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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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Crimes of Moral Turpitude: §9.105
Rape Statutory rape has generally been held to be a crime of moral turpitude. ... act. ‘Statutory rape’ is also deemed to involve moral turpitude.’” [1] In Quintero-Salazar... (4) the statute was passed in order to address teenage pregnancy, not to avoid a moral issue; and (5) the... the ages of 14 and 16 held to involve moral turpitude) ; Marciano v. INS... so a defense of reasonable mistake as to age is unavailable); Pino v. Nicolls ,... a child of 15 years held equivalent to rape, and so involves moral turpitude); Rico... under 16 by male over 18, contrary to Wisconsin Statutes § 944.10(2) , held CMT);... Wisconsin conviction of carnal knowledge held equivalent to statutory rape) ; Matter of R ,
Post-Conviction Relief for Immigrants: §5.64
as a result of nonstatutory constitutional motions to vacate, ceases to exist for immigration purposes. A state court order to this effect must be accorded full faith and credit because this type of motion is not... in the constitutional sense, by the failure to issue the statutory deportation warning, which constitutes... Roldan , held that a conviction ceases to exist “where the . . . vacation... warranted . . . on grounds relating to a violation of a fundamental . .
Criminal Defense of Immigrants: §15.10
On March 1, 2003, the INS ceased to exist as an administrative entity. [1] ... Although administrative, deportation proceedings are not subject to the Administrative Procedures Act. [2] Immigration... than criminal , and therefore not subject to constitutionally protected rights of criminal defendants. [3]... (precedential or not) may be appealed directly to the federal circuit court with jurisdiction over... (“IJ”). [1] Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002). [2] See,... notice and comment, redetermine detention boundaries, even to the extent that noncitizens arrested in one federal circuit may be subject to the law of a separate circuit); Ardestani... ( ex post facto protections not applicable to deportation). [4] 8 C.F.R. § 1003.1(g).
Post-Conviction Relief for Immigrants: §6.21
different agency. But the court refused to impose a categorical bar on claims of... not required, by the due process clause, to advise the defendant on that subject at... consequences doctrine “originated as a policy-based adjunct to the due process requirement that a court... accepts are voluntarily given,” while “the right to competent representation in the guilty plea context... all ‘defendants facing felony charges are entitled to the effective assistance of competent counsel .’” [2] While the right to the effective assistance of counsel is subsumed... process of law, the court found: no logical or jurisprudential reason why we should truncate our examination of counsel’s Sixth Amendment responsibilities to noncitizen clients by invoking a categorical concept... assessed under the Sixth Amendment, which looks to the facts of each case to determine “whether counsel’s assistance was reasonable considering... had never applied the “collateral consequences” doctrine to limit claims of ineffective assistance of counsel:... consequences doctrine the Attorney General urges us to adopt in this case. In fact,... be informed” in order for the plea to be considered voluntary ( Hill , supra... among the alternative courses of action open to the defendant’” ( id. at p. 56).... giving of erroneous immigration advice ought categorically to be barred. Rather, recognizing the tremendous... of banishment or exile, we do well to eschew technicalities and fictions and to deal instead with realities.” ( Costello... for certain due process purposes be collateral to petitioner’s conviction should not preclude application of the ordinary Strickland standards to his ineffective assistance claim based on alleged... of California has been bound since 1987 to follow Soriano without any particular flood of
Criminal Defense of Immigrants: §3.21
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. Often, a... wrongly that s/he now has a green card. If a person has a green card, s/he may use shorthand and describe him-... the letter A) which is the key to finding his or her immigration record when... see Appendix A, infra , is necessary to determine a person’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. Note: Often... by the border patrol and being persuaded to sign a waiver form and accept a... 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... than 180 days is generally not subject to the rules of admissibility upon returning, but one exception to this rule (of many) occurs when s/he... If an LPR is unable to avoid a conviction that triggers deportation, inadmissibility,... 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, [5] or INA 212(h) [6] 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.” [7] ... 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... granted political asylum [10] have been admitted to the United States or allowed to remain in the United States because of... been granted LPR status, but 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 [12] and... 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), [13] and thereby... [14] If s/he cannot adjust status to LPR, the next goal is to preserve eligibility for the relief of withholding... serious crime.” [16] 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. (2) Even... United States , the client may wish to obtain various immigration benefits such as voluntary... See §§ 3.31-3.33, infra , on how to verify the client’s immigration situation. [2] But... also § 24.30. [8] 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
Criminal Defense of Immigrants: §2.34
that require the court taking a plea to inform every defendant of the possible immigration consequences. The intent of these provisions is to protect noncitizens from entering guilty pleas in... a citizen of the United States , to the potential adverse immigration consequences of a plea. The Legislative intent is generally to allow the defendant to investigate actual immigration consequences, with the assistance of counsel, and then to renegotiate the case with the prosecution in light of those consequences to avoid them if possible. [2] They also of necessity alert criminal counsel to this danger, and do so in every... the time of plea. Once alerted to this danger, defense counsel must act to investigate these consequences, the actual consequences, not... so the defense can take appropriate action to avoid them if possible. Since this danger is brought to light in every single guilty plea, we... disaster. This triggers the ethical duty to assist the client to learn the actual level of risk posed... the immigration consequences, and formulate a strategy to minimize those consequences to the extent the client wants to do so. [1] Cal. Penal Code §
Criminal Defense of Immigrants: §2.5
