Effects of Criminal Convictions on Your Client’s Immigration Status

1. Effects of Criminal Convictions on Your Client’s Immigration Status Presentation to Virginia Beach Bar Association August 3, 2016 By Valverde & Rowell, P.C.

3. Legal Immigration Status • Look at this first • Consequences of criminal convictions will depend on the status of your client • How did you enter this country and what is your current immigration status?

4. Legal Immigration Status • U.S. Citizen – Don’t need to worry about immigration consequences • Lawful Permanent Resident • Non-Immigrant Visa • Temporary Protected Status (TPS) • Deferred Action for Childhood Arrivals (DACA) • Asylees

5. Who is a U.S. Citizen? • Born on U.S. soil or U.S. territories • 14th Amendment - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. • U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) • Naturalized • First have to be a lawful permanent resident for a certain amount of time

6. Who is a U.S. Citizen? • Naturalization • 5 years as a lawful permanent resident • 3 years if married to and living with a US citizen • Physically present in US for 2.5 years • 1.5 years if married to and living with a US citizen • Good moral character • 1 year of military service – residence and presence requirements are waived

7. Who is a U.S. Citizen? • Born to two U.S. citizen parent(s) abroad • One parent is a US citizen married to a non-US citizen • US citizen parent physically present 5 years in the US, at least two after the age of 14, before child’s birth

8. Who is a U.S. Citizen? • One parent is a US citizen, child born out of wedlock • USC Mother continuously present in the US for one year • USC Father –DNA test, financial support to U18, paternity is established through legitimation, acknowledgment, or court before 18th birthday • Child admitted as a lawful permanent resident and residing with USC parent • USC parent(s) naturalize while child is a lawful permanent resident while under 18

9. Lawful Permanent Residence • Aka “green card” • Obtained through a family or employer relationship • Also, asylees, victims of domestic abuse at hands of resident or US citizen spouse and Special Immigrant Juvenile Status

10. Non-Immigrant Visa • Various Types – B-2 Visitor, F-1 Student, H Temp. Worker, J Exchange Visitor, etc. • Visa itself does not grant lawful status • Only allows a person the privilege to present themselves to Customs to be admitted into the US • Expiration date on Visa does not equate to lawful status

12. I-94 • Expiration on I-94 determines authorized lawful status • Now available online at https://i94.cbp.dhs.gov/I94/consent.html

13. Temporary Protected Status • Nationals of El Salvador, Honduras, Nicaragua, Haiti, etc. who were present in the US during a natural disaster or civil war in the home country • Have to have registered during the initial registration period and renew TPS every re-registration period

14. Deferred Action for Childhood Arrivals “DACA” • Not a lawful status per se but are lawfully present in the US • Available for individuals who entered the US while under 16, before June 15, 2007, and have resided in the US continuously since then • In school or graduated from US high school

15. If Trump is elected . . . • Bye Bye DACA!

16. What if no lawful status? • Can be removed from the country regardless • However, can still look at consequences for future possible future applications

17. How can my client be prevented from obtaining lawful immigration status or how can it be taken away?

18. Inadmissibility • “Inadmissibility” and “removability” are technical terms in immigration law • Inadmissibility – think the legal grounds the government can use to deny your client a visa or entry into the U.S. • INA § 212; 8 USC § 1182

19. Inadmissibility • Trump’s proposed Muslim ban would be a new ground of inadmissibility

20. Removability • Legal grounds the government can deport or kick your client out of the U.S. after he/she has been legally admitted into the country • INA § 237; 8 USC § 1227

21. Inadmissibility v. Removability • Easier to establish inadmissibility • Conviction may not be required • Burden of proof is on the intending immigrant • More difficult to establish removability • Conviction is usually required • Burden of proof is on the government

22. Criminal convictions can make your client inadmissible or removable.

23. “Conviction” • A formal judgment of guilt by a court OR • If adjudication of guilt has been withheld (i.e. no judgment of conviction entered) there is • Guilty plea or plea of nolo contendere; • Admission of sufficient facts; OR • Judge or jury has found guilt; AND • Judge has ordered some kind of punishment, penalty, or restraint on liberty • INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A) • “some kind of punishment, penalty, or restraint” can be probation or paying a fine, even court costs • Convictions on appeal by right are not “convictions” because not final • Example conviction on appeal from General District Court to Circuit Court not a “conviction.”

