Federal Criminal and Immigration Law Seminar

1. Federal Criminal and Immigration Law Seminar March 11, 2013 Knoxville, Tennessee Sarah Rose Weinman www.immigrantjustice.org

2. National Immigrant Justice Center The National Immigrant Justice Center (NIJC), a program of Heartland Alliance, promotes human rights and access to justice for immigrants, refugees, and asylum seekers through legal services, policy reform, impact litigation, and public education. Throughout its 30-year history, NIJC has been unique in blending individual client advocacy with broad-based systemic change. NIJC serves more than 8,000 immigrants annually with the support of a professional legal staff and a network of over 1,000 pro bono attorneys.

3. NIJC’s Defenders Initiative NIJC’s Defenders Initiative provides training and free legal consultations to criminal defense attorneys regarding the immigration consequences of crimes.

4. Contacting NIJC’s Defenders Initiative Email: defenders@heartlandalliance.org Call: 312-660-1610 Visit our webpage: http://www.immigrantjustice.org/programs/defenders-initiative

5. AGENDA: • Padilla v. Kentucky and the Role of the Criminal Defense Attorney • Major Consequences of Criminal Convictions for Immigrants • Crimes of Inadmissibility and Crimes of Deportability • Crimes and Eligibility for Relief from Removal Under Immigration Law • Practice Pointers • Special Considerations in Illegal Reentry Cases

6. An Initial Note:Why Correct Advice by Defense Counsel Is Vital to Protecting Noncitizens’ Rights No right to court-appointed counsel in removal proceedings if indigent. Many non-citizens appear pro se in removal proceedings.

7. I. PADILLA V. KENTUCKY AND THE ROLE OF THE CRIMINAL DEFENSE ATTORNEY

8. Padilla v. Kentucky130 S. Ct. 1473 (2010) BACKGROUND: Many convictions can trigger severe immigration consequences, including permanent banishment from the United States and separation from family No right to court-appointed counsel in removal proceedings if indigent. Many non-citizens appear pro se in removal proceedings.

9. Padilla v. Kentucky130 S. Ct. 1473 (2010) FACTS: Honduran native Pleaded guilty to transporting marijuana ISSUE: Does defense counsel have an obligation to advise that the plea could result in removal?

10. Padilla v. Kentucky130 S. Ct. 1473 (2010) HOLDING: Counsel has a 6th Am. duty to advise non-citizen clients of the immigration consequences of pleas Where deportation consequences are clear: must provide correct affirmative advice Where consequences are unclear:must advise on risk of deportation

11. Padilla v. Kentucky130 S. Ct. 1473 (2010) HOLDING, con’t: Deportation is an integral part of the penalty, not a collateral consequence

12. Putting Padilla Into Practice: What does it mean for you? Engage in informed consideration of immigration consequences during plea-bargaining Consider client’s priorities in a new way: chance to stay in U.S. vs. shorter sentence Must advise! Can’t just tell client, “That ain’t my bailiwick; consult an immigration lawyer.”

13. Putting Padilla Into Practice: What does it mean for you? Work with the prosecution to consider: Alternate charges Alternate sentences Construction of plea/diversion agreements

14. Putting Padilla Into Practice: What does it mean for you? Sanitize the record of conviction and sentencing record as much as possible to avoid language and admissions that could make the conviction a deportable one.

15. II. Major Consequences of Criminal Convictions for Immigrants

16. Three Major Consequences of Criminal Convictions Removal (deportation) from the United States Eligibility for an immigration bond, resulting in “mandatory custody” during removal proceedings Eligibility for immigration waivers of removable crimes or other forms of relief from removal

17. Definition of Conviction in Immigration Law, 8 USC 1101(a)(43)(A) Judge/jury finds noncitizen guilty; or noncitizen enters a plea of guilty or nolo contendere; or noncitizen admits sufficient facts to warrant a finding of guilt AND Judge orders some form of punishment, penalty, or restraint on liberty (fees, diversion, etc.)

18. Evidence of Conviction For evidence of “conviction”, the IJ can examine record of conviction The record of conviction Indictment/information Plea agreement Plea transcript Jury instructions Judgment of conviction In cases of fraud or sexual offenses, sentencing record and “other probative evidence”

19. II(A).CRIMES OF INADMISSIBLITY AND CRIMES OF DEPORTABILITY

20. Removal from the United States A non-citizen may be removed from the United States when charged with inadmissibility pursuant to 8 U.S.C. § 1182 or deportability pursuant to 8 U.S.C. § 1227.