not be released until they are deported to their country of citizenship. They may quickly be driven in a government van down to one of the huge immigration camps on... under contract with the DHS and subjected to deportation proceedings locally. Because the... not “criminal” – in nature, there is no right to court-appointed counsel to defend them against deportation. Half of the persons in deportation proceedings have no means to hire an attorney to defend them. The immigration judges are often affirmatively working to deport them, telling them God knows what off the record, and then going on the record to record their agreement to accept deportation, even if – without knowing... some defense against deportability or some claim to discretionary relief from deportation. Even... trigger deportation, or that they are eligible to apply for relief from deportation, they may not be able to endure remaining in custody until the immigration... detention, even if the immigration judge agrees to release them, until the conclusion six or eight months later of a government appeal to the Board of Immigration appeals challenging the... criminal custody on O.R. or bail, prior to conviction, but an immigration hold surfaces before... client moves into deportation proceedings as if no criminal proceedings were still pending against them.... anyway, unless we work with immigration counsel to obtain the client’s return in custody to the criminal court to face the music there, still subject to an immigration hold. Of course, any... dead time, for which the client receives no credit against a future sentence, since the custody... client – miraculously – is not subject to mandatory immigration detention, then a bond must... at a cost of thousands of dollars, to try to defend them against deportation, or to try to obtain compassionate relief from deportation if they are eligible to apply for that relief.
Aggravated Felonies: §2.11
of bond. Immigration detention is analogous to criminal detention. The person detained may... criminal bond, unless the noncitizen is subject to mandatory detention. An aggravated felony conviction... 1998. A noncitizen may be able to work with criminal defense and immigration counsel to avoid a conviction that would trigger mandatory detention. Criminal lawyers should attempt in criminal court to obtain criminal dispositions that do not trigger... number of inadmissible and deportable noncitizens subject to mandatory immigration detention prior to a final order of removal. The... inadmissible or deportable under certain grounds related to crimes. [1] The Attorney General must... release, a noncitizen inadmissible under grounds relating to moral turpitude, drug conviction, drug trafficking, prostitution,... years of last entry if a sentence to one year or more imprisonment was imposed,... Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005). In addition, a considerable... Offense, Youthful Offender or Political Offense Exceptions to inadmissibility. (4) Conviction of a single... not trigger mandatory detention for noncitizens subject to deportation where (a) the crime was not... list substantive offenses, and attempt and conspiracy to commit them, but no other classes of inchoate offenses. See... a basis of legal validity, will work to avoid mandatory detention for most, if not... Deportation, granted by the sentencing judge prior to November 29, 1990, also avoid mandatory detention... applies, the immigration court is not permitted to release the immigrant on bond, unless, as... appeals that decision, the immigrant is subject to mandatory detention until the Board of Immigration... deportability and did not request a hearing to determine whether he was subject to mandatory detention. The Supreme Court thereby overturned a number of decisions to the contrary. [12] The Demore decision... valid and that he was “therefore subject to mandatory detention under § 1226(c) . .... the plurality of four justices was insufficient to hold the mandatory detention statute constitutional, Justice... held that “due process requires individualized procedures to ensure there is at least some merit to the Immigration and Naturalization Service’s (INS) charge [of removability] and, therefore, sufficient justification to detain a lawful permanent resident pending a... proceedings turns solely upon the alien’s ability to satisfy the normal bond procedures — namely,... a risk of flight or a danger to the community.” [14] If a... a mandatory detention category, s/he remains entitled to a bond hearing and to release on reasonable bond [15] unless s/he is shown to be a flight risk or danger to the community. As both the plurality and concurring opinions note, the noncitizen was entitled to a hearing in which he could have “raised[d] any nonfrivolous argument available to demonstrate that he was not properly included... noncitizen would also have had a right to a bond hearing “if the continued detention... Demore v. Kim , has found that no due process claim exists where the noncitizen... the basis for contesting the claim has no merit. [20] Another court has found a period of two years and eight months too long to detain a noncitizen pending expedited removal. [21]... (N.D.Ill. Apr. 28, 2003) (Attorney General authorization to set conditions of release under INA § 241(a)(3), 8 U.S.C. § 1231(a)(3) includes authorization to set bond as a condition of release... contesting removal was based on claim contrary to binding case precedent). [21] Tijani v. Willis... (two years and four months detention pursuant to INA § 236(c), 8 U.S.C. § 1226(c)... § 1003.19(i) and expanding the DHS authority to obtain an automatic stay of the immigration... by filing a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) within one... BIA decision. If the DHS fails to file an appeal within 10 days of... Commissioner can certify the Board’s custody order to the AG, and then release is further... 8 C.F.R. § 1003.19(i)(2) is ultra vires to the statute, and facially violates substantive and... § 1003.19(i)(2) violates Fifth Amendment substantive right to bail and due process by allowing government to maintain custody without showing likelihood of success on appeal or harm to government), distinguishing Demore v. Kim , 538... is released” from criminal custody without regard to whether s/he is released on parole, supervised release, or probation, and without regard to whether s/he may be arrested or imprisoned again for the same offense. Prior to IIRAIRA, Congress passed AEDPA, which included similar detention provisions requiring the Attorney General to take into custody certain individuals convicted of... did not intend the mandatory detention provision to apply to persons released from incarceration before the AEDPA... IIRAIRA, [3] s/he should not be subject to mandatory detention. The Board of Immigration... the Transition Period Custody Rules is subject to mandatory detention pursuant to INA § 236(c), even if the noncitizen... (July 22, 1996); Montero v. Cobb , No. 96-1141C-WGY (D. Mass. 1996); Grodzki v. Reno , No. 96-cv-2303-ODE (N.D.Ga. Sept. 20, 1996); Lopez-Tellez v. INS , No. 96-1432-BTM (CGA) (S.D.Cal. Sept. 26, 1996). [2]... under 28 U.S.C. § 2241, ordering USICE to release returning LPR with CMT conviction; INA... 236(c)(1), 8 U.S.C. § 1226(c)(1) applies only to aliens who are being released from incarceration... Congress intended that § 236(c) apply retroactively to aliens released from incarceration on criminal convictions... 