24. Tips for Defense Attorneys • Deferred adjudications • Avoid pleading guilty or finding of guilty in the warrant/record. Otherwise will still be considered a “conviction” under immigration law. • Still may not be enough because First Offender provisions in Va. Code state: • “. . . if the facts found by the court would justify a finding of guilt . . .” • Examples: Va. Code § 18.2-251 (marijuana possession) and § 18.2-57.2 (domestic assault)

25. “Sentence” • Includes the period of incarceration or confinement ordered by a court regardless of any suspension in whole or in part. INA § 101(a)(48)(B); 8 U.S.C. § 1101(a)(48)(B).

26. Juvenile Convictions • Convictions of minors in juvenile and domestic relations court are not convictions for immigration purposes. Matter of Devison, 22 I&N Dec. 1622 (BIA 2000). • However, if juvenile transferred to adult court then it is a conviction.

27. Note: Sometimes Adverse Immigration Consequences Do Not Require Convictions • Some grounds of inadmissibility/removability do not require a “conviction” to trigger adverse immigration consequences: • Drug trafficking (i.e. drug dealing) • Drug abuser or drug addict • Prostitution • Violations of protective orders • False claim to U.S. Citizenship

28. Also… • Many immigration benefits are discretionary • The government can still use its discretion to deny immigration benefits

29. How Does ICE Pick Up My Client?

30. Immigration & Customs Enforcement • How does ICE take a non-citizen into custody? • ICE issues detainer on non-citizen in state or federal prison • Reporting to probation officer (sometimes) • Non-citizen files an immigration application • Reentering the country • Local police stops and arrests

31. Virginia Code § 19.2-83.2 • Whenever any person is taken into custody at any jail, the sheriff or other officer in charge of such facility shall • inquire as to whether the person (i) was born in a country other than the United States, and (ii) is a citizen of a country other than the United States.

32. Virginia Code § 19.2-83.2 • The sheriff or other officer in charge of such facility shall make an immigration alien query to the Law Enforcement Support Center of ICE for any person who • (i) was born in a country other than the United States, and (ii) is a citizen of a country other than the United States, or for whom the answer to (i) or (ii) is unknown.

33. ICE Detainers Explained • 8 C.F.R. § 287.7(d) • Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 HOURS, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.

34. ICE Detainers

35. ICE Detainer • Under 8 C.F.R. § 287.7(d), local jail cannot hold individual under ICE detainer more than 48 hours after its authority to detain has terminated, not counting weekends and holidays. • 48 hours is triggered when person posts bond or completes case/sentence. • Detention beyond the 48 hours is unlawful • Habeas petition • Liability false imprisonment

36. ICE Detainer Policy • 12/21/2012 Memo – ICE should issue detainer only when • Felony offense • Three misdemeanors • Outstanding order of removal • DUI, violence, abuse, controlled substance, fleeing the scene of accident, firearm, other significant threat to public safety . . .

37. Crimmigration Consequences • Deportation • Mandatory Detention by Immigration with no bond • Ineligibility for U.S. citizenship • Ineligibility for a “green card” and immigrant and non-immigrant visas • Eligibility for relief from deportation or waivers • Possible lifetime separation from family and friends

38. Will my client be released from Immigration Custody?

39. What happens to my client after ICE takes him into custody?

40. Mandatory Immigration Detention Under INA § 236(c) • Immigration Judge cannot grant bond if defendant has been convicted of certain crimes if inadmissible or deportable for • Controlled substance violations • Crimes involving moral turpitude • Aggravated felonies • Firearms offenses

41. Drug Offenses • Almost any drug offense makes a person inadmissible or removable, regardless of sentence • For removability, exception for simple possession 30 grams or less of marijuana • For inadmissibility (someone applying for a visa abroad or applying for permanent residence in the U.S.), a conviction is not necessary • Can be an admission that he/she has committed an act that is punishable under any law relating to a controlled substance. INA § 212(a)(2)(A)(i)(II). • Officer can have “reason to believe” that non-citizen has been involved in drug trafficking. INA § 212(a)(2)(C)(i).

42. Drug Offenses • For removability, any non-citizen who after admission is convicted of violating (or conspiracy or attempt to violate) any law relating to a “controlled substance.” INA § 237(a)(2)(B)(i). • Even possession of drug paraphernalia could be a crime relating to a controlled substance if relates to a substance listed in the federal schedule. See Mellouli v. Lynch, ___ U.S. ____, No. 13-1034 (June 1, 2015); Matter of Pacheco-Ventura (unpublished BIA decision 2003).

