1 Padilla in Practice Series Immigration Consequences of Drug Offenses: Overview and Strategies January 31, 2012 National Association of Criminal Defense Lawyers and the Defending Immigrants Partnership
2 Presenters Dan Kesselbrenner, National Immigration Project of National Lawyers Guild Benita Jain, Immigrant Defense Project
8 Deportability Controlled substance offense? Drug trafficking aggravated felony?
9 Controlled Substance Offense INA 237(a)(2)(B)(i); 8 USC 1227(a)(2)(B)(i) Conviction Relating to Controlled substance (21 USC 802) Exception: one 30g marijuana possession
10 Controlled Substance Schedule I, II, III, IV, or V of federal Controlled Substances Act
11 Conviction for Federally Covered Drug Controlled Substance Offense Deportable!
12 Possession Only Controlled Substance Offense Deportable!
13 Possession With Intent to Sell Controlled Substance Offense Deportable!
14 Sale or Distribution Controlled Substance Offense Deportable!
15 Marijuana Possession Conviction Simple 30 grams or less Personal use One time Exception to Controlled Substance Ground Not Deportable! Safer Haven
16 Paraphernalia Conviction Controlled Substance Offense Exception: Deportable! One time + relating to 30 grams marijuana
17 Conviction for drug that is not covered under federal law Not Controlled Substance Offense Not Deportable! Safer Haven
18 Exercise The following acts are hereby prohibited: (i) the possession of a small amount of marijuana only for personal use; (ii) the possession of a small amount of marijuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marijuana but not for sale. For purposes of this subsection, thirty (30) grams of marijuana shall be considered a small amount of marijuana. Does a conviction under this statute make your LPR client deportable?
19 Review: Record of Conviction Includes Elements of offense (statute & case law) Criminal charge (information, complaint, etc. if incorporated into plea i.e. pled as charged) Written plea agreement Transcript of plea hearing Transcript of judgment Sentence Jury instructions
20 Review: Record of Conviction Does NOT Include: Police reports, probation or pre-sentence reports Statements by non-citizen outside of judgment and sentence transcript (to police for example) Information from co-defendant s case WARNING: Stipulating to facts in a document not otherwise part of the ROC incorporates them by reference into the ROC (i.e., stipulation to police reports
21 Drug Trafficking Aggravated Felony INA 101(a)(43(B) Any illicit trafficking In a controlled substance (as defined in section 102 of the Controlled Substances Act), including any drug trafficking crime (as defined in section 924(c) of title 18, United States Code)
22 Drug Trafficking Crime 18 U.S.C. 924(c): felony punishable under the Controlled Substances Act the Controlled Substances Import and Export Act or the Maritime Drug Law Enforcement Act.
23 Drug Trafficking AF: Felony LopezRule felony under federal law State felony drug conviction not always drug AF!
24 Drug Trafficking AF: The Key Question Is the state offense punishable as a misdemeanor or felony under federal law? first-time simple possession = federal misdemeanor Exception: flunitrazepam recidivist possession = sometimes federal felony almost all manufacturing, distribution, PWID = federal felony
25 Federal felony drug conviction Aggravated Felony Deportable Probably Mandatory!
26 State drug conviction for offense that federal law punishes as a felony Aggravated Felony Deportable Probably Mandatory!
27 Simple possession first offense Not Aggravated Felony (unless flunitrazepam) (but still Controlled Substance Offense, Deportable)
28 Simple possession second or subsequent No finding of prior drug conviction/recidivism Not Aggravated Felony Prior at issue in subsequent case, finding of recidivism finality of prior? notice? Maybe Aggravated Felony process requirements?
29 Drug Sale Aggravated Felony Deportable Probably Mandatory!
30 Offer to sell Possible Aggravated Felony safer haven Does ROC establish actual sale? Burden? (But probably still Controlled Substance Offense = Deportable!)
31 Gratuitous distribution of small amount of marijuana Possible Aggravated Felony safer haven What is small amount? Burden? (But still Controlled Substance Offense = Deportable!)
32 Review: Possible Drug AF safer Havens Type of drug is not in the record Sale, manufacturing or distribution not in record Possession case and prior not at issue Offer to sell only Gratuitous marijuana distribution (small amount) but remember to analyze whether it s still a controlled substance offense!