236(c), 8 U.S.C. § 1226(c) applies only to noncitizens taken into immigration custody immediately after... (D) INS Policy Change: Review Available to Persons Released from Incarceration before October 9,... from state or federal criminal custody prior to October 9, 1998, [1] the expiration date... under which the Attorney General had discretion to release from INS custody persons subject to mandatory removal. This policy gives district directors discretion to release persons who are not considered a flight risk, and who are determined not to be a danger to the community. This will apply only to persons who were released from criminal custody... automatic release, but do have the right to have a hearing on whether they are a flight risk or danger to the community. The INS estimated that... This policy was apparently the response to losing at least 13 court cases challenging... § 235(b)(1)(A), but who are later transferred to the immigration courts for removal proceedings following... 1003.19(h)(2)(i) (e.g., arriving aliens, or those subject to mandatory detention). [1] [1] Matter of... authorities actually will make it a priority to detain [1] setting out four categories, in... neglect of children. The INS must continue to detain those who were taken into INS... not pose a flight risk or danger to the community. The memorandum states that persons in exclusion proceedings are not subject to mandatory detention, except for those convicted of... detainee 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). Citizens 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 persecution. The INS is not required to detain people already released from criminal custody,... and begins removal proceedings they are subject to detention. [1] The memorandum is reprinted... Removal. The Attorney General is required to detain noncitizens subject to a final order of removal during the... order becomes administratively final, or, if appealed to federal court, on the date the court... s/he will be taken into custody pursuant to the warrant of removal. [4] Any... period, the statute provides for release subject to an order of supervision. [8] However, the regulations shift the burden to the noncitizen to establish eligibility for an order of supervision. They provide that the Attorney General may continue to detain immigrants beyond the 90-day removal period unless they demonstrate to the district director’s satisfaction that they are likely to comply with the removal order and are not a risk to the community. [9] In Zadvydas... Court found insufficient evidence of congressional intent to authorize indefinite detention of noncitizens subject to a final order of removal where there is no repatriation agreement with their home country. ... future. Federal courts have habeas power to order release on conditions after a reasonable... only with noncitizens that had been admitted to the United States and subsequently ordered removed,... Supreme Court has recently extended this holding to noncitizens subject to removal from the United States following exclusion... their release would not pose a danger to the community or a significant flight risk.... the Attorney General a full 90 days to effect an alien’s removal after the alien... 241(a) of the Act, and it imposes no duty on the Attorney General to act as quickly as possible, or with... period. This reading of the Act raises no constitutional infirmity. It is permissible for the Attorney General to take more than the 90-day removal period to remove an alien even when it would be within the Attorney General’s power to effect the removal within 90 days. The... when the delay in removal is related to effectuating the immigration laws and the nation’s... things, delays in removal that are attributable to investigating whether and to what extent an alien has terrorist connections... reason for any delay or for refusing to release the noncitizen. [18] There may... of removal who ordinarily would be subject to mandatory and indefinite detention. The INS... noncitizen’s removal, the noncitizen is not subject to mandatory detention and could be released from... been granted withholding or deferral of removal to a specific country come within this category, unless the DHS is actively pursuing their removal to some third country. The agency decision whether to release such a person must take into... including whether the alien poses a threat to the community or flight risk.” [19] [1]... provides that these aliens “shall be subject to supervision under regulations prescribed by the Attorney... under IIRAIRA § 309 do not apply to noncitizens placed into proceedings prior to April 1, 1997. Seirra v. Romaine... § 241(a)(6), 8 U.S.C. § 1231(a)(6) applies to inadmissible noncitizens ordered excluded prior to April 1, 1997). [13] Clark v. Martinez... Sept. 2, 2003) (removable noncitizen who refuses to cooperate fully in securing travel documents from foreign government cannot meet burden of showing no significant likelihood of removal in the foreseeable... final order. [1] Counsel should consult up-to-date litigation references. Many federal defender offices... The Detention Watch Network maintains a website to follow these issues. [2] Habeas corpus in federal district court is also available to challenge illegal detention before a removal order... v. Davis ); Tam v. INS , No. S-98-183 FCD, 1998 WL 466584 (E.D. Cal.... the foreseeable future); Theck v. INS , No. CV97-6206-JSL (RC), 1998 WL 611009 (C.D. Cal.... who will not be accepted for deportation to Korea in the foreseeable future has the right to marry, which would allow him to be deported to Spain); In re Indefinite Detention Cases ,... factors set forth in the regulations pertaining to release pending deportation violated noncitizens’ procedural due... found that this regulation cannot be applied to a noncitizen granted advance parole, where the... This group of noncitizens is not subject to INA § 236(c). That section applies only to those who have been “arrested on a... v. Kim , arguably do not apply to detention issues involving arriving aliens. ... regulation [3] denies the Immigration Judge jurisdiction to redetermine conditions of custody with respect to [subparagraph (2)(B)] “[a]rriving aliens in removal proceedings, including persons paroled after arrival pursuant to section 212(d)(5) of the Act.” The term... an applicant for admission coming or attempting to come into the United States at a... States by any means, whether or not to a designated port-of-entry, and regardless of the... alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that... and obtained in the United States prior to the alien’s departure from and return to the United States, shall not be considered... see 8 C.F.R. § 1001.1(9). Thanks to Rick Coshnear.
