Immigration Process & Criminal Convictions Overview

1. WARNING: The information contained in this presentation is the author’s interpretations and does not necessarily represent the position of the Department of Homeland Security. Inasmuch as immigration laws are complex, fact-specific, and ever-changing, practitioners are advised to research and apply the most current laws, regulations, and policies relevant to this subject matter.

2. Department of Homeland SecurityOffice of the Chief Counsel The Immigration Process and Consequences of Criminal Convictions Justin Howard, Assistant Chief Counsel

3. Office of the Principal Legal Advisor (OPLA) • OPLA provides the legal advice, training, and services required to support the ICE mission while defending the immigration laws of the United States in administrative and Federal Courts • The Chicago Office of the Chief Counsel, along with its sub-office in Kansas City, Missouri, oversees immigration and customs-related litigation in Illinois, Indiana, Kentucky, Missouri, Kansas, and Wisconsin • Provides legal advice to ICE officers and agents • Litigates cases before the immigration court and handles appeals to the Board of Immigration Appeals

4. United States Citizenship and Immigration Services (USCIS) Provides immigration benefits: visas, green cards, naturalization Customs and Border Protection Secures the border, facilitates trade and travel Immigration and Customs Enforcement (ICE) Protects the security of the American people and the homeland by vigilantly enforcing the nation’s immigration and customs laws Litigates cases before the immigration courts Department of Homeland Security

5. ICE Components Enforcement and Removal Operations Homeland Security Investigations

6. Top ICE Initiatives • Enforcement and Removal • Child Exploitation • Human Smuggling and Trafficking • Human Rights Violators & War Crimes

7. Top ICE Initiatives, Cont’d • Counterterrorism and Criminal Exploitation • Operation Community Shield (Transnational Gangs) • Fugitive Operations • Criminal Alien Program • Cultural Property, Art, and Antiquities Investigations • Intellectual Property Rights • Cybercrimes • Mass-Marketing Fraud • Foreign Corruption Investigations • Document and Benefit Fraud • Money Laundering and Bulk Cash Smuggling

8. Administrative vs. Criminal • Differentiate between civil administrative proceedings and criminal cases • ICE handles both • Administrative cases are processed through ICE or DOJ in Immigration Court • Criminal cases are prosecuted in State and Federal courts

9. Kansas City Immigration Court opened September 29, 2008 Hears cases involving non-detained individuals as well as individuals detained in ICE custody in Kansas City, Springfield, St. Louis, and Wichita Kansas City Immigration Court

10. Wichita, KS Kansas City, MO Springfield, MO St. Louis, MO ICE Offices in Kansas and Missouri

11. EOIR RemovalProceedings Process Alien Appeal to Federal Court DHS Initiates Action DHS, Alien or Both Appeal to BIA Notice to Appear In Court Immigration Judge Decision Master Calendar Hearing Individual Merits Hearing Immigration Judge Decision Relief Termination of Proceedings Removal / Deportation Failure to Depart Voluntary Departure Removal / Deportation 11

12. Removal proceedings begin with the service of a Notice to Appear (“NTA”) on an alien by: An Immigration Enforcement Agent (“IEA”) Special Agent with Homeland Security Investigations (“HSI”); Customs and Border Patrol (“CBP”) United States Citizenship and Immigration Services (“USCIS”) The NTA is then filed with the Immigration Court Immigration 101

13. The NTA sets forth the reasons why the alien is removable from the United States Immigration proceedings are civil in nature. The alien has a right to an attorney, but he has to obtain one at his own expense. No attorneys are appointed to represent aliens in Immigration proceedings, even if they are detained Immigration 101

14. DHS or the alien can appeal a decision of an Immigration Judge The appeal goes to the Board of Immigration Appeals in Falls Church, VA If a party disagrees with the Board’s decision, they may file a Petition for Review in the Federal Circuit Court of Appeals that has jurisdiction over the Immigration Court Immigration 101

15. An alien, generally speaking, is anyone who is not a citizen of the U.S. There are 3 categories of aliens: Aliens who are Lawful Permanent Residents (green card holders); Who were admitted to the U.S. as non-immigrants (students, temporary visitors, or workers); or Aliens who have entered without being inspected or admitted What is an alien?

