1 Immigration Consequences of Criminal Conduct for the Appellate Attorney CPCS Immigration Impact Unit 2012
2 Topics of Discussion Types of Immigration Status Immigration Terms of Art Immigration Consequences of Criminal Offenses Post Conviction Relief
3 Understanding the Immigration Consequences of Criminal Conduct Requires Knowing: Immigration status Prior criminal history Pending charges
4 Topics of Discussion Types of Immigration Status Immigration Terms of Art Immigration Consequences of Criminal Offenses Post Conviction Relief
5 Types of Immigration Status Legal Permanent Resident Lawful Non-Immigrants U.S. Citizen Refugees & Asylees Temporary Protected Status Undocumented and Out of Status
6 Topics of Discussion Types of Immigration Status Immigration Terms of Art Immigration Consequences of Criminal Offenses Post Conviction Relief
7 Conviction A formal judgment of guilt or Where adjudication withheld: If defendant pleads guilty, nolo contendere or has admitted sufficient facts to warrant a finding of guilt, AND The judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. 8 U.S.C. 1101(a)(48)
8 MA Dispositions Under Federal Immigration Law Massachusetts Disposition CWOF Federal Immigration Law Conviction Pre-trial Probation (no admission) Not a conviction Guilty Filed Might not be a conviction
9 Juvenile Dispositions A finding of delinquency is not a conviction for immigration purposes A youthful offender adjudication may be a conviction for immigration purposes Some grounds of inadmiss/deport don t require a conviction, so juvenile dispositions can still have imm. conseq.
10 Sentence Under immigration law, a sentence includes any term of incarceration whether committed or suspended. EX: A 2 year sentence of imprisonment, 6 months to serve, the balance suspended for 1 year = a 2 year sentence of imprisonment.
11 Crime Involving Moral Turpitude Intent Reprehensible Conduct CIMT Matter of Silva-Trevino, 24 I&N Dec. 687 (2008)
12 Examples of Crimes Involving Moral Turpitude murder, manslaughter, assault to rob or kill, ADW, ABDW, most agg. assaults rape, indecent assault and battery, prostitution, failure to reg. arson, robbery, malicious destruction, larceny, shoplifting, any type of fraud or theft (with intent to permanently deprive)
13 Disorderly Conduct Assault & Battery NOT Crimes of Moral Turpitude Use without Authority Disturbing the Peace Simple OUI
14 Topics of Discussion Types of Immigration Status Immigration Terms of Art Immigration Consequences of Criminal Offenses Post Conviction Relief
15 Types of Consequences Removal of person who had been lawfully admitted to U.S. Removal of person seeking adjustment to permanent resident Denial of admission Bar to naturalization Loss of visa or temporary legal status Denial of asylum
16 Inadmissibility v. Deportability If client has been lawfully admitted to the U.S. (LPR, Visa, etc.), may be charged with grounds of deportability (e.g., loss of status) pursuant to 8 USC If client is seeking entry or lawful admission to the U.S., may be charged with grounds of inadmissibility (bar to obtaining an immigration benefit) pursuant to 8 USC 1182.
17 Primary Crime-Related Provisions of Immigration Law 8 USC 1182(a)(2) grounds of inadmissibility 8 USC 1227(a)(2) grounds of deportability 8 USC 1101(a)(43) aggravated felony statute
18 Grounds of Inadmissibility and Deportability Inadmissibility (8 USC 1182) Deportability (8 USC 1227) Crimes involving moral turpitude Crimes involving moral turpitude Controlled Substance Offense Controlled Substance Offense Prostitution related offenses Conviction of multiple offenses (5 years or more) Firearms offenses Domestic Violence offenses Aggravated Felonies
19 Inadmissible Offenses: Crime Involving Moral Turpitude A person is inadmissible based on 1 crime involving moral turpitude Petty offense exception: One crime committed when under 18 years old and at least 5 years before admission or Maximum possible penalty is one year or less and sentence is 6 months or less
20 Inadmissible Offenses: Controlled Substances Violation of any law RELATING TO controlled substances Any alien who the AG has reason to believe is a drug trafficker.