Criminal Defense of Immigrants: §10.49
. If prosecution and court wish to impose a certain amount of time in... and a new offense, counsel can seek to accept the custody time on the new... violation on the original offense, in order to keep the total sentence ordered by the... example, if the client was originally sentenced to six months on a theft offense, and the court wishes to impose an additional six month sentence on... violation conduct, counsel could ask the court to do so on a new theft conviction... as an aggravated felony, since there was no total one-year sentence on any single theft conviction. The same tactic can be used to accept a custody order on a certain... in its entirety, that the client waive credit for the time he has already served... six month sentence on count II with no deduction for time already served. That... is not, counsel could ask the court to impose the additional custody time as punishment... regardless of sentence, it may be advisable to take a prison sentence on the original
Criminal Defense of Immigrants: §8.33
Whether to Alert Prosecution or Court to Immigration Issues This can be a difficult... the prosecution or court will be aware to some extent of the immigration issues, often... the prosecution (or court) will be delighted to learn they can force the permanent banishment... additional source of leverage against the client, to force the client to take more counts or serve more years... therefore be in the client’s interest not to disclose the immigration situation. For example,... consequences can be avoided by a plea to an immigration-harmless offense without necessarily alerting the prosecution or court to the immigration situation. The client has an absolute statutory right to keep silent in plea discussions about his... minor, many prosecutors and courts are open to respecting the immigration needs of the client,... · they do not want to deport the breadwinner away from his or... minor offense that s/he will be forced to take the case through a lengthy trial, appeal, and on to the Supreme Court and into post-conviction relief if necessary in an effort to preserve the ability to reside here at home with family members, and the prosecution is unwilling to incur major transaction costs over a minor... by inflicting the same criminal penalties (and no more) on the client that are routinely... Under these circumstances, it may make sense to make the immigration consequences a focal point... that at the time of the plea no defendant shall be required to disclose his or her legal [immigration] status to the court.” (California Penal Code §... of their immigration status, since an answer to these questions may provide a link in the chain of evidence necessary to convict them of illegal entry.
Safe Havens: §4.26
While the immigration statute limits pardons to aggravated felonies, crimes of moral turpitude, and... an argument that a pardon is effective to eliminate any deportable conviction. (A) In... will provide immigration relief; legislative pardons have no effect. While the BIA has... specific federal legislation, so they remain effective to eliminate the adverse immigration consequences specified in... [1] This protection has been extended to encompass, in addition, those noncitizens who would... by the authorities who granted the pardon to revoke the pardon. [5] The immigration courts need not grant a stay or continuance of deportation to enable the noncitizen to apply for a pardon. The decision whether to issue a stay is a discretionary one.... provides that an executive pardon is effective to eliminate the deportation consequences of one or... offense cannot be used as a basis to establish a noncitizen’s deportability regardless of the... of the Constitution, which authorizes the President “to grant Reprieves and Pardons for Offenses against... Separation of Powers for Congress through legislation to try to impose limits on the effect of the... the basis of this provision; the authority to deport hinges completely on the fact of... only recipients of Presidential pardons, as opposed to state pardons, are not deportable for the pardoned offense, the argument would apply to only a handful of people. There are special arguments in the Ninth Circuit to prevent the government from deporting a noncitizen... it violated equal protection of the laws to allow noncitizens whose offenses qualified for treatment... had their convictions expunged under state laws, to be subject to removal on account of those offenses. In... on the ‘mere fortuity’ that they happen to have been prosecuted under state rather than federal law, or under different state laws, as there is no rational basis for distinguishing among the affected... , and Garberding . Congress’ attempt to limit the presidential power in violation of... ground of deportability, notwithstanding the statutory language to the contrary, because the attempt to limit presidential pardon authority invalidates the entire... § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v) (2000); no implicit waivers may be read into statute;... 2000). [6] Id. at 748. [7] Thanks to Ben Caspar and Dan Kesselbrenner for this... law. [5] The President’s constitutional power to grant conditional pardons is discussed in Schick... a pardon states that it is granted “to prevent deportation” does not make it conditional,... U.S. High Commissioner and the U.S. Ambassador to Germany . [12] Such a pardon... accepted by the immigration authorities as equivalent to a pardon. [15] Commutations of sentence... restoring civil rights may be considered equivalent to a pardon, for immigration purposes, if it... a Wisconsin restoration of civil rights is no longer regarded as equivalent to a full and unconditional pardon for immigration... Pardons . Legislative pardons are ineffective to avoid deportation. [19] (4) ... (5) Pardon Effective Only As to Specific Offense . In Roccaforte v.... and entering in the nighttime with intent to commit burglary and larceny, and (2) possession of burglary tools with intent to commit larceny. He had been ordered... by Immigration Act of 1990, Pub. L. No. 101-649, § 602, 104 Stat. 4978, 5081. The predecessor statute, prior to 1990, was INA § 241(b). The... 561 (8th Cir. 1959)(court rejected government’s attempt to discredit a pardon of a conviction of... not possible for a third party collaterally to attack or indirectly impeach it); Matter of... 1974) (BIA remanded Iranian nonimmigrant student’s case to allow unconditional pardon for the crime of theft to be received into evidence); Matter of L... saying that the noncitizen was being pardoned “to prevent deportation,” since quoted words did not create a condition that if violated, would cause the pardon to become