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Immigration Consequences of Criminal Offenses

Immigration Consequences of Criminal Offenses. Unit 2: Immigration Consequences of Criminal Adjudications. Possible Immigration Consequences of a Criminal Conviction in Texas.

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Immigration Consequences of Criminal Offenses

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  1. Immigration Consequences of Criminal Offenses Unit 2: Immigration Consequences of Criminal Adjudications

  2. Possible Immigration Consequences of a Criminal Conviction in Texas • DEPORTATION: Forcible removal from the United States and the imposition of a legal bar from returning to the US for a certain period of time (INA §237(a) [8 USC 1227 (a)]). • INADMISSABILITY: Denial of re-entry to the United States attempting to return to the US from abroad (INA §212(a) [8 USC 1182]). • DETENTION: Detention in federal custody pending a deportation hearing (INA §236 [8 USC 1226]).

  3. Possible Immigration Consequences of a Criminal Conviction in Texas • While any or all of the three consequences noted on the slide before can flow from criminal activity by a client who is a non-citizen, perhaps the consequence that most concerns criminal defense lawyers is deportation. • Most crime-related deportation grounds requires a “conviction” to trigger a basis for deportation, raising the question:

  4. Possible Immigration Consequences of a Criminal Conviction in Texas WHAT CONSTITUTES A “CONVICTION” FOR IMMIGRATION PURPOSES?

  5. What is a “Conviction” for Immigration Purposes? Under the INA, a conviction exists where there has been a formal adjudication of guilt entered by a court or if adjudication has been deferred, where all of the following elements are present:

  6. What is a “Conviction” for Immigration Purposes? • A judge or jury has found the alien guilty, or the person entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and

  7. What is a “Conviction” for Immigration Purposes? (2) The judge has ordered some form of punishment, penalty or restraint on the person’s liberty to be imposed. INA § 101(a)(48)(A).

  8. What is a “Conviction” for Immigration Purposes? JUDGEMENT OF GUILT – PLEA OR VERDICT (INCLUDING PLEA OF NOLO CONTENDERE): YES INA § 101(a)(48) [8 U.S.C 1101(a)(48)

  9. What is a “Conviction” for Immigration Purposes? JUDGEMENT OF GUILT – APPEAL PENDING: NO Matter of Devison, 22 I&N Dec. 1362 (BIA 2000)

  10. What is a “Conviction” for Immigration Purposes? DEFERRED ADJUDICATION WITH PENALTY: YES Matter of Punu, 22 I&A Dec. 224 (BIA 1998)

  11. What is a “Conviction” for Immigration Purposes? DEFERRED ADJUDICATION WITH NO PENALTY IMPOSED: NO Provided the court does not order some form of punishment. Payment of court costs would not be considered punishment. See Mary E. Kramer, Immigration Consequences of Criminal Activity, A guide to Representing Foreign-Born Defendants, 2nd Edition, American Immigration Lawyers Association (2005), at 47.

  12. What is a “Conviction” for Immigration Purposes? DISMISSAL NO

  13. What is a “Conviction” for Immigration Purposes? PRETRIAL DIVERSION (AKA “DEFERRED PROSECUTION” or “PLEA IN ABEYANCE”: NO Pretrial diversion is not a conviction for immigration purposes as long as the process of securing pretrial diversion does not satisfy both prongs of the definition of conviction set forth in INA § 101(a)(48)(i) and (ii), [8 U.S.C. 1101(a)(48)(i) and (ii)]

  14. What is a “Conviction” for Immigration Purposes? ADMISSIONS TO THE PROSECUTOR: NO See Mary E. Kramer, Immigration Consequences of Criminal Activity, A guide to Representing Foreign-Born Defendants, 2nd Edition, American Immigration Lawyers Association (2005), at 48.

  15. What is a “Conviction” for Immigration Purposes? EXPUNCTION AND RECORD SEALING: YES Matter of Roldan, 22 I&N Dec. 224 (BIA 1999)

  16. What is a “Conviction” for Immigration Purposes? VACATION OF A CONVICTION (ON THE MERITS): NO Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000)

  17. What is a “Conviction” for Immigration Purposes? VACATION SOLELY RELATED TO IMMIGRATION: YES U.S. v. Reyes,945 F.2d 862 (5th Cir 1991)

  18. What is a “Conviction” for Immigration Purposes? JUVENILE DELINQUENCY DISPOSITION: NO Matter of Devison, 22 I&N Dec. 1362 (BIA 2000)

  19. What is a “Conviction” for Immigration Purposes? SUSPENSION OF SENTENCE: YES INA 101(a)(48)(B) [8 USC 1101(a)(48)(B)]

  20. Damage Control • Avoid Identification as Immigrant Subject to Detainer • Post bail as quickly as possible • Avoid a sentence to jail • Avoid final conviction if this is the only ground for deportation (except 1st, 5th, 7th Circuits may consider convictions on direct appeal final) • Avoid disclosure of nationality, immigration status or place of birth, especially during DHS interviews in jail or prison

  21. Damage Control • DHS Interviews in Jails & Prisons: Advise Clients of Dos and Don’ts • Don’t say anything. • Don’t sign anything. • Don’t lie. • If you feel that you have to say something, only say, “I want to talk to my lawyer.”

  22. Use the Quick Reference Chart Quick Reference Chart for Immigration Consequences: • Look up offense by code section • Look to Chart to identify immigration consequences • Avoid Aggravated Felonies, Crimes Relating to Controlled Substances, Crimes Involving Moral Turpitude, and Crimes Involving Domestic Violence, Child Abuse, Fraud, Firearms, Etc.

  23. Resource Links – Where to Go for Help • National Legal Aid & Defender Association • www.nlada.org • Defending Immigrants Partnership • www.defendingimmigrants.org • NLG National Immigrants Project • www.nationalimmigrationproject.org • NYSDA Immigrant Defense Project • www.immigrantdefenseproject.org • ILGC • www.ilrc.org

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