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Immigration Consequences o f Criminal Conduct f or the Appellate Attorney CPCS Immigration Impact Unit 2012

Immigration Consequences o f Criminal Conduct f or the Appellate Attorney CPCS Immigration Impact Unit 2012. Topics of Discussion. Types of Immigration Status. Immigration Terms of Art. Immigration Consequences of Criminal Offenses. Post Conviction Relief.

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Immigration Consequences o f Criminal Conduct f or the Appellate Attorney CPCS Immigration Impact Unit 2012

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  1. Immigration Consequences of Criminal Conduct for the Appellate Attorney CPCS Immigration Impact Unit 2012

  2. Topics of Discussion • Types of Immigration Status • Immigration Terms of Art • ImmigrationConsequencesofCriminalOffenses • Post Conviction Relief

  3. Understanding the Immigration Consequences of Criminal Conduct Requires Knowing:

  4. Topics of Discussion • Types of Immigration Status • Immigration Terms of Art • ImmigrationConsequencesofCriminalOffenses • Post Conviction Relief

  5. Types of Immigration Status U.S. Citizen Legal Permanent Resident Lawful Non-Immigrants Refugees & Asylees Temporary Protected Status Undocumented and Out of Status

  6. Topics of Discussion • Types of Immigration Status • Immigration Terms of Art • ImmigrationConsequencesofCriminalOffenses • Post Conviction Relief

  7. “Conviction” A formal judgment of guilt or Where adjudication withheld: • 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. 8 U.S.C. § 1101(a)(48)

  8. MA Dispositions Under Federal Immigration Law

  9. Juvenile Dispositions • A finding of delinquency is not a conviction for immigration purposes • A youthful offender adjudication may be a conviction for immigration purposes Some grounds of inadmiss/deport don’t require a conviction, so juvenile dispositions can still have imm. conseq.

  10. Sentence EX: A 2 year sentence of imprisonment, 6 months to serve, the balance suspended for 1 year = a 2 year sentence of imprisonment.

  11. Crime Involving Moral Turpitude Matter of Silva-Trevino, 24 I&N Dec. 687 (2008)

  12. Examples of Crimes Involving Moral Turpitude

  13. Topics of Discussion • Types of Immigration Status • Immigration Terms of Art • ImmigrationConsequencesofCriminalOffenses • Post Conviction Relief

  14. 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

  15. Inadmissibility v. Deportability • If client has been lawfully admitted to the U.S. (LPR, Visa, etc.), may be charged with grounds of deportability (e.g., loss of status) pursuant to 8 USC 1227. • If client is seeking entry or lawful admission to the U.S., may be charged with grounds of inadmissibility (bar to obtaining an immigration benefit) pursuant to 8 USC 1182.

  16. Primary Crime-Related Provisions of Immigration Law • 8 USC 1182(a)(2) – grounds of inadmissibility • 8 USC 1227(a)(2) – grounds of deportability • 8 USC 1101(a)(43) – aggravated felony statute

  17. Grounds of Inadmissibility and Deportability

  18. Inadmissible Offenses:Crime Involving Moral Turpitude A person is inadmissible based on 1 crime involving moral turpitude Petty offense exception: • 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

  19. Inadmissible Offenses:Controlled Substances • Violation of any law RELATING TO controlled substances • Any alien who the AG has reason to believe is a drug trafficker.

  20. Inadmissible Offenses:Prostitution • Engaging in prostitution • Procuring a prostitute • Receiving the profits from prostitution (pimps)

  21. Inadmissible Offenses:Multiple Offenses Multiple offenses - 2 or more convictions for which aggregate sentence is more than 5 years

  22. Deportable Offenses: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

  23. Deportable Offenses:Controlled Substance Offenses Conviction for ANY drug offense makes a person deportable - Except1 offense of 30 grams or less of marijuana - Includes conspiracy or attempt

  24. Deportable Offenses: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

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

  26. Aggravated Felony • To be avoided at all costs! • 8 U.S.C.1101(a)(43) – federal statutory definition • Minor offense can be AF • Misdemeanor can be AF

  27. Aggravated Felony

  28. Aggravated Felony cont’d

  29. Aggravated Felony cont’d

  30. Topics of Discussion • Types of Immigration Status • Immigration Terms of Art • ImmigrationConsequencesofCriminalOffenses • Post Conviction Relief

  31. Immigration Related Post Conviction Relief • PCR • Motions for New Trial • (Rule 30) • Motions to Revise and Revoke • (Rule 29)

  32. Revise and Revoke Rule 29 motion is used when the sentence, not the conviction, is what has caused immigration problems. Ex: A&B with a 1 year sentence is AF A&B with 364 day or less sentence is not AF

  33. Revise and Revoke A motion to revise and revoke shall be granted if “it appears justice has not been done.” Must be based on facts that existed at time of original sentencing

  34. Revise and Revoke

  35. Important R&R case law • Commonwealth v. Stubbs, • 15 Mass. App. Ct. 955 (1983) • Commonwealth v. Dejesus, • 440 Mass 147 (2003) • Matter of Song, 23 I&N Dec. 173 (BIA 2001)

  36. Padilla Motions Rule 30 motion for new trial Used when the conviction itself causes immigration consequences EX: conviction for distribution of a controlled substance

  37. Where do Padilla motions come from? Padilla v. Kentucky, 130 S. Ct. 1473 (2010) 6th A duty to advise client of immigration consequences prior to pleading guilty Failure to advise is ineffective assistance of counsel!

  38. Padilla motion requirements Padillaapplied the two-prong test for IAC established in Strickland v. Washington, 466 US 668 (1984) and adopted in Commonwealth v. Saferian, 366 Mass. 89, (1974): • Deficient performance (counsel’s representation “fell below an objective standard of reasonableness.”) • Prejudice (“but for counsel’s unprofessional errors, the result of the proceeding would have been different.”)

  39. Deficient Performance What is deficient performance? • Affirmative mis-advice • Failure to give specific advice (no general warnings) How to show deficient performance? • Affidavits showing • Counsel’s failure to inquire about immigration status • Counsel’s mis-advice • That counsel gave only very general warnings (i.e. read the green sheet)

  40. Affidavit of Trial Counsel • Very general • Very specific • None at all

  41. Prejudice D must show that but for counsel’s deficient performance, the proceedings would have been different.

  42. How do you show prejudice? • D must aver that he would have rejected the plea and gone to trial. and • D must show it would have been rational to reject the plea bargain due to: • Substantial ground of defense that would have been pursued at trial; • Reasonable probability that a different plea bargain could have been negotiated; or • “Special circumstances” that show D placed particular emphasis on immigration consequences. Commonwealth v. Clarke, 460 Mass. 30 (2011)

  43. What you must know to screen for a Padilla motion • Client’s status at time of plea • Client’s prior record • Charges to which client pleaded guilty • Whether client received immigration advice. If so, what was the advice?

  44. Other issues raised by Padilla

  45. Alien Warnings - 278 §29D motion

  46. Was the warning given as required by 278/29D? • “Presumption of regularity“ does not apply because G.L. c. 278, §29D explicitly states that absent a record that judicial warnings were given, the defendant is presumed not to have received them. • Commonwealth v. Grannum, 457 Mass. 128 (2010)

  47. Reconstructing the record

  48. “May have or has had consequences…” Defendant must prove that he faces more than a hypothetical risk that one or more of the enumerated consequences will occur. • Commonwealth v. Berthold, 441 Mass. 183 (2004) • Commonwealth v. Grannum, 457 Mass. 128 (2010)

  49. Suffering the consequences…

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