43. Drug Offenses • Not removable for a drug conviction if only a single offense for marijuana possession of 30 grams or less. INA § 237(a)(2)(B)(i). • Tip: Try to get the amount in the record if less than 30 grams. • Not inadmissible or removable if conviction does not relate to a federally “controlled substance” as defined in 18 U.S.C. § 102. Mellouliv. Lynch, ___ U.S. ____, No. 13-1034 (June 1, 2015); Matter of Paulus, 11 I&N Dec. 211 (BIA 1965).

44. Aggravated Felonies • Don’t let the name fool you – a misdemeanor under state law can still be an aggravated felony. • Not all aggravated felonies have one year sentence triggers • Can be “kiss of death” for a non-citizen • Only applies to removability – non-citizens who have been inspected and entered under a legal visa • INA § 101(a)(43) defines 19 types of aggravated felonies

45. Aggravated Felonies • Rape, murder, and sexual abuse of a minor • Sexual abuse of a minor does not require contact. Indecent exposure enough. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999). • Solicitation of minor. Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. 2005) (Illinois conviction of misdemeanor solicitation to engage in a sexual act is sexual abuse of a minor where criminal complaint (and no other document) showed victim under the age of 18) • Solicitation of undercover adult officer posing as child on internet. Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. 2005)

46. Aggravated Felonies • Illicit trafficking in a controlled substance, including a “drug trafficking crime” defined in 18 USC § 924(c) • Any drug conviction where the statute has an element of sale or distribution, regardless of sentence could be an aggravated felony • Any federal conviction for possession that is a felony • BUT state felony possession that would not be a felony under federal law NOT an ag felon, Lopez v. Gonzalez, 125 S. Ct. 625 (2006) unless for flunitrazepam (date rape) or >5g of crack. • A second possession conviction may be an ag felony if it would be a felony under federal statute as repeat offender • PWID marijuana not ag felony if statute covers sharing of a small amount of marijuana with no renumeration, e.g. Va. Code § 18.2-248.1(a). Moncreiffe v. Holder, 133 S.Ct. 1678 (2013).

47. Aggravated Felonies • Crime of violence and sentenced to at least one year imprisonment • Defined in 18 USC § 16 • (a) Element of the use, attempted use, or threatened use of force against person or property or • (b) A felony that involved a substantial risk that force will be used in commission of offense • Must involve active force and a higher degree of intent than mere negligent or accidental conduct. Leocal v. Ashcroft, 543 U.S. 1 (2004) • Look at statute of conviction for required mental state

48. Aggravated Felonies • Not Crimes of Violence • Simple involuntary manslaughter under Va. Code § 18.2-36. Bejerano-Urrutia v. Gonzalez, 413 F.3d 444 (4th Cir. 2005). • DUI and DUI causing bodily injury. Leocal v. Ashcroft. • Assault recklessly causing serious physical injury by means of deadly weapon or dangerous instrument. Garcia v. Gonzalez, (4th Cir. 2006). • Va. domestic violence not categorically a COV. Matter of Velasquez, 25 I&N Dec., 278 (2010) • Crimes of Violence • Misdemeanor sexual battery under § 18.2-67.4. Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000).

49. Aggravated Felonies • Theft or burglary offense for which term of imprisonment at least one year • Fourth Circuit said Virginia grand larceny conviction is not an aggravated felony theft offense. Omargharib v Holder, 775 F.3d 192 (2014). Note: It can still be a CIMT. • Child pornography • Owning/managing prostitution business/human trafficking • Obstruction of justice/perjury • Attempt or conspiracy to commit any of the enumerated aggravated felonies • AND SEVERAL MORE . . .

50. Crimes Involving Moral Turpitude (“CIMTs”) • For inadmissibility (person applying for visa outside the U.S. or permanent residence in the U.S.), one CIMT or an attempt or conspiracy to commit a CIMT • Exceptions: • Crime committed under 18 and 5 years (from release from confinement) prior to date of application or admission • Max penalty of crime one year or less and actually sentenced to 6 months or less (“petty offense exception”) • For removability, • One CIMT within 5 years of admission and sentence one year or more may be imposed • Two CIMTs not arising out of a single scheme of criminal misconduct regardless of sentence or imprisonment