resource page on U visa training materials and tools at http://iwp.legalmomentum.org/immigration/u-visa/tools. U.S. Citizenship and Immigration Services The U.S. Citizenship and Immigration Services (USCIS) provides a webpage with information on U visas, including basic requirements, questions and answers, and links to other resources at http://1.usa.gov/aqBYoi.
Criminal Defense of Immigrants § 15.26:
REMOVAL PROCEEDINGS " EVIDENCE " FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
A person in removal proceedings is entitled to assert his/her right against self-incrimination under the Fifth Amendment due to any potential criminal charges arising from any admission of alienage, entry without inspection, or other factual matters alleged in the Notice to Appear. Matter of Sandoval, 17 I&N Dec. 70, 72, n.1 (BIA 1979). Has your client carried his LPR card with him each and every moment since he became an LPR? If not, an admission to alienage on the stand would establish an essential element of an offense under 8 U.S.C. 304. Has he always filed a change of address within 10 days of moving? If not, admission of alienage under oath would establish an essential element of an offense under 8 U.S.C. 305. These are criminal offenses under the penalty provisions of 8 U.S.C. 306. If an answer to the question might provide a link in the chain of evidence necessary to convict the client of a criminal offense under any of the following statutes, the claim of privilege should be sustained: INA 266(a) and (b) " willful failure to register or provide change of address INA 275 " improper entry INA 276(a) " entering, attempting to enter, or being found in the US after removal IJ or DHS cannot offer immunity " only the Attorney General can in writing. Thanks to Bruce D. Nestor.
Criminal Defense of Immigrants § 3.24:
BIBLIOGRAPHY " (NON-IMMIGRATION) COLLATERAL CONSEQUENCES WEBSITE
The ABA has created a website that lists collateral consequences of criminal convictions (other than immigration consequences) that exist under laws of Vermont, Minnesota, Iowa, Nevada, Texas, Wisconsin, South Carolina, New York, and federal crimes. The ABA will add consequences from other state jurisdictions. This valuable resource addresses how a conviction will impact housing, government benefits, civic participation, and a whole range of other areas. Holistic legal practitioners and criminal defense practitioners who want to follow best practices will be sure to bookmark this site. http://www.abacollateralconsequences.org/CollateralConsequences/map.jsp
Tooby's California Post-Conviction Relief for Immigrants § 12.5:
CAL POST CON " CORRECTING STATE CRIMINAL HISTORY
Penal Code 11126(c) (provides for a hearing after denial of a request to correct California criminal history; no specific requirement on how fast the Department of Justice must investigate the claim in Sections (a) and (b)). http://oag.ca.gov/sites/all/files/pdfs/fingerprints/forms/BCIA_8705.pdf
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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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