21. Inadmissibility vs. Deportability: Why Knowing Your Client’s Status Means Everything! Removab l e ? NotAdmitted (entered w/o papers) Trigger criminal grounds of inadmissibility under 8 USC 1182(a)(2)? Non-citizen Admitted (LPR or entered in some lawful status) Trigger criminal grounds of deportability under 8 USC 1227(a)(2)?

22. Criminal Grounds of Inadmissibility Crimes Involving Moral Turpitude (CIMTs) Controlled Substance Offenses Multiple crimes Prostitution

23. Criminal Grounds of Inadmissibility8 U.S.C. § 1182(a)(2) More specifically… Admissions to or Conviction of a Crime Involving Moral Turpitude (CIMT), 8 U.S.C. § 1182(a)(2)(A)(i)(I) Admissions to or Conviction of Controlled Substance Violations, 8 U.S.C. § 1182(a)(2)(A)(i)(II) Conviction of 2 or more Crimes with Aggregate Sentence of 5 Years or more, 8 U.S.C. § 1182(a)(2)(B) Prostitution (within 10 years of admission or adjustment of status) and commercialized vice, 8 U.S.C. § 1182(a)(2)(D)

24. Criminal Grounds of Deportability Crimes Involving Moral Turpitude (CIMTs) Aggravated Felonies Controlled Substance Offenses Firearms Offenses Domestic Violence Offenses

25. Criminal Grounds of Deportability8 U.S.C. § 1227(a)(2) More specifically… Single Crime Involving Moral Turpitude (CIMT), 8 U.S.C. § 1227(a)(2)(A)(i): Conviction for a crime of moral turpitude; Committed within 5 years after the day of admission; Punishable by a sentence of a year or longer. Multiple CIMTs, 8 U.S.C. § 1227(a)(2)(A)(ii) Conviction of two or more CIMTs; Not arising out a single scheme; Can occur any time after admission.

26. Criminal Grounds of Deportability8 U.S.C. § 1227(a)(2), con’t Aggravated Felonies. 8 U.S.C. § 1227(a)(2)(A)(iii), defined by 8 U.S.C. § 1101(a)(43) Conviction for a Controlled Substance Offense, except for a single possession of marijuana less than 30 grams. 8 U.S.C. § 1227(a)(2)(B)(i) Conviction for Firearms Offenses. 8 U.S.C. § 1227(a)(2)(C) Conviction for a Crime Involving Domestic Violence, Stalking, Child Abuse, Violation of Orders of Protection. 8 U.S.C. §1227 (a)(2)(E)

27. CRIMES INVOLVING MORAL TURPITUDE

28. Crimes Involving Moral Turpitude (CIMTs) No statutory definition of a CIMT. Defined by case law (ever-evolving)

29. Crimes Involving Moral Turpitude (CIMTs) Rules of thumb on what constitutes a CIMT from case law: Offenses involving: Types of offenses: Deceit Theft Fraud Actual/threatened violence, serious bodily harm Harm to property Mensrea: intent, knowing, reckless Note: for physical violence offenses, the level of harm and level of mensrea are inversely proportional (the more harm, the less intent necessary)

30. CIMT Examples • Not CIMTs (generally): • Domestic violence (if no bodily injury) • Simple Battery • Possession of a Controlled Substance • Possession of a Firearm • Driving Under the Influence • CIMTs: • Robbery • Theft • Fraud • Bribery • Aggravated assault • Child abuse • Rape • Arson

31. CIMT Petty Offense Exception If a non-citizen is convicted of a single misdemeanor CIMT offense with 6 months or less of imposed jail time, the non-citizen may avoid deportation or at least mayqualify for immigration relief. 8 U.S.C. § 1182(a)(2)(A)(ii).

32. Tip:Avoiding a conviction for immigration purposes Avoid any unnecessary admission of guilt. Avoid offenses with “intent to defraud / steal” or “intent to harm” language Avoid offenses with language about “bodily harm”

33. AGGRAVATED FELONIES

34. Aggravated Felonies Defined by 8 U.S.C. § 1101(a)(43). Statute contains a laundry list of offenses that are deemed “aggravated felonies.”