33 Exercise The following acts are prohibited: Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board. LPR client deportable under controlled substance ground? LPR client deportable/ineligible for relief under AF ground?
34 Exercise Same LPR client Charge: Possession with intent to deliver Statute doesn t cover small amount of marijuana Strategies?
35 Drug Offense Deportability Strategies Avoid controlled substance offense deportability: Avoid any drug-related conviction. Specify a substance that is not covered under 21 U.S.C If impossible, then keep record clear of substance involved (if your state punishes non-csa drugs. Compare). If cannot avoid drug conviction in marijuana case and client has no prior drug convictions, take a possession for personal use of 30 grams or less of marijuana (preferably on record, else leave record ambiguous).
36 Deportability Strategies, cont d If cannot avoid CSO, avoid drug aggravated felony (to possibly preserve relief 1. Plead/limit record to simple possession (except flunitrazepam) instead of distribution/intent to sell. 2. If client has prior final drug conviction, avoid recidivist finding especially if state has notice/process requirements similar to federal (opportunity to challenge fact, finality, validity of prior).
37 Deportability Strategies, cont d 3. If cannot plead/limit record to simple possession, plead/limit only to offer to sell (risky, but leaves opening) 4. If cannot avoid distribution in marijuana case, plead/limit to gratuitous distribution of small amount of marijuana. (risky, but leaves opening)
38 Undocumented Clients Inadmissibility
39 Inadmissibility Controlled substance offense? Reason to believe drug trafficker?
40 Controlled Substance Offense INA 212(a)(2)(A)(i)(II); 8 USC 1182(a)(2)(A)(i)(II) Conviction or admission Relating to Controlled substance (21 USC 802) No 30g marijuana exception! (But may be give fighting chance for some with relatives in US)
41 Controlled Substance Trafficker INA 212(a)(2)(C)(i); 8 USC 1182(a)(2)(C)(i) Government knows or has reason to believe Illicit trafficker Controlled substance/listed chemical in 21 USC 802 OR a knowing aider, abettor, assister, conspirator, colluder
42 Exercise The following acts are hereby prohibited: (i) the possession of a small amount of marijuana only for personal use; (ii) the possession of a small amount of marijuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marijuana but not for sale. For purposes of this subsection, thirty (30) grams of marijuana shall be considered a small amount of marijuana. Undocumented client: Inadmissible?
43 Drug Offense Inadmissibility Strategies Best practice is to avoid any drug-related conviction. Period. Specify a substance that is not covered under 21 U.S.C If client with citizen/lpr parent/spouse/child is facing a marijuana charge and you absolutely cannot avoid conviction, it may help to limit conviction to simple possession of 30 grams or less of marijuana check with immigration practitioner!
44 Drug Offenses General Strategies Negotiate diversion without a guilty plea (to avoid conviction ) Offer alternate plea to free-standing accessory offense In some cases, plea to accompanying non-drug charge may be better
45 Exercise Undocumented client Charged with drug possession and gun possession Strategy?
46 Exercise LPR client Charged with drug possession and gun possession Strategy?
Immigration Consequences of Drug Offenses: Handout Introduction -- Immigration Consequences of Drug Offenses Presenters: -- Drug offenses have some of the most serious and unforgiving immigration consequences.
