REPRESENTING THE CRIMINALLY CHARGED ALIEN

1. REPRESENTING THE CRIMINALLY CHARGED ALIEN c 2008 Daniel C. Lemley May be used for educational purposes without permission

2. Thanks to AILA Link for use of their materials in this and the written accompanying materials. Materials used with permission.

3. THE NUMBERS GAME • None is the most wonderful number for crimes relating to an Alien, • Two can be very bad regardless of the actual crime charged and or convicted.

4. COMMON MISPERCEPTIONS • “I have been practicing criminal law for a million years and I know what an aggravated felony is and this ain’t it. Don’t worry about what effect it will have on your immigration case.” • “You are undocumented, well shucks, I can’t find my birth certificate either.” • “You only stole a bottle of men’s cologne twenty years ago, never served a minute, why that ain’t a problem.”

5. My Favorite • “So your wife got drunk, started screaming and hitting on you. Neighbor called the police and arrested both of you. Well if this is your first offense we will just get both of you to say you are sorry and go to them classes and the Court will dismiss your case. That won’t cause you a problem with immigration and you will thank me for doing you a great job and pay double my normal fee.”

6. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • Throw away all preconceived notions. • Assume ALL convictions may be a problem. • Immigration definition of “conviction” is broad. • Aggravated Felony, totally rethink your understanding

7. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • Certain crimes make the Alien inadmissible or removable. • Though already legally admitted, lawfully present and in status still must be “admissible” to get certain benefits. • Even if a LPR and not removable certain convictions still bar or delay becoming a USC

8. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • An ounce of prevention is worth a Pound of collateral attack. • Eventually the Alien will be in front of Department of Homeland Security, Either…

9. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • USCIS, Benefits branch, • They Stand on Guard to serve and protect • Or

10. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • ICE

11. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • Conviction defined for immigration purposes • 101(a)(48)(A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— • 101(a)(48)(A)(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and • 101(a)(48)(A)(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. • 101(a)(48)(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. • INA Section 101(a)(48) definition of “Conviction” Copied from AILA Link Primary Sources INA.

12. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • Aggravated felony defined for immigration purposes very broad • Rapes, murders, child abusers, kidnappers we understand, BUT • 101(a)(43)(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at [sic] least 1 year; • 101(a)(43)(F) a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment at least 1 year; • Check the list.

13. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • Crime of Moral turpitude more traditional definition. • “We have held that moral turpitude refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Matter of L-V-C-, Interim Decision 3382 (BIA 1999)

14. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • Why it Matters. • Admissibility under section 212. Can’t come here, come back here, or get benefits here • Removability under section 237. Go home with or without family to good or bad circumstances. • Convictions are retroactive to immigration benefits.

15. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • Admissibility section 212 highlights. • 212(a)(2)(A)(i)(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or • 212(a)(2)(A)(i)(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), • 212(a)(2)(A)(ii)(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). • 212(a)(2)(B) Multiple criminal convictions.—Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement [Ed note] were 5 years or more is inadmissible. • Family can pay for sins of the sinner, prostitutes, drug traffickers, terrorists etc

16. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • Removability highlights. • 237(a)(2)(A)(i)(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j)) after the date of admission, and • 237(a)(2)(A)(i)(II) is convicted of a crime for which a sentence of one year or longer may be imposed. • is deportable. • 237(a)(2)(A)(ii) Multiple criminal convictions.—Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable. • 237(a)(2)(A)(iii) Aggravated felony.—Any alien who is convicted of an aggravated felony at any time after admission is deportable. • 237(a)(2)(B)(i) Conviction.—Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

17. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • AND • 237(a)(2)(E) Crimes of Domestic violence, stalking, or violation of protection order, crimes against children and. Whole list of DV crimes in section “E”. • AND lots of other stuff.

18. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • What is a poor practitioner to do?

19. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • Remember prosecutors are people to. Educate them. Diversion plans are often no good and convictions apply retroactively to most immigration benefits. • Fully inform your client, in advise and in the guilty plea colloquy. • Advisement may be could have bad and non repairable consequences to any immigration case. • BUT MOST IMPORTANTLY!

20. REPRESENTING THE ALIEN IN THE INITIAL CHARGE • Don’t let the Tail wag the dog. • “You need to consider the immigration problems caused by a conviction for Capital Murder for the Murder after sexually assaulting a Child when the Prosecutor is offering LWOP instead of Death”

21. REPRESENTING THE ALIEN IN COLLATORAL ATTACK OF A PREVIOUS CONVICTION • Best option is not to be in this fight, however, often you do not have a choice. • Most common scenario is alien has applied for adjustment and been denied and put into proceedings or has been picked up and put into proceedings. • Time becomes of the essence. Gets removed in Immigration Court, sent home then the conviction gets set aside. May then have other admissibility problems.

22. REPRESENTING THE ALIEN IN COLLATORAL ATTACK OF A PREVIOUS CONVICTION • Conviction being set aside for Non-Constitutional/Statutory grounds, ie. immigration purposes, not much help in the removal case. See Matter of Pickering, 23 I & N Dec. 621 (BIA 2003). • Constitutional/Statutory Grounds must be in the Order

23. REPRESENTING THE ALIEN IN COLLATORAL ATTACK OF A PREVIOUS CONVICTION • Rule 32 is the remedy. Rule 32, Alabama Rules of Criminal Procedure. • Rule 32.1 Scope of Remedy • Rule 32.2 Preclusions of Remedy.

24. REPRESENTING THE ALIEN IN COLLATORAL ATTACK OF A PREVIOUS CONVICTION • Rule 32.1 • Highlights. • (a) The constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief. • (b) The court was without jurisdiction to render judgment or to impose sentence. • (c) The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law. • (d) The petitioner is being held in custody after the petitioner's sentence has expired. • (e) Newly discovered material facts exist, which require that the conviction or sentence be vacated by the court, because: • (1) The facts relied upon were not known by the petitioner or the petitioner's counsel at the time of trial or sentencing or in time to file a post trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence; • (2) The facts are not merely cumulative to other facts that were known; • (3) The facts do not merely amount to impeachment evidence; • (4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and • (5) The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that the petitioner received. • (f) The petitioner failed to appeal within the prescribed time from the conviction or sentence itself or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner's part.

25. REPRESENTING THE ALIEN IN COLLATORAL ATTACK OF A PREVIOUS CONVICTION • Rule 32.2 Preclusion Highlights • Could have should have. • Did done. • Been there done that. • Its been a long long time.

26. REPRESENTING THE ALIEN IN COLLATORAL ATTACK OF A PREVIOUS CONVICTION • My Hero Justice Carnes. • Full fair trip theory. • Don’t have to advise the Defendant everything for valid conviction. • Ninth Circuit some help. United States v. Kwan, No. 03-50315 (9th Cir May 12, 2005) . • But don’t count on it here.

27. REPRESENTING THE ALIEN IN COLLATORAL ATTACK OF A PREVIOUS CONVICTION • Remember Prosecutors are people to!! • Educate them. • They need something to hang their hat on and fairness and consistency important factor.

28. REPRESENTING THE ALIEN IN COLLATORAL ATTACK OF A PREVIOUS CONVICTION • If it ain’t by agreement tough fight. • Glorious victory followed by ignominious defeat. • Rule 32, granted over prosecutor’s objection. Victim in town and the police officer is available. Former misdemeanor probation case reinstated to become a felony time to serve case. • Tread lightly!!

29. PARTING SHOTS • An ounce of prevention is worth a pound of Collateral Attack! • Do not let the tail wag the dog. • None is the most wonderful number. • Prosecutors are people ! • Get the Docket entry’s correct and certified copies. Get copies of the statute convicted or and the range of punishment. Get the names right.