null and void and merely described... pardon because it did not restore offender to former state of innocence); Matter of C... of any other crime, otherwise this pardon to become null and void.” A conditional pardon is one to which a condition is annexed, the performance of which is necessary to the pardon’s validity.) . [4] Matter of... conversion, larceny, receiving stolen goods, and conspiracy to steal — did not qualify as executive... (discharge from parole nunc pro tunc pursuant to a state statute providing that “punishment so... 539 (BIA 1988) (a pardon was held to be legislative, and therefore ineffective, when granted pursuant to a state constitutional provision specifying that on... N. Dec. 336 (BIA 1961) (statutory purpose to ban legislative pardons permits recognition of pardon granted by U.S. High Commissioner for Germany to Soviet citizen convicted of abortion). [20] Matter... granted by sentencing court held not equivalent to full and unconditional executive pardon required to eliminate conviction for immigration purposes). [21] Roccaforte... Cir. 2001) (foreign expungement effective by analogy to FFOA, distinguishing foreign pardons). Cf. Matter... person convicted of a felony and committed to state prison or other institution may petition... charges may apply for a pardon directly to the governor. Under California Penal Code... lives around. He does not appear to need to avoid granting any boons to criminals because his right-wing credentials are sufficiently strong. Therefore, it may have become worthwhile to apply for a pardon in California for... Georgia State Board of Pardons and Paroles to a Greek permanent resident who had been... More recently, the Georgia pardon board, insulated to some extent against the political pressures that preclude so many governors from exercising the power to pardon, has become active in granting pardons to avoid immigration consequences. In Georgia , it is apparently the practice to sentence every misdemeanant to 12 months custody, and then suspend execution of that sentence in many cases so as to place the defendant on probation. This... of Pardons and Paroles granted a pardon to avert imminent deportation on account of a... Board held that a pardon automatically given to an immigrant from Ireland pursuant to a state constitutional provision did not qualify... purposes. The pardon was issued pursuant to the Louisiana Constitution, which partly provided that... the argument that because, under Louisiana law, no pardon was available to the noncitizen as a first-felony offender that... request a pardon if s/he is eligible to have the conviction set aside, at least until the application to do so has been denied. [6] ... were granted, and 64 denied or allowed to expire. Of the five that were... had indicated that they were not opposed to the pardon. In each case, the... on her property. She was sentenced to three years probation. She had no other criminal history, and was also facing certain deportation to Norway . Her story was in... Governor John Kitzhaber granted an unconditional pardon to Hector Carillo-Landeros, convicted in 1991 of Sex... since he was 11, he was going to face deportation without the pardon. Even though he was pardoned, he agreed to continue to register as a sex offender. At the same time, the Governor denied the request to commute the sentence of another person then... criminal justice system has failed or provides no adequate remedy for manifest injustice. ... application for his noncitizen client, states that to obtain a pardon one needed to show very strong equities, and an outpouring... “do your homework on the prosecuting attorney, to the victim and etc.” Washington State .... by a Mexican citizen was not sufficient to eliminate the immigration effects of convictions for... case, following the termination of deportation proceedings, to afford the noncitizen an opportunity to apply for a full and unconditional pardon... for the automatic restoration of civil rights to a person by serving out his or... be restored only by a pardon, according to a 1916 opinion of the Wisconsin attorney... certificate of rehabilitation procedure] shall not apply to . . . persons convicted of a
Tooby's California Post-Conviction Relief for Immigrants: §4.21
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. Often, a... wrongly that s/he now has a green card. If a person has a green card, s/he may use shorthand and describe him-... the letter A) which is the key to finding his or her immigration record when... see Appendix A, infra , is necessary to determine a person’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. Note: Often... by the border patrol and being persuaded to sign a waiver form and accept a... 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... than 180 days is generally not subject to the rules of admissibility upon returning, but one exception (of many) to this rule occurs when s/he has committed... If an LPR is unable to avoid a conviction that triggers deportation, inadmissibility,... 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, [5] or INA 212(h) [6] 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.” [7] ... 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... granted political asylum [10] have been admitted to the United States or allowed to remain in the United States because of... been granted LPR status, but are eligible to adjust status to LPR after being present in the U.S.... It is 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 [12] and... 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), [13] and thereby... [14] If s/he cannot adjust status to LPR, the next goal is to preserve eligibility for the relief of withholding... serious crime.” [16] 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) Even... United States , the client may wish to obtain various immigration benefits such as voluntary... See §§ 3.31-3.33, infra , on how to verify the client’s immigration situation. [2] But... Immigrants § 24.30. [8] 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: §1.1
