Representing the Non-Citizen Defendant

1. Representing the Non-Citizen Defendant Emily Datnoff Maryland Immigrant Rights Coalition OSI-Baltimore Community Fellow Maryland Office of the Public Defender

2. Goals of this Training • Help you fulfill your professional responsibility under Padilla v. Ky. • Help you understand important factors in determining immigration consequences for an individual client. • Give you some tools and resources to do so. • NOT to turn you into an immigration attorney • Help you identify some strategies for avoiding or minimizing harsh immigration consequences.

3. Padilla v. Kentucky • 599 U.S. ____ (March 31, 2010) • Mr. Padilla • Lawful permanent resident of the US for 40+ years • Pled to possession with intent to distribute marijuana • after his defense counsel advised him he “did not have to worry about immigration status because he had been in the country so long.” • Promptly put into deportation proceedings as an “aggravated felon” (drug trafficking).

4. U.S. Supreme Court: • Sixth Amendment guarantee of effective assistance of counsel requires defense counsel to advise about immigration consequences. • Silence is not an option • Failure to advise satisfies the first prong of Strickland’s ineffective assistance test

5. Padilla is Retroactive in MD • The Maryland Court of Appeals in Denisyuk v. State held that Padilla applies retroactively to all pleas entered after the effective date of the enactment of the Illegal Immigrant Reform and Responsibility Act of 1996.

6. Recent U.S. Supreme Court Decisions • Missouri v. Frye (Mar. 21, 2012) held that the Sixth Amendment guarantee of effective assistance of counsel requires defense counsel to “communicate formal offers from the prosecution to accept a plea on terms and conditions that my be favorable to the accused.” • In Lafler v. Anthony (Mar. 21, 2012) the parties agreed that defense counsel was ineffective when he advised the client “to reject the plea offer on the grounds that he could not be convicted at trial.”

7. What does this mean? • When States offers a plea, defense counsel should know the immigration consequences of the criminal charges to competently advise clients to • (1) reject offer; • (2) accept offer; or • (3) proceed to trial. • Note – Lafler states that a strategic decision to proceed to trial is not necessarily deficient performance

8. Remind me again why this is my job? • consequences are so severe • can be a “life sentence” for shoplifting with suspended sentence • penalties are automatic and inflexible • Deportation, disqualification from green card or citizenship, criminal penalties for reentry • In Immigration Court, it’s too late! Criminal defense counsel is the only one in a position to make a difference.

9. Defense counsel CAN make a differenceAll convictions are not alike for immigration purposes • Depends on the individual’s circumstances • Some convictions and/or sentences are worse than others • Creative strategizing CAN minimize adverse consequences

10. Effective Assistance of Counsel • To provide effective assistance of counsel, you must help your client avoid adverse immigration consequences and find a safe(r) plea. • The only way to do that is to obtain the necessary information to assess the immigration consequences. • immigration status • prior criminal history • potential eligibility for immigration relief • (1) Spouse? USC or LPR? • (2) Children? USC or LPR? • (3) Parents? USC or LPR? • (4) When did you enter the U.S.? • (5) Do you fear returning to your country

11. Ripped from your case file • Two clients arrested in an allegedly stolen car with a firearm and a small amount of marijuana. • Charged with: • Theft of a motor vehicle, Md Crim 7-105 • Possession of marijuana, Md Crim 5-601(a)(1) • Carrying handgun w/o permit, Md Crim 4-203 • What is a safe plea for them?

12. THERE’S NO WAY TO KNOW, because you don’t have enough information. • For a non-citizen client, you must know: • immigration status • prior criminal history • potential eligibility for immigration relief • (1) Spouse? USC or LPR? • (2) Children? USC or LPR? • (3) Parents? USC or LPR? • (4) When did you enter the U.S.? • (5) Do you fear returning to your country?

13. Early Identification Is Key! • A conviction from any court – no matter if it’s appealable – subjects the client to deportation proceedings. • Identify the noncitizen defendant at intake and obtain the necessary information for an immigration referral. • Submit the referral at least two weeks before the trial date.