Immigration Consequences of Domestic Violence & Related Offenses Presented by NACDL & the DEFENDING IMMIGRANTS PARTNERSHIP FEBRUARY 1, 2012 Presenters Dan Kesselbrenner, National Immigration Project of
Representing Immigrant Defendants After Padilla v. Kentucky Training Agenda Padilla v. Kentucky (130 S. Ct. 1473) How to integrate immigration consequences into your practice Basic introduction to immigration
IMMIGRANTS & PLEAS IN PROBLEM-SOLVING COURTS: A GUIDE FOR NONCITIZEN DEFENDANTS & THEIR ADVOCATES Prepared by the New York State Defenders Association Immigrant Defense Project Last Updated August 2007
Immigration Consequences of Criminal Conduct AGENCIES AND DEPARTMENTS DHS: U.S. Citizenship and Immigration Services (USCIS) Administering immigration benefits and services is primary focus Services include
PRACTICE ADVISORY 1 FOR VIRGINIA CRIMINAL DEFENDERS: IMMIGRATION EXECUTIVE ACTION Prepared by Heidi Altman and Morgan Macdonald CAIR Coalition, Virginia Justice Program December 10, 2014 On November 20,
PRACTICE ADVISORY 1 October 2015 NEW CALIFORNIA DRUG PROVISION HELPS IMMIGRANTS: PLEA WITHDRAWAL AFTER DEFERRED ENTRY OF JUDGMENT (DEJ) By Kathy Brady, and Michael K. Mehr, Law Office of Michael K. Mehr
A GUIDE* FOR NEW YORK STATE CRIMINAL DEFENSE ATTORNEYS: HOW MELLOULI V. LYNCH IMPACTS CONTROLLED SUBSTANCE 1 CASES FOR YOUR IMMIGRANT 2 CLIENTS Introduction On June 1, 2015, the United States Supreme Court
(For more information, see Defending Immigrants in the Ninth Circuit, Chapter 3, www.ilrc.org/criminal.php) Table of Contents I. Penalties for Drug Offenses: Deportable, Inadmissible, Aggravated Felony,
u.s. Department of Homeland Security U.S. Citizenship and Immigration Scrvicc~ Office oj Administrative Appeals 20 Massachusetts Ave., N.W.. MS 2OYO Washington. DC 20529-2090 u.s. Citizenship and Immigration
Immigration Consequences of Criminal Conduct for the Appellate Attorney CPCS Immigration Impact Unit 2012 Topics of Discussion Types of Immigration Status Immigration Terms of Art Immigration Consequences
Good Moral Character and Criminal Issues in Naturalization C. Lynn Calder (DL), Raleigh, NC Gus M. Shihab, Columbus, OH JoJo Annobil, New York, NY Imperfect Naturalization: Analyzing the Risks of Naturalizing
N.8 Controlled Substances (For more information, see Defending Immigrants in the Ninth Circuit, Chapter 3, www.ilrc.org/criminal.php) A. Overview of Penalties for Drug Offenses B. Key Defense Strategies:
H&S Code Section 11352 Article Defined California Health and Safety Code section 11352 states, in pertinent part: Except as otherwise provided in this division, every person who transports, imports into
Understanding the Criminal Bars to the Deferred Action Policy for Childhood Arrivals 1. What are the criminal bars for deferred action? In addition to a number of other requirements, to qualify for deferred
Common Criminal Grounds of Removal: These grounds are enumerated in Immigration & Nationality Act (INA) 212(a)(2), 8 USC 1182(a)(2) (inadmissibility) and INA 237(a)(2), 8 USC 1227(a)(2) (deportability):
Washington Defender Association s Immigration Project 110 Prefontaine Place S., Suite 610, Seattle, Washington 98104 www.defensenet.org/immigration-project Ann Benson, Directing Attorney email@example.com
IMMIGRATION CONSEQUENCES OF SELECTED FLORIDA OFFENSES: A QUICK REFERENCE CHART 1 Disclaimer: Immigration consequences of crimes are a complex, unpredictable, and constantly changing area of law in which
Quick Reference Chart for Determining Immigration Consequences of Common New York Offenses APPENDIX A For information on the applicability of these consequences to a specific category of immigrants, see
Practice Advisory for Criminal Defenders: New Deferred Action for Parental Accountability (DAPA) Immigration Program Announced by President Obama What Is Deferred Action for Parental Accountability (DAPA)?
