Advocating For Noncitizen Crime Survivors With Criminal Convictions ______________________

1. Advocating For Noncitizen Crime Survivors With Criminal Convictions______________________ ASISTA Webinar Presented By: Ann Benson & Sonia Parras June 13, 2011 This project is supported by Grant No. 2009TAAXK009 awarded by the United States Department of Justice, Office on Violence Against Women.  The opinions, findings, and recommendations expressed in this document are those of the author (s) and do not necessarily reflect the views of the United States Department of Justice, Office on Violence Against Women.

2. Getting Help On Your Case • The Washington Defender Association’s Immigration Project is part of the ASISTA team and available to provide case analysis and problem solving to immigrant survivor advocates. • To contact WDA’s Immigration Project for assistance email • Jonathan Moore at jonathan@defensenet.org • Ann Benson at defendimmigrants@aol.com. You can also call us at 206-623-4321.

3. Goals of Presentation • Provide an overview of primary crimes-related provisions of immigration law • Outline key concepts in analyzing the immigration consequences of criminal convictions • Apply these understandings assist advocates to more effectively represent self-petitioners and U visa applicants with criminal issues.

4. Overview of Presentation • Necessary tools • Crime-related immigration provisions • Convictions & sentences under the INA • Overview of the categorical analysis • Crimes & self-petitions • Crimes and U visa applications

5. Necessary Tools • Immigration & Nationality Act; • Copy of the criminal statute at issue; • Copy of the criminal record of conviction; • Access to “crim-imm” resources

6. Necessary Tools • For assistance in obtaining the necessary criminal documents see: Step One In Representing Noncitizens With Criminal History: Obtaining Relevant Information About the Criminal Case by Ann Benson, Directing Attorney of Washington Defender Association’s Immigration Project. • Published in Vol. X, Issue X of the ASISTA newsletter and available at www.asista.org

7. Necessary Tools Crim-Imm resources • Immigrantion Advocates Network • www.immigrationadvocates.org • Defending Immigrant’s In the Ninth Circuit, by Kathy Brady et.al, and other materials from: • The Immigrant Legal Resource Center www.ilrc.org • Immigration Law and Crimes, by Dan Kesselbrenner and Lory Rosenberg • National Immigration Project of the National Lawyers Guild - www.nationalimmigraitonproject.org

8. Primary Crime-Related Provisions of Immigration Law • Grounds of Inadmissibility • Grounds of Deportability • Aggravated Felony Definition • Good Moral Character Bars

9. Grounds of Inadmissibility - 8 USC §1182;INA §212 Apply To: • Any noncitizen seeking entry to US • Any noncitizen applying for lawful status • When ICE /DHS seeks to remove/deport Undocumented persons who illegally entered US • LPRs who apply for citizenship

10. Crime-Related Grounds of Inadmissibility – INA §212 • Crimes of Moral Turpitude • EXCEPTION: juvenile offense • Commited before 18 yrs old and 5 years before admission • EXCEPTION: One “petty” CIMT offense • Max possible sentence not > 1yr ; • actual sentence not > 6 months (including time suspended)

11. Crime-Related Grounds of Inadmissibility • Controlled Substance Violations • Possible waiver for first-time simple possession of 30g or less marijuana • 2 or more convictions where aggregate sentence is 5 years or more

12. Crime-Related Grounds of Inadmissibility Conduct based grounds - no conviction required • Reason to believe involvement in drug trafficking, or received proceeds from family member who is/was; • Determined to have physical/mental disorder that poses threat; • Determined to be drug abuser; • Engaged in prostitution (but not johns).

13. Crime-Related Grounds of InadmissibilityReview Questions James is undocumented but married to a U.S. citizen. Under what circumstances do the inadmissibility grounds apply to him? How will a misdemeanor theft conviction impact him? A DV assault conviction? A conviction for attempted possession of cocaine?

14. Crime-Related Deportation Grounds (8 USC 1227) Apply To: • Apply to noncitizens lawfully admitted: • LPRs, CPRs, asylees and refugees; • Nonimmigrant visa holders (even if expired) • Legal grounds for removing people with lawful status/who were lawfully admitted • Do not apply: • To undocumented people (cancellation exception) • To persons applying for lawful status

15. Grounds of Deportability • One Crime Invovling Moral Turpitude (CIMT) • Committed w/in 5 years of admission • Carry maximum POSSIBLE sentence of 1 year or more • Two CIMTs • Regardless of when committed or sentence

16. Grounds of Deportability • Aggravated Felony (see next section) • Controlled substance violations • Exception: single offense for simple possession of 30 grams or less • Firearms convictions

17. Ground of Deporation • Domestic Violence Offense • After Sept. 30, 1996 • Must be crime of violence per 8 USC 16 • Committed against person • w/whom D has qualifying relationship • Judicial “determination” of Protection/no contact order violation • No conviction required

18. Grounds of DeportationReview Questions • Cindy is an LPR convicted of possession of a C/S. Do the grounds of deportation apply to her? Why? Which one? How could it be possible that she would not be deportable? • What if she is convicted of theft? Under what circumstances would she be deportable? Not deportable?