Introduction The aim of this volume is to aid immigration and criminal counsel by gathering... principles used by immigration and federal courts to determine when a conviction is, and is... crimes of moral turpitude from roughly 1940 to the present. This was done by... from 1 I. & N. Dec. 1 to the present, and all reported federal cases.... generalizing from a CMT decision cited here to the particular client’s case you may have... interim. The law governing the rules to be applied in determining whether a given... crimes of moral turpitude in several contexts, to reduce the need to repeat the law governing certain general principles... what is not a conviction, effective ways to eliminate a conviction for immigration purposes, and... relief in immigration court, organized alphabetically according to the name of the status or form... and determining whether the minimum conduct necessary to violate the statute invariably involves moral turpitude,... and second, consulting the record of conviction to determine which offense within a divisible statute,... that point, the basic analysis is employed to determine whether the conviction involves moral turpitude.... well as discussions of regulatory, target and non-substantive offenses. See §§ 8.22-8.24, infra .... involving moral turpitude. In addition to compiling the most complete collection of CMT cases anywhere, we have tried to make the law governing what offenses are,... There are a number of ways to discover the case law closest on point... offense is discussed, starting from one citation to a pertinent case; and (3) The Index seeks to grant access to specific discussions according to the key words defining the offense. ... well. This Table is kept up to date on a monthly basis on our web site: http://www.NortonTooby.com . Appendix B consists... S.Ct. 105, 136 L.Ed.2d 59 (1996) (refusing to adopt bright-line rule regarding classification of crimes... analyzed on a case-by-case basis). [2] Reference to a section of this work will be
Criminal Defense of Immigrants: §3.63
in criminal cases involving noncitizens may need to investigate and obtain evidence from outside the United States to present in defense of their clients. [1]... will often be willing and able both to assist in the conduct of a foreign... in R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law 347 (2d ed. 2006). See... that state courts have a comparable power to compel the attendance of witnesses abroad.” [2]... Lawful Permanent Resident, however, cannot be compelled to testify since they owe no allegiance to the United States . [3] Defense counsel may be able to use a “treaty of mutual assistance” or letter rogatory to compel foreign testimony. [1] 28 U.S.C.... in R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.3-12.8, 348-349 (2d ed.... . See also F.R.Civ.P. 4(j)(1) (how to effect service of process in another country... [2] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-21 (P.... their nationality and immigration status allows them to do so. A visa such as a visitor’s visa may also allow them to enter to attend court. If they do not... they are inadmissible, it will be necessary to seek to have them paroled into the United States . The DHS Secretary has authority to parole a noncitizen into the United States to testify without admitting the witness in immigration... security risk or a risk of failing to appear as required or leave the United... is a cooperating witness, providing important information to the prosecution in a state or federal case, it may be possible to have the witness admitted to the United States by obtaining an “S,”... §§ 24.15-24.17, infra . [3] To request parole, obtain Form I-131 from the... however. If the government refuses to admit the witness, the witness may still... violating due process by preventing defense access to exculpatory testimony. [6] [1] 8 U.S.C. §... generally R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.27-12.32, 354-355 (2d ed.... 244 (1st Cir. 1990) (prosecutorial misconduct intentionally to obstruct compulsory defense process). (C) Government... a witness in, or as a party to, any criminal case under investigation or pending... “This rule arguably may be expanded to require the consent of the defense as well, in light of the constitutional due process restrictions on non-reciprocal rules favoring the prosecution in criminal proceedings.... (1973).” [2] Federal courts have authority to detain material witnesses upon a showing that “it may become impracticable to secure the presence of the person by subpoena.” [3] The court must balance the liberty interest of the witness against... defendant, and may use less restrictive means to ensure appearance, such as electronic monitoring or bond. [4] If the... is mandated.” [5] Federal standards apply to this question. [6] Conflicting authority exists on which federal standard to apply, but the defendant generally must show... Three circuits also require the defense to show “bad faith” on the part of the government in allowing the deportation to occur. [8] A defendant will usually... be advised that it may be impossible to obtain the witness’s presence at trial if... at least show it made reasonable efforts to secure the attendance of the absent witness.... [2] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-19 (P.... made that it was material, was favorable to the defendant, and was not cumulative). ... generally American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-20 (P.... (1968) (government must show good faith effort to produce witness). Compare United States v.... 1992) (good faith effort includes taking steps to ensure witness remains in United States); with... 467, 469 (8th Cir. 1984) (government has no obligation to secure attendance of deported witness since effort... may in exceptional circumstances allow a party to take a deposition of a witness in... of such depositions include taking great care to obtain an interpreter and learning about the... of the foreign witness if it chooses to do so. If the defense has... court may commit reversible error by refusing to order the deposition of a foreign witness, who is unwilling or unable to travel to the United States to testify. [5] If the court orders... be admissible. [6] A court’s refusal to admit sworn videotaped depositions can violate the defendant’s constitutional right to present a defense. [7] [1] F.R.Crim.P. 15(a) (allowing court to order foreign deposition “[w]henever due to exceptional circumstances of the case it is... Cir. Dec. 11, 1998) (Sixth Amendment error to fail to admit into evidence sworn videotaped deposition testimony... 1993). [2] See Ivanichvili, A Lawyer’s Guide to Cross-Cultural Depositions , 32 Colo. Law .... R . McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.42-12.46, 359-360 (2d ed.... Cir. 1979). Some courts, however, refuse to authorize the deposition of a witness who... Cir. Dec. 11, 1998) (Sixth Amendment error to fail to admit into evidence sworn videotaped deposition testimony... Relations requires federal and state law enforcement to notify every foreign national who is arrested within the United States of his or her right to consult with consular officials from their home... in fact, often be of great assistance to the foreign national, and to defense counsel, in such matters as arranging... Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, Art. 36(1)(b).