Immigrant Legal Resource Center QUICK REFERENCE CHART For Determining Key Immigration Consequences Of Selected California Offenses 1 January 2016 For suggestions or questions about the Chart, write firstname.lastname@example.org
Introduction to Analyzing Immigration Consequences of Crimes Dallas, TX March 25, 2014 PRESENTERS Sarah Bronstein Oakland, CA email@example.com Susan Schreiber Chicago, IL firstname.lastname@example.org
Quick Reference Chart for Determining Immigration Consequences of Common New York s Quick Reference Chart for Determining Immigration Consequences of Common New York s A P P E N D I X A For information
Immigration Consequences of Criminal Convictions Rehan Alimohammad, Partner 281-340-2074 email@example.com Immigration Law Corporate Law Tax Law Estate Planning Family Law Litigation Speaker Our Team
RULES OF SUPREME COURT OF VIRGINIA PART THREE A CRIMINAL PRACTICE AND PROCEDURE APPENDIX Form 6. Suggested Questions to Be Put by the Court to an Accused Who Has Pleaded Guilty (Rule 3A:8). Before accepting
How a Criminal Conviction Will Impact Your Client s Future Immigration Status Mary Kramer, Law Offices of Mary Kramer, Miami, FL Mary Kramer, Attorney at Law Miami, Florida **author, The Immigration Consequences
ENROLLED Regular Session, 1997 HOUSE BILL NO. 2412 BY REPRESENTATIVE JACK SMITH AN ACT To enact Chapter 33 of Title 13 of the Louisiana Revised Statutes of 1950, comprised of R.S. 13:5301 through 5304,
A BRIEF GUIDE TO REPRESENTING NONCITIZEN CRIMINAL DEFENDANTS IN CONNECTICUT (Revised 09/01/2005) Prepared by Jorge L. Barón, New Haven Legal Assistance Association Alix Walmsley, Office of the Public Defender,
Chapter 1: Overview 1.1 Purpose of Manual 2 1.2 Role of Defense Counsel 2 A. Practice Standards and Cases Recognize Defense Counsel s Role B. More Noncitizen Clients May Face Adverse Immigration Consequences
Immigration Consequences of State Criminal Convictions Elizabeth L. Young Assistant Professor Certain criminal convictions can cause a foreign national to be deemed deportable from the United States. 1
and Immigration Detention; When to Obtain Release from Criminal Incarceration, and When Not To By Michael K. Mehr and Katherine Brady For more information about immigration holds/detainers, and state enforcement
Quick Reference Chart for Determining A P P E N D I X Immigration Consequences of Common New York s (Updated Jan. 2016) Quick Reference Chart for Determining Immigration Consequences This chart is intended
APPENDIX A Quick Reference Chart for Determining Key Immigration Consequences of Common New York s For information on the applicability of these consequences to a specific noncitizen, see Chapter 3. For
OVERVIEW OF IMMIGRATION LAW RELATING TO CRIMINAL OFFENSES Presented by the Houston Office of Chief Counsel Immigration and Customs Enforcement Department of Homeland Security I. The Law The Immigration
Removal Defense and Florida Drug Crimes: Applying the Categorical Approach By Rebecca Sharpless* University of Miami School of Law December 2013 This practice advisory discusses defenses to removal for
Considerations When Representing Foreign Nationals in Criminal Proceedings by Jeffrey Y. Bennett (www.jybennettlaw.com) Padilla v. Kentucky, 130 S. Ct. 1473 (2010), is a case in which the US Supreme Court
PADILLA V. KENTUCKY: WHAT IT MEANS FOR CRIMINAL DEFENSE LAWYERS Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges,
UNDERSTANDING THE CRIMINAL JUSTICE SYSTEM Anne Benson What is the Criminal Justice System? The criminal justice system is the system we have in the United States for addressing situations where it is believed
A PRIMER: WHAT STATE DEFENDERS MUST KNOW ABOUT FEDERAL LAW Wendy Holton Attorney, Helena, Montana WHolton@mt.net If you practice state criminal law you must have a basic understanding of federal law. PART
Matter of Jennifer Adassa DAVEY, Respondent Decided October 23, 2012 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals (1) For purposes of section 237(a)(2)(B)(i)
