Immigration Consequences of Criminal Conduct CPCS Immigration Impact Unit 2011

1. Immigration Consequences of Criminal Conduct CPCS Immigration Impact Unit 2011

2. Topics of Discussion • Types of Immigration Status • Immigration Terms of Art • ImmigrationConsequencesofCriminalOffenses • Analyzing an Offense • Immigration Enforcement and Post conviction relief

3. Why Do I Need to Know This? Padilla v. Kentucky March 31, 2010 6th A duty to advise client of immigration consequences prior to pleading guilty Failure to advise is ineffective assistance of counsel

4. To advise your client you need to know:

5. Topics of Discussion • Types of Immigration Status • Immigration Terms of Art • Immigration Consequences of Criminal Offenses • Analyzing an Offense • Immigration Enforcement and Post conviction relief

6. Types of Immigration Status U.S. Citizen Legal Permanent Resident Lawful Non-Immigrants Refugees & Asylees Temporary Protected Status Undocumented and Out of Status

7. Topics of Discussion • Types of Immigration Status • Immigration Terms of Art • Immigration Consequences of Criminal Offenses • Analyzing an Offense • Immigration Enforcement and Post Conviction Relief

8. “Conviction” Finding of guilt or admission of sufficient facts AND punishment, penalty, or restraint on liberty

9. MA Dispositions Under Federal Immigration Law

10. MA Dispositions Under Federal Immigration Law Civil Infractions are not convictions for immigration purposes

11. Juvenile Dispositions • A finding of delinquency is not a conviction for immigration purposes • A youthful offender adjudication may be a conviction for immigration purposes Some grounds of inadmiss/deport don’t require a conviction, so juvenile dispositions can still have imm. conseq.

12. Sentence EX: A 2 year sentence of imprisonment, 6 months to serve, the balance suspended for 1 year = a 2 year sentence of imprisonment.

13. Crime Involving Moral Turpitude Matter of Silva-Trevino, 24 I&N Dec. 687 (2008)

14. Examples of Crimes Involving Moral Turpitude

16. Topics of Discussion • Types of Immigration Status • Immigration Terms of Art • Immigration Consequences of Criminal Offenses • Analyzing an Offense • Immigration Enforcement and Post conviction relief

17. Types of Consequences • Removal of person who had been lawfully admitted to U.S. • Removal of person seeking adjustment to permanent resident • Denial of admission • Bar to naturalization • Loss of visa or temporary legal status • Denial of asylum

18. Grounds of Inadmissibility and Deportability

19. Inadmissible Offenses:Crime Involving Moral Turpitude A person is inadmissible based on one crime involving moral turpitude, UNLESS: • One crime committed when under 18 years old and at least 5 years before admission or • Maximum possible penalty is one year or less and sentence is less than 6 months

20. Inadmissible Offenses:Controlled Substances • Violation of any law RELATING TO controlled substances • Any alien who the AG has reason to believe is a drug trafficker.

21. Inadmissible Offenses:Prostitution • Engaging in prostitution • Procuring a prostitute • Receiving the profits from prostitution (pimps)

22. Inadmissible Offenses:Multiple Offenses Multiple offenses - 2 or more convictions for which aggregate sentence is more than 5 years

23. Deportable Offenses:Crime Involving Moral Turpitude • One CIMT within 5 years of admission, where a sentence of at least one year may be imposed OR • Two CIMTs at any time, not arising out of a single scheme of criminal misconduct

24. Deportable Offenses:Controlled Substance Offenses Conviction for ANY drug offense makes a person deportable - Except1 offense of 30 grams or less of marijuana - Includes conspiracy or attempt

25. Deportable Offenses:Firearm Offenses • Includes a conviction for any crime of buying, selling, using, owning, possessing or carrying any firearm or destructive device • Includes conspiracy and attempt • May also include crimes for which possession or use of a firearm is an element of the offense

26. Deportable Offenses:Domestic Violence Includes conviction for: • Crime of domestic violence • Stalking • Child abuse • Child neglect • Child abandonment or Violation of criminal or civil protective orders

27. Aggravated Felony • To be avoided at all costs! • 8 U.S.C.1101(a)(43) – federal statutory definition • Minor offense can be AF • Misdemeanor can be AF

28. Aggravated Felony

29. Aggravated Felony cont’d

30. Aggravated Felony cont’d

31. Topics of discussion • Types of Immigration Status • Immigration Terms of Art • Immigration Consequences of Criminal Offenses • Analyzing an Offense • Immigration Enforcement and Post Conviction Relief

32. Analyzing an Offense Does it fall into any of the categories of inadmissibility or deportability?

33. Grounds of Inadmissibility and Deportability

34. Analyzing an Offense Step One: Is it a CIMT?

35. Analyzing an Offense Step Two: Could it be an Aggravated Felony?

36. Analyzing an Offense Step Three: Does it fall under any other category of inadmissible or deportable offenses?

37. Grounds of Inadmissibility and Deportability

38. Analyzing an Offense Step Four: Determine how your client’s immigration status and prior record impact the analysis

39. Analyzing an Offense Step Five: Determine your client’s priorities.

40. Divisible Statutes When a statute involves various types of criminal conduct, any of which violates the statute, but only some conduct has immigration consequences.

41. MGL 272 s 53 Common night walkers, common street walkers, both male and female, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, keepers of noisy and disorderly houses, and persons guilty of indecent exposure shall be punished …

42. MGL 272 s 53 Common night walkers, common street walkers, both male and female, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, keepers of noisy and disorderly houses, and persons guilty of indecent exposure shall be punished …

43. MGL 272 s 53 Common night walkers, common street walkers, both male and female, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, keepers of noisy and disorderly houses, and persons guilty of indecent exposureshall be punished …

44. Determining conduct How does the court determine what conduct your client is charged with violating? The Record of Conviction

45. Record of Conviction The record of conviction includes: • Complaint or indictment • Plea agreement • Plea colloquy transcript or facts admitted by defendant during plea • Sentence • Judgment

46. Topics of discussion • Types of Immigration Status • Immigration Terms of Art • Immigration Consequences of Criminal Offenses • Analyzing an Offense • Immigration Enforcement and Post Conviction Relief

47. Immigration Enforcement • Criminal Alien Program (CAP) • 287(g) Agreements • Secure Communities

48. Post Conviction Relief • Motion for New Trial or to Vacate Plea • Violation of immigration warning statute M.G.L. ch.278, §29D • Ineffective assistance of counsel (Padilla, Clarke) • Vienna Convention (Gautreaux) • Motion to Revise and Revoke

49. Most Important Things to Remember • Determine client’s immigration status • Determine client’s goals • Talk to client’s immigration attorney • Avoid aggravated felony conviction • Consider client’s prior record, inc. CWOFs that were dismissed • AND…..

50. Most Important Things to Remember • Tell client not to talk to immigration official, apply for anything, or leave U.S. without talking to immigration attorney first • GET HELP analyzing immigration consequences