Immigration Consequences of Criminal Conduct CPCS Immigration Impact Unit 2011

1. Immigration Consequences of Criminal Conduct CPCS Immigration Impact Unit 2011

2. Why Do I Need to Know This? • Padilla v. Kentucky, U.S. Supreme Court case decided 3/31/10 • Defense counsel has 6th Amend duty to advise client about immigration consequences prior to pleading guilty • Failure to advise is ineffective assistance of counsel

3. So you MUST advise your client of immigration consequences • To advise your client, you need to know: • Immigration status • Pending charges • Prior criminal history • Analysis depends on interplay of all 3

4. Topics of discussion • Types of Immigration Status • Immigration Terms of Art • Inadmissible Offenses • Deportable Offenses • Post conviction relief • Most important things to remember

5. Types of Immigration Status • U.S. Citizen • Includes Puerto Rico & U.S. territories • Legal Permanent Resident (“green card”) • Non-Immigrant • Student • Tourist • Other types of Visas • Out of Status or Undocumented • Asylum Seekers • Temporary Protected Status

6. Temporary Protected Status • In addition to grounds of inadmissibility: • No TPS if one felony or two misdemeanor convictions as defined under 8 CFR 244.1 • For MA crimes, ineligible for TPS if; • 1 felony conviction, or 1 misdemeanor if actual sentence is more than one year, or • 2 misdemeanor convictions if actual sentences are one year or less

7. Types of Consequences • Removal of person who had been lawfully admitted to U.S. • Removal of person seeking adjustment to permanent resident • Denial of admission • Bar to naturalization • Loss of visa or temporary legal status • Denial of asylum

8. Nature of Proceedings • Immigration proceedings are civil in nature. • Deportation is not considered punishment (but see Padilla). • The prohibition against ex post facto laws does not apply to deportation proceedings.

9. Definition of Conviction • A formal judgment of guilt or Where no formal finding of guilt: • If defendant pleads guilty, nolo contendere or has admitted sufficient facts to warrant a finding of guilt, AND • The judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

10. Treatment of MA Dispositions under Federal Immigration Law

11. Treatment of MA Dispositions under Federal Immigration Law

12. Treatment of MA Dispositions under Federal Immigration Law (cont.)

13. Juvenile Dispositions • A finding of delinquency is not a conviction for immigration purposes • A youthful offender adjudication may be a conviction for immigration purposes • Note: juvenile offenses may have imm consequences, e.g. deport/inadmiss offenses for which conviction not required

14. Divisible Statutes When there is more than one way to violate a criminal statute • Certain provisions of a statute include deportable offenses and others do not • Massachusetts has many divisible statutes

15. Divisible Statutes (cont.) • If “record of conviction” (ROC) proves specific offense is CMT, immigration fact finder can not consider any other evidence • If ROC is not conclusive, fact finder may consider other evidence to determine if offense is CMT, including police report

16. Record of Conviction The record of conviction includes: • Complaint or indictment • Plea agreement • Plea colloquy transcript or facts admitted by defendant during plea • Sentence • Judgment

17. Good Moral Character • Required for naturalization and many forms of relief from removal or exclusion from U.S. • Many crimes preclude finding of GMC if occurred during relevant period • If not precluded from finding of GMC, criminal behavior is considered in discretionary decision

18. Crime of Violence Federal definition under 18 U.S.C. 16 (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense

19. Crime Involving Moral Turpitude • A crime where the conduct is inherently base, vile, or depraved…” • An act that is per se morally reprehensible and intrinsically wrong, or malum in se ..” [Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), requires scienter of at least recklessness and “reprehensible conduct”]

20. Examples of Crimes Involving Moral Turpitude • Crimes against the person: murder, manslaughter, assault to rob or kill, ADW, ABDW, most agg assaults • Sex crimes: rape, indecent assault and battery, prostitution, failure to reg • Crimes against property: arson, robbery, malicious destruction, larceny, shoplifting, any type of fraud or theft (with intent to permanently deprive)

21. NOT Crimes Involving Moral Turpitude • A&B (probably not) and simple assault • Breaking and entering, only if no one home and the intended felony or misdemeanor is not CIMT • Disorderly conduct, use without authority • OUI is generally not a CIMT