THE SUPERIOR COURT OF ARIZONA MARICOPA COUNTY STATE OF ARIZONA CASE NO: CR v. APPLICATION TO: DEFENDANT RESTORE CIVIL RIGHTS RESTORE GUN RIGHTS Complete and Date of Birth: Attach Request to Restore Right
DRUG COURT DEFERRED JUDGMENT INFORMATION SHEET If you have been charged with a crime involving possession of a controlled substance and/or possession of drug paraphernalia, you may be eligible to participate
Alcohol and Controlled Substance Policy and Procedures Subject: Alcohol and Controlled Substance Policy ( Controlled substance is used rather than drug as drugs technically refer to any chemical substance
CHALLENGING CRIMINAL HISTORY CALCULATIONS I. Challenging Predicates for Career Offender! The Basic Rule for Career Offender 4B1.1 A defendant is a career offender if: 1. The defendant is at least 18 years
Learn, Share, Fight Back: The Short Immigration Guide to How Arrests & Convictions Separate Families Many of us know family members and friends who have been detained and deported because of arrests and
BEFORE THE SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT PANEL B IN RE: BELINDA BETH BURRIS ARKANSAS BAR ID No. 2007047 CPC Docket No. 2015-034 FINDINGS AND ORDER Belinda Beth Burris is an attorney from
If You Have Been Charged with a Crime in Florida, Familiarizing Yourself with Your Charges and the Potential Penalties If You are Convicted is the First Step to Making Yourself More Informed, Empowered
THE LAW OFFICES OF SCOTT L. KRAMER CRIMINAL DEFENSE FAQ ANSWERS FROM AN DELAWARE COUNTY ATTORNEY: QUESTION: Am I required to allow law enforcement be allowed to search my house or my car? No. You are never
LOCAL AND FEDERAL LAWS PERTAINING TO ALCOHOL AND DRUGS Following is a brief summary of District of Columbia and federal laws pertaining to alcohol and drugs. This is not an exhaustive list and is subject
U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Special Report Federal Justice Statistics Program Federal Drug Offenders, 999 with Trends 984-99 August 200, NCJ 87285
The Right to a Speedy Trial You have a constitutional right to a speedy trial in the United States and in New Jersey. You also have a right to see ALL of the evidence against you prior your date in court.
The Consequences of a Juvenile Delinquency Record in Minnesota 1. Is it true that a juvenile delinquency record will not limit a young person s future opportunities in Minnesota? No, it is not true. Although
First Regular Session Sixty-ninth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 1-00.01 Michael Dohr x SENATE BILL 1-0 SENATE SPONSORSHIP Steadman and King, Aguilar, Guzman, Newell, Ulibarri Levy,
BASIC CRIMINAL LAW Overview of a criminal case Presented by: Joe Bodiford Board Certified Criminal Trial Lawyer www.floridacriminaldefense.com www.blawgger.com THE FLORIDA CRIMINAL PROCESS Source: http://www.fsu.edu/~crimdo/cj-flowchart.html
OLMSTED COUNTY ATTORNEY DOMESTIC ABUSE PROSECUTION POLICY POLICY STATEMENT: It is the policy of the Olmsted County Attorney to pursue all domestic abuse allegations with zealous, yet discretionary prosecution
THE SUPERIOR COURT OF ARIZONA MARICOPA COUNTY STATE OF ARIZONA CASE NO: CR v. APPLICATION TO: DEFENDANT RESTORE CIVIL RIGHTS RESTORE GUN RIGHTS Complete and Date of Birth: Attach Request to Restore Right
A BRIEF GUIDE TO REPRESENTING NON-CITIZEN CRIMINAL DEFENDANTS IN CONNEICUT (Revised May 2014) Prepared by Jorge L. Barón; 2014 Revisions by Ruth Swift and Grace Kao 1 Disclaimer: This brief guide is intended
Uses of State Criminal Court Records in Immigration Proceedings Steven Weller John A. Martin July 2011 Center for Public Policy Studies State court criminal case records routinely provide the information
Pro Se Advisory for Immigrants with Multiple Drug Possession Convictions: Instructions for Challenging Whether You Have Been Convicted of an Aggravated Felony Last updated October 17, 2007 This advisory
AS MUCH AS TIMES CHANGE FEDERAL DRUG CHARGES STAY THE SAME A White Paper Presented by Ron Cordova, Attorney-at-Law AN OVERVIEW OF FEDERAL DRUG CRIMES AND THE CONSEQUENCES OF CONVICTION California s stance