19. Aggravated Felony Provision – 8 USC 1101(a)(43 • 21 provisions under definition • incorportates hundreds of offenses • Triggers harshest consequences • Mandatory detention • Severe restrictions on due process • Ineligibility for many benefits/status • Virtually certain removal

20. Aggravated Felonies • State classification irrelevant – misdemeanors can be AF • E.g theft w/365 day sentence • Highest priority for removal • Conviction required • Increases sentence enhancements in illegal reentry prosecutions

21. AF Definition Applies to ALL • AF IS NOT ground of inadmissibility, but non-LPRs w/AF may be subject to “expedited removal” per §238(b) • AF IS a ground of deportation • Will trigger deportation for LPR/Refugee w/bars on most avenues for relief

22. Aggravated Felonies – Selected Provisions • Murder, rape, Sexual Abuse of a Minor • Drug trafficking • Firearms offenses • Crimes of violence with one year sentence

23. Aggravated Felonies – Selected Provisions • Theft, Possession of stolen property, burglary with one year sentence imposed • Crimes of fraud or deceit where loss = $10k or more • Failure to appear • Attempt or conspiracy to commit any listed offense

24. Aggravated Felonies – Review Questions • Are the following convictions AF: • Misdemeanor assault w/365 day sentence? • Felony Assault with 6 month sentence? • Theft with 365 day sentence where 364 days is suspended? • Burglary with 12 month sentence? • DUI with 365 day sentence? • Vehicular Homicide with 3 year sentence? • Statutory rape (sex w/minor) • Possession of a controlled substance?

25. Selected Crime-related Good Moral Character Bars – INA §101(f) • 101(f)3 – incorporates the crime-related grounds of inadmissibility at INA §212(2) • 101(f)(7) - Confined to jail for 180 days or more (aggregated) • 101(f)(8) - Aggravated felony convictions

26. Convictions Under Immigration Law • INA 101(a)(48)(A) • Formal judgment of guilt by court, or • Deferred Adjudication = conviction if: • Finding of guilt or • Admission of guilt or • Admission of Facts Sufficient to warrant finding of guilt and • Judge orders punishment or restraint

27. Convictions Under Immigration Law • Deferred/Withheld Adjudications • Often used in minor first-time offenses where defendant agrees to comply w/conditions for period and then case dismissed. • These are convictions under immigration lawforever where deferral requires admission of guilt or stipulation to “facts sufficient”. • Even where successfully completed and dismissed

28. Convictions under Immigration Law These do NOT constitute convictions: • Juvenile disposition (in juvenile court); • Conviction on direct appeal of right; • Infractions

29. Post Conviction Relief • PCR “vacations” work if record shows underlying legal defect not just for immigration purposes • Most state expungements do not eliminate conviction for immigration purposes • PCR to modify sentence (e.g. 365 to 364) WILL be given effect (regardless of basis)

30. Convictions – Key Questions • Does the immigration statute applicable in your case require a conviction? • If so, based on the criminal records, does your client have a conviction?

31. Sentence Definition – 8 USC 1101(a)(48)(B) • Includes the period of incarceration or confinement ordered by a court regardlessof any “suspension” of the imposition or execution of the sentence in whole or in part. • Example:365 days imposed with 364 days suspended = 365 for immigration purposes.

32. Sentences • Certain misdemeanors with 365 day sentences = aggravated felonies (e.g. theft and assault). • Exceptions: • Certain Bars triggered by amount of time served regardless of actual sentence imposed • Example: GMC bar where 180 days served • Crimes Involving Moral Turpitude (CIMT) • Inadmissibility Ground Petty Offense Exception • Deportation Ground – 1 CIMT

33. Definition of SentenceINA 101(a)(48)(B) • “Deferred Sentences” do not count if no actual time was imposed on judgment (check your state laws); • Does not include any period of probation or community custody UNLESS imposed as condition of probation or b/c of probation violation

34. Sentences – Key Questions • Determine what the actual “sentence imposed” is (regardless of time suspended). • Determine if possible crime-related immigration provisions are triggered due to the sentence.