Tooby's California Post-Conviction Relief for Immigrants: §10.60
Penal Code § 1203.4a requires the court to grant expungement of a misdemeanor conviction, even... has elapsed since pronouncement of judgment; (c) no new charges are pending, and the applicant... a minor later conviction, counsel can try to persuade a court that it is too minor to disqualify the client from expunging the conviction, even though there is no statutory provision expressly authorizing discretion under these circumstances. This expungement statute does not apply to misdemeanors listed in Vehicle Code § 42001(b), [2] or to infractions. [3] [1] Penal Code § 1203.4a(a)... honest and upright life and has conformed to and obeyed the laws of the land... firemen], and 2803 [disobedience of police order to stop to correct illegal load]. [3] Penal Code §
Tooby's California Post-Conviction Relief for Immigrants: §11.18
In these jurisdictions, it is therefore possible to request and obtain a bond from the... prohibits the indefinite detention of noncitizens subject to a final order of removal where there is no repatriation agreement with their home country, to those who were never formally admitted into... have been issued, [1] expanding DHS authority to obtain an automatic stay of the immigration... by filing a Notice of Service Intent to appeal Custody Redetermination (Form EOIR-43) within one... the case. If the DHS fails to file an appeal with the BIA within... Commissioner can certify the Board's custody order to the Attorney General, and then release is... makes a decision. The balance of the regulation remains unchanged. These... greater than $10,000, except there was formerly no provision staying release after the BIA decided... the automatic stay provision, and leaves it to the discretion of the DHS, rather than the IJ, because there is no limitation of the new automatic stay regulation to those falling within INA § 242(a)(2).
Tooby's California Post-Conviction Relief for Immigrants: §4.63
in criminal cases involving noncitizens may need to investigate and obtain evidence from outside the United States to present in defense of their clients. [1]... will often be willing and able both to assist in the conduct of a foreign... in R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law 347 (2d ed. 2006). See... that state courts have a comparable power to compel the attendance of witnesses abroad.” [2]... Lawful Permanent Resident, however, cannot be compelled to testify since they owe no allegiance to the United States . [3] Defense counsel may be able to use a “treaty of mutual assistance” or letter rogatory to compel foreign testimony. [1] 28 U.S.C. §... in R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.3-12.8, 348-349 (2d ed.... . See also F.R.Civ.P. 4(j)(1) (how to effect service of process in another country... [2] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-21 (P.... their nationality and immigration status allows them to do so. A visa such as a visitor’s visa may also allow them to enter to attend court. If they do not... they are inadmissible, it will be necessary to seek to have them paroled into the United States . The DHS Secretary has authority to parole a noncitizen into the United States to testify without admitting the witness in immigration... security risk or a risk of failing to appear as required or leave the United... is a cooperating witness, providing important information to the prosecution in a state or federal case, it may be possible to have the witness admitted to the United States by obtaining an “S,”... Immigrants §§ 24.15-24.17 (2007). [3] To request parole, obtain Form I-131 from the... however. If the government refuses to admit the witness, the witness may still... violating due process by preventing defense access to exculpatory testimony. [6] [1] 8 U.S.C. §... generally R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.27-12.32, 354-355 (2d ed.... 244 (1st Cir. 1990) (prosecutorial misconduct intentionally to obstruct compulsory defense process). (C) Government Deportation... a witness in, or as a party to, any criminal case under investigation or pending... “This rule arguably may be expanded to require the consent of the defense as well, in light of the constitutional due process restrictions on non-reciprocal rules favoring the prosecution in criminal proceedings.... [2] Federal courts have authority to detain material witnesses upon a showing that “it may become impracticable to secure the presence of the person by subpoena.” [3] The court must balance the liberty interest of the witness against... defendant, and may use less restrictive means to ensure appearance, such as electronic monitoring or bond. [4] If the... is mandated.” [5] Federal standards apply to this question. [6] Conflicting authority exists on which federal standard to apply, but the defendant generally must show... Three circuits also require the defense to show “bad faith” on the part of the government in allowing the deportation to occur. [8] A defendant will usually... be advised that it may be impossible to obtain the witness’s presence at trial if... at least show it made reasonable efforts to secure the attendance of the absent witness.... [2] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-19 (P.... made that it was material, was favorable to the defendant, and was not cumulative). ... generally American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-20 (P.... (1968) (government must show good faith effort to produce witness). Compare United States v.... 1992) (good faith effort includes taking steps to ensure witness remains in United States); with... 467, 469 (8th Cir. 1984) (government has no obligation to secure attendance of deported witness since effort... may in exceptional circumstances allow a party to take a deposition of a witness in... of such depositions include taking great care to obtain an interpreter and learning about the... of the foreign witness if it chooses to do so. If the defense has... court may commit reversible error by refusing to order the deposition of a foreign witness, who is unwilling or unable to travel to the United States to testify. [5] If the court... be admissible. [6] A court’s refusal to admit sworn videotaped depositions can violate the defendant’s constitutional right to present a defense. [7] [1] F.R.Crim.P. 15(a) (allowing court to order foreign deposition “[w]henever due to exceptional circumstances of the case it is... Cir. Dec. 11, 1998) (Sixth Amendment error to fail to admit into evidence sworn videotaped deposition testimony... 