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Problems facing Non-Citizens in Court

Problems facing Non-Citizens in Court. Presented by: Mira Mdivani Angela Williams Stephen Blower. Part I: Cr-immigration: How to Comply with Padilla without Losing Your Mind!. What does Padilla Say?. Padilla was an LPR Veteran Many many years in US

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Problems facing Non-Citizens in Court

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  1. Problems facing Non-Citizens in Court Presented by: Mira Mdivani Angela Williams Stephen Blower

  2. Part I: Cr-immigration: How to Comply with Padilla without Losing Your Mind!

  3. What does Padilla Say? • Padilla was an LPR • Veteran • Many many years in US • Charged with possession with intent to distribute a boat load of pot • Lawyer advised (incorrectly) that since he was a vet and had been here so long, he would not have any problems • Main opinion: When the consequence is clear the advice needs to be equally clear. When the consequence is less clear one only need advise that there may be consequences • Concurrence: Wanted to limit it to affirmative mis-advice • Dissent: This is a collateral consequence, therefore even wrong advice is not IAC

  4. Clear Consequences…(sort of) • Aggravated Felony (8 USC § 1101(a)(43)) • Inadmissible Crime (INA § 212(a)(2)(A)) (Cant get into the US) • Deportable Crime (INA § 237(a)(2)(A)) (Kicks you out)

  5. Step 1: Are you a US Citizen?

  6. Are you a Naturalized USC?

  7. Step 2: As Clear as it Gets • Is it an Aggravated felony? § 101 (43)(a) • Is it in the inadmissibility section? § 212(a)(2)(A) • Is is in the Deportation section?§ 237(a)(2)(A) • If it looks like a duck…

  8. Warnings Agg Felon: This conviction will…

  9. Warnings for inadmissibility

  10. Warnings for Deportability

  11. What is not Clear: CIMTs and COV • CIMTs= Crimes involving moral turpitude • Extremely difficult to determine; depends on wording of statute • Base, vile and depraved and violates acceptable moral standards. • More than negligence • Must have specific intent (maybe reckless) • COV= Crimes of violence • Can avoid this if sentence is less than a year. • If not, if it is in the ball park of force or violence or something from which violence is likely to occur, maybe a problem

  12. CLEAR AS MUD Warnings: There may be serious immigrationconsequences to this conviction, you should seek advice of an immigration attorney

  13. Other Cr-immigration Problems • Drug Convictions: Only exception for less than 30g of MJ= Must state the amount and must state the drug in sentencing • Any other drug = BAD • Any mention of trafficking= Bad • In sentencing: the wording of the statement of facts and what is said on the record is important • Sentences • SIS, SES, Expunged records, No Contest, Alfrord Pleas, juvenile adjudications, setting aside the guilty plea or vacating the plea all can cause problems • Diversions or pre-trial adjudications can cause problems if you admit to the essential elements of the crime • Actual times served usually doesn’t matter it is the sentence imposed that is important

  14. One more thing….. Chaidez vs. US (no. 11-820 Feb. 20, 2013) Padilla not Retroactive

  15. Part II: Civil CourtThe Landmines Continue

  16. Non-Criminal Issues for Non Citizens in Court • Orders of protection (or violations of them) & Civil Contempt • Divorce or annulment : Before petition is approved, continued obligation under affidavit of support • Child Custody and International Kidnapping • Child Support failure to pay child support • Abused abandoned or neglected undocumented kids • Guardianships

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