IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY

1. IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY PRESENTED BY: ANTHONY A/K/A “TONY” DRAGO, MODERATOR MARY KRAMER MICHAEL GREENBERG FOR: 11TH ANNUAL NEW ENGLAND CHAPTER CONFERENCE, BOSTON, MARCH 7, 2014

2. WHAT IS THE “CATEGORICAL APPROACH” Determine the category of crime based on a generic (statutory) definition of the offense. Based on: 50 states criminal codes, dictionary definition, & jury instructions, plus Model Penal Code— **Look for the contemporary common definition** The title or caption of an offense does not determine the nature of the crime. A categorical approach looks strictly to the elements.

3. Modified Categorical Approach • Looks to the criminal conviction record to determine which PORTION (which statutory text) the defendant was convicted of. • Includes: charging document, plea documents, verdict, sentencing.

4. Example: Assault or Assault and Battery, M.G.L.A. 265 § 13A • Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than 2 ½ years in a house of correction or by a fine of not more than $1,000.

5. Example: Larceny M.G.L.A. 266 §30 • Whoever steals, or with intent to defraud obtains by a false pretense, or whoever unlawfully, and with intent to steal or embezzle, converts, or secretes with intent to convert, the property of another….

6. Descamps v. United States,133 S. Ct. 2276 (2013) • A criminal sentencing case, Descamps under the Armed Criminal Career Act. Defendant had been convicted of felon in poss. of a firearm. Issue was whether a prior “burglary” conviction qualified as a generic “burglary” (thereby resulting in a sentence enhancement).

7. When to resort to a Modified Categorical Approach? The Modified Categorical Approach can only be used as a limited exception when the statute is truly divisible, meaning, lists distinct potential offense elements in the ALTERNATIVE, through formatting and punctuation.

8. Moncrieffev. Holder,133 S. Ct. 1678 (2012) Issue: Distribution of marijuana without remuneration State statute at issue: O.C.G.A. (Georgia) § 16-13-30(j)(i) Federal law / CSA has a misdemeanor provision for distribution w/o remuneration. GA has none.

9. Prior to Moncrieffe: Castro-Rodriguez • BIA said: burden of proof on non-citizen; adopt a circumstance specific approach to determining amount of marijuana.

10. SCOTUS SAYS: - Strict categorical approach applies; actual conduct is not relevant b/c drug trafficking is a generic crime. - Determine whether state statute is a counterpart to the federal CSA - Burden of proof on the government

11. MONCRIEFFE: • A conviction under state law “constitutes a ‘felony punishable under the [CSA]’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U.S. 47 (2006).

12. New concept: Means vs. Elements Means: alternative methods of committing the crime. Elements: facts which must be proved to a jury beyond a reasonable doubt and which jury must agree on by whatever margin required in the jurisdiction. **Alternative means do not make a statute divisible, only alternative ELEMENTS make a statute divisible.

13. Burden shifting: Almanza-Arenas, 24 I & N 771 (BIA 2009) • An who has been convicted of an offense under a divisible criminal statute, has the burden to establish that the conviction was not pursuant to any part of the statute that reaches conduct involving moral turpitude, including the burden to produce corroborating conviction documents, such as a transcript of the criminal proceedings, as reasonably requested by the Immigration Judge

14. Mandatory Detention Update Joseph Hearing “When Released” Litigation Post-order detention

15. The End • GOOD LUCK!! • HAVE FUN!! • DO GOOD THINGS!!