16. Every review of a charge begins with the question: how did the alien get here? The answer to this question determines what section of the Immigration and Nationality Act is used to charge the alien EWI – Enter Without Inspection; This is the person that crosses the border illegally Least amount of protections available If charged with an aggravated felony, he/she is administratively removed without going through the court process Types of Status

17. Admitted F1 visa – student B2 visa – vacationing visitor (usually 6 months) H1/H2 visa – temporary workers J1/J2 – graduate assistants and other types of educational type scholars SAW – seasonal agricultural workers F1, B2, H1/2 – Can be removed administratively without going before the Court if alien commits an aggravated felony Types of Status

18. LPR – legal permanent resident Has a “green card,” I-551 Right to be in the U.S. ALWAYS entitled to a proceeding in immigration court Types of Status

19. The alien’s status matters because it determines what relief from removal is available and what grounds of removability apply to the alien Also determines which party has the burden of proof EWIs – Immigration charges are found in INA § 212 (8 USC § 1182); Inadmissible Aliens Admitted (including LPRs) – Immigration charges are found in INA § 237 (8 USC § 1227); Deportable aliens Why does the alien’s status matter?

20. Illegal Any contact can lead to removal Admitted Removability depends upon the crime or, in some cases, a violation of the terms of the alien’s admission Rationale – invitation vs. trespass Why does the alien’s status matter?

21. The alien must either be an EWI, violate the terms of the status in which he/she was admitted, and/or have been convicted of a qualifying criminal offense Not all convictions render an alien removable Removable?

22. Used to charge EWIs Present without admission or parole Controlled substance offenses Crimes involving moral turpitude (CIMT) Unless misdemeanor and sentence less than 6 months then falls within petty offense exception Two or more convictions with aggregate sentence of five years or more Prostitution Money laundering INA Section 212Inadmissible Offenses

23. Used to charge aliens admitted to the U.S. and LPRs Grounds of removability are different than under INA § 212 INA Section 237Deportable Offenses

24. CIMTs –Crime must be committed within 5 years of admission Convicted of a crime for which a sentence of one year or longer may be imposed 2 or more CIMTs Can be committed at any time Does not matter what the sentence range is INA Section 237

25. Aggravated felonies Not a category under INA § 212 Controlled substances Convicted of any law relating to a controlled substance other than a single offense involving possession for one’s own use of 30 grams or less of marijuana Firearms offense Not a category under INA § 212 INA Section 237

26. Domestic Violence Offenses Includes crimes of domestic violence, stalking, or violation of protection order, crimes against children “Crime of domestic violence” – any crime of violence (as defined in 18 USC § 16) against a person committed by a current or former spouse, by an individual with whom the person shares as a child in common, by an individual who is cohabitating or has cohabitated with the person as a spouse INA Section 237

27. Aggravated Felonies Crimes Involving Moral Turpitude Drug Crimes Domestic Violence Categories of Crimes

28. A formal judgment of guilt of the alien entered by a court , or if adjudication of guilt is withheld, where: A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo 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 INA § 101(a)(48)(A); 8 USC § 1101 (a)(48)(A) Includes suspended sentences under 8 USC § 1101(a)(48)(B) Conviction Defined

29. Historically, a conviction was not considered final until the criminal appeals process is exhausted. SeePino v. Landon, 349 U.S. 901 (1955). But note current definition of conviction omits appeal language Effects on your cases? Finality of a Conviction

30. Effects of State Action • No effect is given if a court vacates a conviction for reasons solely related to immigration hardships. • Effect is given to convictions reversed on direct appeal or vacated on constitutional grounds

31. The most serious crimes pursuant to the Act. Found in INA § 101(a)(43); 8 USC § 1101(a)(43) Individuals convicted of aggravated felonies are generally not eligible for any form of relief from removal other than Withholding of Removal or Deferral of Removal under Article 3 of the Convention Against Torture Some misdemeanors will qualify as an aggravated felony Aggravated Felonies

32. Most difficult category to determine Not defined anywhere in the Act 8th Circuit has defined as “an act of baseness, vileness, or depravity in the private and social duties” that people owe each other or “society in general, and is contrary to the accepted rule of right and duty.” Franklin v. INS, 72 F.3d 571, 573 (8th Cir. 1995). Stated a different way, CIMTs involve conduct that is base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general. Lateef v. Dep’t of Homeland Security, 592 F.3d 926, 929 (8th Cir. 2010) (internal quotations omitted). Crimes Involving Moral Turpitude (CIMT)

33. Requires: Mens Rea and Reprehensible conduct Crimes Involving Moral Turpitude

34. Mental state Intentional Knowing Reckless Crimes Involving Moral Turpitude

35. General Classes of Crimes Crimes Against Children Endangering the Welfare of a Child Sex Crimes Stealing/Theft offenses Burglary Fraud/Forgery Passing Bad Checks Possession of Child Pornography Crimes Involving Moral Turpitude

36. General Classes of Crimes Prostitution related offenses Murder Manslaughter Involuntary Manslaughter under 21-5405 may constitute a CIMT Vehicular Homicide under KSA 21-5406 is not a CIMT Crimes Involving Moral Turpitude

37. There is no Domestic Violence Category of Offense under Section 212 So, in order for a person who EWI to be removable for a criminal conviction for a DV offense, it would have to qualify as a CIMT AND Not fall within the petty offense exception Domestic Violence Offenses