14. Consequences differ depending on status Inadmissibility (for those applying for LPR or reentry) v. Deportability (for those with status, esp. LPR) v. Ineligibility for citizenship (disqualified from showing good moral character) See Immigrant Defense Project’s Summary Checklist

15. Penalties regardless of status • Mandatory detention during removal proceedings • Criminal penalties for reentry after deportation • Up to 20 years for “aggravated felon” • Bars to reentry – permanent banishment for “aggravated felons” • Even for undocumented clients

16. What is my client’s status and/or potential status? Ask EVERYONE where they were born. • Explain why you are asking, e.g., “convictions directly affect immigration status” • Look at and copy the documents. • I-94 card or approval notice • I-551 (“green” card) • Stamp in passport • Work permit is not conclusive

17. Immigration status • Citizen • LPR, lawful permanent resident • Temporary non-immigrant • visitors, students, some workers, circus performers • Asylees and refugees • Temporary protected status (TPS) • NACARA eligible (Central Americans) • Applicants for status • Undocumented (Entered Without Inspection) • Overstay (40% of those here illegally) • With final order of removal

18. Law enforcement related visas • S visa – “snitch” visa • T visa – victim of trafficking • Prostitution, other charges • U visa – victim of certain (violent) crimes • Often used in domestic violence cases • Always ask State’s Atty if the victim is pursuing a U visa – good evidence of bias!

19. What is my client’s prior criminal history? • Get and review your client’s rap sheet. • Very important because it can affect both • The consequences of a conviction and • Eligibility for possible immigration relief

20. Analyzing immigration consequences is more complicated than you think! There is no logic to it at all! Your client is a non-citizen. She is accused of shoplifting an expensive sweater and is charged with theft under $1000. Can she plead to § 7-104? • Theft with a sentence of 1 yr or more = aggravated felony • Theft is a Crime Involving Moral Turpitude (CIMT)

21. It depends on her immigration status! • Your client has a Green Card (LPR) • If the sentence is > 1 yr, she’s a GONER! • If she has been in the U.S. for more than 5 years, she will NOT be subject to deportation if: • the sentence < 1 yr, unless she has a prior CIMT (prior theft) • If she has been in the U.S. for less than 5 years, she will be subject to deportation regardless of the length of the sentence. • If she plans on traveling outside the U.S., she will be subject to deportation upon her return regardless of the length of the sentence. But, she may be eligible for a waiver. • Your client is applying for a Green card. • Your client will be DENIED, because theft is a CIMT! • But, your clientmay be eligible for a waiver to waive the ground of inadmissibility based on the CIMT.

22. Avoiding Consequences Under Imm Law • Avoid deportability • LPR’s (green card holder) • Avoid inadmissibility • Applying for immigration relief • LPR’s who may travel outside US • Avoid disqualification from good moral character • LPR’s applying for citizenship

23. A little side trip for some definitions • Words sometimes have surprising meanings in Immigration Land. • Immigration law treats convictions in a very formalistic way.

24. Is it a conviction (for immigration purposes)? • INA §101(a)(48)(A) [8 USC §1101(a)(48)(A)] • IDP Summary Checklist  EITHER: • A formal judgment of guilt or…

25. Conviction (cont.)8 USC §1101(a)(48)(A) (1) An admission or finding of guilt or facts that would warrant finding of guilt AND (2) the imposition of some punishment, penalty or restraint on liberty • Including probation or a fine.

26. No Conviction • Stet • Conditional stet • Juvenile • Vacated conviction • Acquittal • Conviction • PBJ – probation before judgment • Guilty/nolo plea • Not criminally responsible (NCR) • Juvenile in adult court • PBJ is a conviction for immigration.

27. Sentence to imprisonment 8 USC 1101(a)(48)(B) A “term of imprisonment” includes the incarceration ordered by the court regardless of any suspension 1 year suspended = 1 year served

28. (How) can I help my client avoid adverse immigration effects? • Avoid a conviction, if possible. • Avoid a conviction with the particular consequences your client needs to avoid. • What are the likely effects of the proposed plea? • Take client’s criminal history into account • Is there a better alternative plea? • Would negotiating the sentence or other factors help? Consecutive vs. concurrent

29. Categories of convictions with immigration consequences: • Aggravated Felonies • Controlled Substance Offenses • Crimes Involving Moral Turpitude • Crimes of Domestic Violence • Firearm Offenses

30. Aggravated Felonies • May be neither a felony nor aggravated • Most draconian consequences: • Disqualified from almost everything forever • Mandatory detention • Administrative removal • Listed by statute at 8 USC 1101(a)(43).