Filing Fee $117.00 Instructions for Sealing a Criminal Record Effective 1-1-2015 This packet is to be used to assist you in filing an application to seal your criminal record. * * * * * * * * * * * * *
SUBSTANCE ABUSE POLICY It is the policy of The Rockefeller University to make every effort to ensure a drug-free workplace in order to protect the health, safety, and welfare of its employees, its students,
Criminals and Immigration The Effects of Convictions on Immigration Status INITIAL CONSULTATION Determine immigration status of client. Determine immigration status of immediate family members, including
Select Florida Laws IMPORTANT NOTE: This is not necessarily a complete list. Laws frequently change, and these sentences may no longer be accurate or up to date. Talk with a lawyer in your state if you
Calculating the Then and Now In most cases, you will want to show, if possible, that the guideline range would be lower today. In some cases, the guideline range drives the original sentence because there
Hillsborough County Bar Association Criminal Law Section Presents: CRIMIGRATION: The Marriage of Immigration and Criminal Law Terry Clifton Christian, Esq. Former U.S. Immigration Judge and Board Certified
Select Missouri Mandatory Minimum Laws IMPORTANT NOTE: This is not necessarily a complete list. Laws frequently change, and these sentences may no longer be accurate or up to date. Talk with a lawyer in
People v King 2013 NY Slip Op 31577(U) June 28, 2013 Supreme Court, Kings County Docket Number: 4321/1986 Judge: William M. Harrington Republished from New York State Unified Court System's E-Courts Service.
Overview of Federal Criminal Cases Fiscal Year 2012 Glenn R. Schmitt Jennifer Dukes Office of Research and Data The United States Sentencing Commission 1 received information on 84,360 federal criminal
It s a Privilege to Drive: Snapshot of Impaired Driving in Montana Unlawful Acts Notes Montana Code Drive under the influence of drugs or alcohol: DUI Operate a noncommercial vehicle with excessive alcohol
PLATTSBURGH MENTAL HEALTH COURT PARTICIPANT CONTRACT I, have pled guilty to the crime of and will be sentenced to three years on Probation. [OR have admitted Violation of Probation OR have been charged
Introduction to Kentucky s Immigration Chart and Basic Immigration Concepts The Supreme Court s ruling in Padilla v. Kentucky requires defense counsel to provide affirmative, competent advice to a noncitizen
Restoration of Civil Rights Helping People regain their Civil Liberties Consequences of a Felony Food Stamps and social security benefits: People convicted of a felony for possession or sell of controlled
NJ Marijuana Defense 1. Could you please advise me as to the different types of marijuana possession charges that I could receive in New Jersey? New Jersey throws the book at people who are charged with
December 22, 2015 Office of Legislative Research Research Report 2015-R-0304 NEW YORK DRUG POSSESSION AND SALE CRIMES By: Christopher Reinhart, Chief Attorney ISSUE Summarize the penalties for drug possession
Wisconsin Operating While Intoxicated Law A Client's Guide to the Language and Procedure BAKKE NORMAN L A W O F F I C E S Welcome Thank you for considering Bakke Norman, S.C. to represent your interests.
LEGISLATURE OF THE STATE OF IDAHO Sixty-third Legislature First Regular Session - 0 IN THE SENATE SENATE BILL NO. 0 BY JUDICIARY AND RULES COMMITTEE 0 0 0 0 AN ACT RELATING TO DRIVING UNDER THE INFLUENCE;
DISTRICT OF COLUMBIA OFFICIAL CODE TITLE 48. FOOD AND DRUGS SUBTITLE III. ILLEGAL DRUGS CHAPTER 9. CONTROLLED SUBSTANCES UNIT A. CONTROLLED SUBSTANCES ACT SUBCHAPTER IV. OFFENSES AND PENALTIES 48-904.01.
REPRESENTING NONCITIZEN CRIMINAL DEFENDANTS: A NATIONAL GUIDE SUMMARY OF CONTENTS PREFACE ABOUT THE DEFENDING IMMIGRANTS PARTNERSHIP HOW TO USE THIS MANUAL WHERE TO GET HELP iii iv vi ix CHAPTER 1: CHAPTER
42 4 1301. Driving under the influence driving while impaired driving with excessive alcoholic content definitions penalties. (1) (a) It is a misdemeanor for any person who is under the influence of alcohol