35. Convictions & Sentences – Review Questions Angela is charged with misdemeanor theft. Would the following be a conviction? What are the sentencing implications? What additional information would you want? • 12 month deferred adjudication agreement? • Guilty plea with 12 month deferred sentence? • Plea w/365 day sentence? 364 days? • Plea to attempted theft with 90 day sentence?

36. Analyzing The Impact of A Conviction • Step 1: Existence of Conviction • Does not necessarily determine that it triggers immigration penalty • Step 2: Identify possible crime-related immigration provisions • Step 3: Use categorical analysis to determine if this conviction triggers the immigration penalty • Step 4: If yes, identify possible waivers

37. Categorical Analysis • Analytical Process sanctioned by US Supreme Court to determine whether elements required for conviction under state/federal criminal statute sufficiently match the elements of the relevant crime-related immigration provision • Example: Does this state misdemeanor assault conviction constitute a “crime of violence” under the agg felony (or DV deportation ground)?

38. Categorical Analysis • The analysis does not focus on conduct of defendant (what she did or did not do) but on the elements required for conviction as set forth in the statute of conviction or, where applicable, the record of conviction.

39. Categorical Analysis – Step One • Step 1A: Identify elements of the “generic definition” of the immigration provision at issue • Some defined by reference to a federal criminal statute (e.g. “crime of violence” is defined by reference to 18 USC 16) • If no reference to federal statute, then defined by the courts/caselaw (e.g. crimes involving moral turpitude)

40. Categorical Analysis – Step One • Step 1B: Compare the elements of the “generic definition” to the elements required for conviction under the criminal statute of conviction. • Imperative to locate a copy of the statute of conviction

41. Categorical Analysis – Step One • If elements of statute of conviction sufficiently match generic definition, then the conviction “categorically” falls within the immigration provision and triggers the penalty • Key is to focus on the ELEMENTS required for conviction

42. Categorical Analysis – Step One • Important to identify the elements required for conviction under the criminal statute • Look to criminal statute and caselaw interpreting it to determine the elements required for conviction

43. Categorical Analysis • If statute not categorical match, then conviction does not fall within the immigration provision. HOWEVER, • May require STEP TWO analysis b/c crim statute is “overbroad” or “divisible” because either: • 1. it includes multiple offenses • 2. multiple ways to commit the offense Only some of which have elements that match the generic definition

44. Categorical Analysis – Step Two Step Two or “modified categorical analysis” • Look to the “record of conviction” to determine the specific elements required for this conviction • Compare these specific elements to generic definition • If ROC doesn’t establish which part of criminal statute was basis for conviction, then it doesn’t trigger immigration provision

45. Documents Included In the Record of Conviction • Information in the charging papers (however, only the count that has been pled to or proved, not original charges that have been amended or dismissed charges); • The judgment of conviction; • Jury instructions; • A signed guilty plea or a written plea agreement; • The transcript from the plea proceedings; and • Sentence & transcript from sentencing hearing.

46. Record of Conviction DOES NOT INCLUDE: • Prosecutor’s remarks during the hearing; • Police reports; • The affidavit of probable cause; • Probation or “pre-sentence” reports; • Statements by the noncitizen outside of the judgment and sentence transcript (e.g., to police or immigration authorities or the immigration judge); • A court docket summary prepared by clerical staff; • Information from a co-defendant’s case.

47. CONT. WARNING! The police report and/or affidavit of probable cause WILL BE INCLUDED in the ROC if it is incorporated into the plea statement as the factual basis for the plea.

48. Categorical Analysis – Step Two • Defendant’s plea statement most important document • Charging papers or judgment & sentence alone are insufficient to establish elements of conviction where statute is overbroad or divisible

49. Categorical Analysis • It is imperative to consult with additional resources and experienced practitioners • See Chapter 2 of Defending Immigrants in the Ninth Circuit for detailed analysis • Read BIA and circuit court decisions to understand how the BIA and your circuit view and apply the categorical analysis

50. Categorical Analysis – Step Two • Examples: • 1. Washington State Felony Assault 3rdStatute has 8 different prongs that are 8 separate crimes, only some of which have elements that are CIMTs • 2. Washington State Misdemeanor Assault 4 defined by caselaw to include multiple ways to commit the offense, only not all of which are crimes of violence under 18 USC 16 (as required for agg felony or DV deportation).