31. Aggravated felony:defined at 8 USC §1101(a)(43) • Some subsections have “triggers” which can be avoided; some do not • Actual or maximum sentences • Amount of loss to victim • Includes attempts and conspiracy to commit any aggravated felony

32. Aggravated felonies (cont.) • Include: • Drug trafficking • Anything with even the intent to distribute • REGARDLESS of sentence • Does NOT include possession (IDP checklist) • Crimes of violence (w/ sentence of 365 days) • May include 2nd degree assault • Theft and burglary offenses (w/ 365 day sentence)

33. Aggravated felonies (cont.) • Also include: • Offenses involving fraud and deceit (w/ more than $10,000 in loss to the victims) • Forgery, counterfeiting • Alien smuggling • FTA on felony charge with 2 year potential sentence • etc, etc.

34. Aggravated Felonies (cont.)Crimes of Violence • An Aggravated Felony “crime of violence” is defined by 18 U.S.C. § 16, and requires the intentional use of physical force against the person or property of another • An offense involving elements of recklessness or negligence, without specific intent, is not a crime of violence, and thus not an Agg Fel • Avoid specific intent crime = avoid Agg fel

35. Crime involving moral turpitude(CIMT/ CMT) • Crime is malum in se, inherently base or vile • Often turns on intent • Mens rea can include recklessness • Law is currently very muddled, but court can look at the actual facts of the conviction • Includes attempts or conspiracy to commit any CIMT • May also be an aggravated felony • Exception for first offense petty offense

36. Controlled substance offenses • Any crime “relating to a controlled substance” • Very broad – includes paraphernalia • Exception for clients with immigration status: simple possession of 30 grams or less of marijuana • May also be an aggravated felony and CIMT if more than simple possession. • Addiction itself – even without a conviction – can have consequences

37. Crimes of Domestic Violence • “Crime of violence” against a member of family and/or household entitled to protection • Simple assault and battery are not “crimes of violence” • Also deportable offenses: • Violation of protective order • Child abuse, neglect, abandonment • Stalking

38. Firearms offense • Just about any offense involving a firearm in any way • Leads to removability • Does NOT result in inadmissibility • (may be a better plea for someone who will be applying for a green card because it preserves that possibility)

39. When Do Traffic Crimes Matter? • If your client has TPS or is eligible for TPS, then traffic crimes matter! • Any two misdemeanors make a client ineligible for TPS – DWOL, Driving on Suspended, DUI, etc. • A DUI (impaired by controlled substance) is a controlled substance offense, a deportable offense. • A conviction for Driving on Suspended while committing a DUI is a crime involving moral turpitude.

40. The Agreement of Facts Matters • Generally, the client should not plead to the facts as stated in the statement of charges!!! • WHY??? • Because with certain convictions, the Immigration Judge can review the “record of conviction” to determine whether the crime is an aggravated felony or CIMT. • E.g., 2d Assault, theft, fraud crimes, carrying a dangerous weapon, and many more

41. Record of Conviction includes: Statutory definition of the crime Statement of Charges Jury instructions (if trial) Plea agreement Admissions at colloquies Any facts found by judge to which D agrees Record of Conviction does not include: Presentence report Statement of Probable Cause (that has not been incorporated into SOC) Police Reports Prosecutor statements Dropped charges Trial testimony What is the “Record of Conviction”?

42. Problem-solving strategies(the fun part) • The art of negotiation: • Why should a states atty do something special for your client just because s/he’s not a citizen? • Get to know your client • Emphasize the equities of the case

43. Avoiding the bad stuff • Avoid a conviction: • Get a conditional stet, • Agreement to dismiss with community service, • Keep your young client in juvenile court, • Continue case until client pays restitution, etc.

44. Strategies to reduce sentence • Waive credit for time served • Agree to serving actual time rather than suspending it • Stack consecutive sentences to various charges to avoid any one sentence ≥ 1 year • Agree to a longer period of probation and shorter incarceration

45. Trial Tactics – District Court • Ask for postponement • Pray a Jury Trial

46. Trial Tactics – Circuit Court • Dismissal of de novo appeals – DO NOT let the judge dismiss the appeal for FTA because the client was in DHS custody.State v. Stone, 344 Md. 97, 106 (1996) (error to dismiss a criminal defendant’s appeal from the District Court to the Circuit Court “when the trial court has information that the appellant’s failure to appear was neither willful nor voluntary.”) • Remind the State that they have the burden of bringing the client to trial.

47. OPD • OPD Immigration Support email address • Lisa Marquardt of Collateral Review Division • lmarquardt@opd.state.md.us • 410-767-4194 • Emily Datnoff • edatnoff@opd.state.md.us • 410-767-9854