1993). [2] See Ivanichvili, A Lawyer’s Guide to Cross-Cultural Depositions , 32 Colo. Law . 81 (2003). [3] See generally R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law §§ 12.42-12.46, 359-360 (2d ed.... Cir. 1979). Some courts, however, refuse to authorize the deposition of a witness who... Cir. Dec. 11, 1998) (Sixth Amendment error to fail to admit into evidence sworn videotaped deposition testimony... Relations requires federal and state law enforcement to notify every foreign national who is arrested within the United States of his or her right to consult with consular officials from their home... in fact, often be of great assistance to the foreign national, and to defense counsel, in such matters as arranging... Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, Art. 36(1)(b).
Crimes of Moral Turpitude: §9.35
turpitude; a conviction of unlawfully aiding one to escape from jail is not a crime... Dec. 512 (BIA 1951) (conviction of attempt to escape from reformatory in violation of Chapter... ILCS 5/11-204.1(a)(1), constitutes a CMT: "It seems to us that a person who deliberately flees... officer who, the fleer knows, wants him to stop, thus deliberately flouting lawful authority and... Ashcroft , supra. He may not want to endanger anyone, but he has to know that he is greatly increasing the... consequence of his deliberate and improper decision to ignore a lawful order of the police.... of 18 U.S.C. § 1071 was contrary to justice and an act of baseness, so
Safe Havens: §9.3
essential element, that the offense be “related to” a controlled substance listed on the federal... listed in the federal schedules in order to trigger deportation under the aggravated felony drug... substances conviction, therefore, 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... However, there are a number of non-CMT drug offenses from which a safe haven... ground of deportability [5] should be read to cover only abuse of, or addiction to, a drug on the federal lists. ... substances grounds of deportation require the drug to be in the federal list, this ground... specificity, this ground of deportation would seem to violate due process by being void for vagueness, since it would have no boundaries other than the common sense definition... conviction. Defense counsel can attempt to sanitize the record of conviction of the identity of the specific controlled substance, so no particular controlled substance is identified in the... listed controlled substance, the defendant may ask to plead guilty to an amended charge that fails to specify any particular controlled substance, but merely... such as cocaine, the defendant can attempt to plead guilty to the statute as written (which does not... district attorney, who need only decide not to take the case to trial over the difference between the portion of the charge to which the defendant is willing to plead guilty and the larger or different... The court can simply accept the plea to a non-specified drug on its own. While this “cleaning” strategy works well to construct a conviction proof against a ground... some cases, defense counsel may be able to plead the defendant guilty to commission of a state drug offense explicitly... Unless, and until, that substance is added to the federal schedules, the noncitizen will successfully... 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... with the burden of proof loses 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... of drug paraphernalia, 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. [2] ... 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. [5] However, there... took a “close enough” position by failing to hold that the a conviction under the... 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). [6]... 305 (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. 1611,... 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. Gousse... 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). (E) 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... down the list, use the strikeout function to mark any highlighted/nonhighlighted drug pairs. These... 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: §6.3
Custody Normally, criminal defense counsel will attempt to get the client out of criminal custody... then transport the client across the country to a distant immigration detention center, in a... and it may be difficult or impossible to secure the presence of the client in... The client will also not receive credit for time served, against a criminal sentence,... should therefore think carefully about the decision to obtain the client’s release from criminal custody,... and the immigration court is not allowed to release the client on bond, resulting in... is of great importance for criminal counsel to avoid a disposition of the criminal case that triggers mandatory deportation. Information on how to conduct the criminal defense to achieve this result is discussed in §§... 6.4, infra , for advice on whether to secure the client’s release from criminal custody
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