38. Domestic Violence Offenses; INA § 237(a)(2)(E) Includes crimes of domestic violence, stalking, or violation of protection order, crimes against children “Crime of domestic violence” – any crime of violence (as defined in 18 18 U.S.C. 16 (a)) – against any person committed by a current or former spouse, by an individual with whom the person shares a child in common, by an individual who is cohabitating with or has cohabited with a person as a spouse, . . . Or by any other individual against a person who is protected from that individuals acts under the domestic violence laws of the U.S., or an State, Indian tribal government, or local government Domestic Violence Offenses

39. 18 U.S.C. § 16 (a) – an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another 18 U.S.C. § 16 (b) – any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense Johnson v. United States – 130 S.Ct. 1265 (2010) Defines “physical force” as requiring the intentional use of “violent force,” force capable of causing physical pain or injury to another person Requires intentional conduct United States v. Torres-Villalobos, 487 F.3d 607, 615 (8th Cir. 2007) Domestic Violence Offenses

40. Both EWI and those aliens who have been admitted or are LPRs can be charged with drug related offenses But there are differences between the grounds of removability for a drug related offense under § 212 (a)(2)(A)(i)(II) and under § 237(a)(2)(B) if the drug is marijuana EWIs are removable if they possess any amount of marijuana Aliens who have been admitted and LPRs are only removable for marijuana possession if they possessed over 30 grams Both are removable for possessing any amount of any other controlled substance Drug Offenses

41. Intermission - Persecutors Pimentel Rios Beatrice Munyenyezi Former political operative in Rwanda complicit in genocide – convicted of fraud, citizenship revoked, imprisoned, and later removed Ex-solider for Guatemala’s army – removed and prosecuted

42. While an alien may be found removable based upon a criminal conviction, that does not necessarily mean that the alien will be removed from the U.S. Depending on the nature and the severity of the criminal conviction, the alien may be able to avoid removal and remain in the U.S. Relief from Removal

43. Asylum Kansas City Immigration Court completed 283 asylum cases in FY 2012. 40% were granted. Adjustment of Status/Waivers of Inadmissibility Cancellation of Removal Prosecutorial Discretion Deferred Action Special Visa Categories Relief from Removal

44. The Secretary of Homeland Security or the Attorney General may grant asylum to aliens who apply for asylum in a timely fashion, meet certain procedural requirements, and qualify as refugees Refugee: a person who is unable or unwilling to return to the country of his or her nationality because of “persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion….” 8 USC § 1101(a)(42)(A). Asylum

45. An alien may adjust his or her status to that of lawful permanent resident A person who has been admitted and has been convicted of a CIMT or drug offense may be eligible to “waive” that crime and adjust status: Drug offense – Only waiver available waives a single offense for simple possession of 30 grams or less of marijuana CIMT – alien must show extreme hardship to a United States citizen or permanent resident spouse, parent, son, or daughter Adjustment of Status and Waivers

46. LPRs can be granted a waiver of convictions for a drug offenses or CIMT – INA § 240A(a); 8 USC § 1229b(a) This waiver can only be granted once Requires the person have been admitted for permanent residence for not less than 5 years and Resided in the US continuously for 7 years after being admitted in any status and Not have been convicted of an aggravated felony Aliens who entered the U.S. without inspection may be eligible to “cancel” their removal if they meet the requirements of INA § 240A(b); 8 U.S.C § 1229b(b). Cancellation of Removal

47. EWIs– generally no waiver available for these crimes for people who have no status in the U.S. If an EWI marries a United States citizen, they generally cannot adjust their status in the United States, but must return to their country to Consular Visa process At that point, they can apply for a waiver for a CIMT or a drug offense but only if that drug offense relates to 30 grams or less of marijuana Waivers – CIMTs and Drug Offenses

48. Special Visa Categories • The Victims of Trafficking and Violence Act of 2000 created two new non-immigrant visas for non-citizen victims of crimes: the T-visa and the U-visa. • Both visas are designed to provide immigration status to non-citizens that are assisting or are willing to assist authorities in investigating crimes.

49. U Visa • Requirements: • Victim of a qualifying crime listed in INA § 101(a)(15)(U); 8 U.S.C. § 1101(a)(15)(U) • Examples: Rape, torture, trafficking, incest, domestic violence, sexual assault, prostitution, FGM, kidnapping, abduction, manslaughter, murder, felonious assault, or an attempt • Crime occurred in the U.S. or violated U.S. laws • Suffered substantial physical or mental abuse as a result of having been a victim of the crime

50. U Visa • Possesses information concerning the crime • Has been/is being/is likely to be helpful to authorities in the investigation or prosecution of the crime (certification from the official required) • Limited to 10,000 per year