35. Categories of Aggravated Felonies 3 ways to categorize aggravated felonies: Charge-Based Aggravated Felonies Sentence-Based Aggravated Felonies Miscellaneous Aggravated Felonies

36. Charge-Based Aggravated Felonies Convictions that make a non-citizen deportable if the crime meets the definition regardless of sentence. Note: Misdemeanor offenses, such as sexual abuse of a minor, can constitute an aggravated felony without being a felony under state/federal law.

37. Charge-Based Aggravated Felonies (con’t) Examples charge-based aggravated felonies: Murder Rape Sexual Abuse of a Minor Non-Citizen Smuggling Drug Trafficking Many Firearms Offenses Illegal Re-entry [after deportation on the basis of an aggravated felony] Attempt or conspiracy to commit any of the above

38. Charge-Based Aggravated Felonies (con’t):Special note on Drug Trafficking Any drug offense that includes elements of buying, selling, manufacturing or delivery will be an “aggravated felony” Simple possession drug offenses are not generally aggravated felonies Still deportable offenses But waivers or other relief may be available, unlike with aggravated felonies .

39. Sentence-Based Aggravated Felonies Offenses that are aggravated felonies if a sentence of one year or more is imposed

40. Sentence-Based Aggravated Felonies (con’t) Examples of sentence-based aggravated felonies (requiring imposition of a sentence of one year or more): Theft Burglary Receipt of stolen property Bribery Counterfeiting Forgery Obstruction of Justice Perjury Crime of violence

41. Sentence-Based Aggravated Felonies (con’t):Special note on crimes of violence “Crime of violence” defined at 8 U.S.C. § 16. Immigration case law on what constitutes a COV is constantly evolving

42. Sentence-Based Aggravated Felonies (con’t): TIP to Avoid a Sentence-Based Aggravated Felony: Plead to a sentence of less than 1 year For crimes of violence, plead to a negligence offense. See Leocal v. Ashcroft, 543 U.S. 1, (2004) (requiring at least a mental state of recklessness for an offense to be a crime of violence under 18 U.S.C. §16). .

43. Sentence-Based Aggravated Felonies (con’t): NOTE: Even if you are able to obtain a sentence of less than a year, thus avoiding an aggravated felony, your client’s conviction may still be considered a CIMT. However, more defenses exist for people convicted of CIMTs than of aggravated felonies. 43

44. Miscellaneous Aggravated Felonies Fraud or Deceit where the Loss to Victim Exceeds $10,000 Offense Relating to Owning, Managing a Prostitution Business Offense Relating to Peonage, Slavery, Involuntary Servitude and the Trafficking in Persons

45. Miscellaneous Aggravated Felonies, con’t TIP for avoiding a fraud-based aggravated felony Agree to a loss amount of less than $10,000 Include separate counts where each count is less than $10,000 but aggregate is more than $10,000; plead to top count only and seal remainder of records Note that restitution and sentencing info can be considered to prove total amount of loss 45

46. Aggravated Felonies:A Closing Caveat Attempt and Conspiracy to commit any of the enumerated aggravated felonies are treated the same as if the person was convicted of the aggravated felony

47. CIMTs and AggFels are Not the Only Thing to Worry About… Crimes of inadmissibility include: CIMTs Controlled substance offenses Multiple crimes Prostitution Crimes of Deportability include: Multiple CIMTs Aggravated felonies Controlled substance offenses Firearms offenses DV, stalking, child abuse

48. CIMTs and AggFels are Not the Only Thing to Worry About… Special note on controlled substance offenses (inadmissibility and deportability) Special note on firearms offenses (ground of deportability only)

49. Controlled Substance Offenses:Inadmissibility v. Deportability Grounds Any state or federal conviction relating to a controlled substance as defined at 21 U.S.C. § 802 will render a non-citizen deportable: Exception: single, simple possession of 30 grams or less of marijuana Any state or federal conviction for a controlled substance violation will render a person inadmissible, including possession of less than 30 grams of marijuana.

50. Controlled Substance Offenses:LPRs v. Non-LPRs LPRs with non-trafficking drug convictions: Waiver available if simple possession only (non-trafficking) Multiple possession offenses will not disqualify LPR from waiver so long as LPR is not charged as a recidivist Non-LPRs with non-trafficking drug offenses: Waiver available if offense was for possession of 30 grams or less of marijuana and removal would result in extreme hardship to a United States citizen or LPR immediate relative .