22. Inadmissible Offenses • Crime involving moral turpitude, unless: • One crime committed when under 18 years old and at least 5 years before admission or • Maximum possible penalty is one year or less and sentence is less than 6 months

23. Inadmissible offenses (cont.) • Controlled substance offense • Multiple offenses • 2 or more convictions for which aggregate sentence is more than 5 years • Prostitution

24. Deportable Offenses • Controlled Substance Offenses • Crimes of Moral Turpitude • Firearm Offenses • Domestic Violence • Aggravated Felonies

25. Controlled Substance Offenses • Conviction of any drug offense • Except 1 offense of 30 grams or less of marijuana • Government’s burden to prove weight of marijuana exceeds 30 grams • Includes conspiracy or attempt • If record of conviction does not identify the drug, it cannot support order of deportation

26. Crime Involving Moral Turpitude • One CIMT within 5 years of admission, where a sentence of at least one year may be imposed or • Two CIMTs at any time, not arising out of a single scheme of criminal misconduct

27. Firearm Offenses • Includes a conviction for any crime of buying, selling, using, owning, possessing or carrying any firearm or destructive device • Includes conspiracy and attempt • May also include crimes for which possession or use of a firearm is an element of the offense

28. Domestic Violence Includes conviction for: • Crime of domestic violence • Stalking • Child abuse • Child neglect • Child abandonment or Violation of criminal or civil protective orders

29. Consequences of Aggravated Felony Conviction • Automatically deportable with very few forms of relief available • If no AF, may be eligible for relief from deportation or exclusion • Mandatory detention • Denial of naturalization • Permanent bar from returning to U.S.

30. Aggravated Felony • To be avoided at all costs! • Causes the most severe immigration consequences • Minor offense can be AF • Misdemeanor can be AF • 8 U.S.C.1101(a)(43) – federal statutory definition

31. Aggravated felony • Conviction-based AFs • Conviction of specified offense = AF regardless of sentence • Sentence-based AFs • Conviction of specified offense and • Sentence of one year or more • Includes attempt and conspiracy

32. Some Conviction-based Aggravated Felonies • Murder, rape, sexual abuse of a minor (inc. indecent A&B on person under 14) • Trafficking in firearms • Money laundering, fraud or deceit where loss exceeds $10,000 • Child pornography • Owning or managing prostitution business • Drug trafficking crimes

33. Drug Trafficking Crimes • Includes possession with intent, distribution, or manufacturing of any controlled substance • Probably includes conviction for second and subsequent possession • Does not include MA conviction for first offense possession (except possession of flunitrazepam) • Even if not AF, deport and inadmiss offense

34. Some Sentence-based Aggravated Felonies • Crimes of violence • Burglary • Theft offenses (inc. receiving stolen property) • Bribery • Obstruction of justice or perjury and • Sentence of one year or more

35. Definition of “Sentence” • Under immigration law, a “sentence of incarceration” includes suspended sentences. • Ex. 18 months suspended for 2 years = 18 month sentence • Ex. 2 years, 6 months to serve, balance suspended for 1 year = 2 year sentence • Length of probation is irrelevant

36. Post Conviction Relief • Motion for New Trial or to Vacate Plea • Violation of immigration warning statute M.G.L. ch.278, §29D • Ineffective assistance of counsel • at trial, plea or sentencing, Padilla v. Kentucky, Commonwealth v. Clarke • Motion to Revise Sentence • Must be allowed due to constitutional or procedural defect, not to avoid immigration consequences

37. Most Important Things to Remember • Determine client’s immigration status • Determine client’s goals • Talk to client’s immigration attorney • Avoid aggravated felony conviction • Consider client’s prior record, inc. CWOFs that were dismissed • AND…

38. Most Important Things to Remember (continued) • Tell client not to talk to immigration official, apply for anything, or leave U.S. without talking to immigration attorney first • GET HELP analyzing immigration consequences

39. Contact the CPCS Immigration Impact Unit for Help CPCS Immigration Impact Unit 21 McGrath Highway Somerville, MA 02143 TEL: 617-623-0591 FAX: 617-623-0936 iiu@publiccounsel.net [Please fill out the intake form!!]