21 Inadmissible Offenses: Prostitution Engaging in prostitution Procuring a prostitute Receiving the profits from prostitution (pimps)
22 Inadmissible Offenses: Multiple Offenses Multiple offenses - 2 or more convictions for which aggregate sentence is more than 5 years
23 Deportable Offenses: Crime Involving Moral Turpitude One CIMT within 5 years of admission, where a sentence of at least one year may be imposed OR Two CIMTs at any time, not arising out of a single scheme of criminal misconduct
24 Deportable Offenses: Controlled Substance Offenses Conviction for ANY drug offense makes a person deportable - Except 1 offense of 30 grams or less of marijuana - Includes conspiracy or attempt
25 Deportable Offenses: Firearm Offenses Includes a conviction for any crime of buying, selling, using, owning, possessing or carrying any firearm or destructive device Includes conspiracy and attempt May also include crimes for which possession or use of a firearm is an element of the offense
26 Deportable Offenses: Domestic Violence Includes conviction for: Crime of domestic violence Stalking Child abuse Child neglect Child abandonment or Violation of criminal or civil protective orders
27 Aggravated Felony To be avoided at all costs! 8 U.S.C.1101(a)(43) federal statutory definition Minor offense can be AF Misdemeanor can be AF
28 Aggravated Felony Consequences Nearly automatic deportation Permanent exile from the U.S. Bar to almost every form of relief from deportation Mandatory detention.
29 Aggravated Felony cont d Conviction-based AFs Conviction of specified offense Sentence-based AFs Conviction of specified offense + sentence of imprisonment of one year or more
30 Aggravated Felony cont d Common Convictionbased Murder Rape Sexual abuse of a minor Drug Trafficking (any offense other than simple possession) Common Sentencebased Crimes of violence Theft offenses Burglary; B&E in a building. Witness Intimidation
31 Topics of Discussion Types of Immigration Status Immigration Terms of Art Immigration Consequences of Criminal Offenses Post Conviction Relief
32 Immigration Related Post Conviction Relief PCR Motions to Revise and Revoke (Rule 29) Motions for New Trial (Rule 30)
33 Revise and Revoke Rule 29 motion is used when the sentence, not the conviction, is what has caused immigration problems. Ex: A&B with a 1 year sentence is AF A&B with 364 day or less sentence is not AF
34 Revise and Revoke A motion to revise and revoke shall be granted if it appears justice has not been done. Must be based on facts that existed at time of original sentencing
35 Revise and Revoke Motion and affidavit must be filed within 60 days of sentence or loss of appeal
36 Important R&R case law Commonwealth v. Stubbs, 15 Mass. App. Ct. 955 (1983) Commonwealth v. Dejesus, 440 Mass 147 (2003) Matter of Song, 23 I&N Dec. 173 (BIA 2001)
37 Padilla Motions Rule 30 motion for new trial Used when the conviction itself causes immigration consequences EX: conviction for distribution of a controlled substance
38 Where do Padilla motions come from? Padilla v. Kentucky, 130 S. Ct (2010) 6 th A duty to advise client of immigration consequences prior to pleading guilty Failure to advise is ineffective assistance of counsel!
39 Padilla motion requirements Padilla applied the two-prong test for IAC established in Strickland v. Washington, 466 US 668 (1984) and adopted in Commonwealth v. Saferian, 366 Mass. 89, (1974): Deficient performance (counsel s representation fell below an objective standard of reasonableness. ) Prejudice ( but for counsel s unprofessional errors, the result of the proceeding would have been different. )
40 Deficient Performance What is deficient performance? Affirmative mis-advice Failure to give specific advice (no general warnings) How to show deficient performance? Affidavits showing Counsel s failure to inquire about immigration status Counsel s mis-advice That counsel gave only very general warnings (i.e. read the green sheet)
41 Affidavit of Trial Counsel Very general Very specific None at all
42 Prejudice D must show that but for counsel s deficient performance, the proceedings would have been different.
43 How do you show prejudice? D must aver that he would have rejected the plea and gone to trial. and D must show it would have been rational to reject the plea bargain due to: - Substantial ground of defense that would have been pursued at trial; - Reasonable probability that a different plea bargain could have been negotiated; or - Special circumstances that show D placed particular emphasis on immigration consequences. Commonwealth v. Clarke, 460 Mass. 30 (2011)
44 What you must know to screen for a Padilla motion Client s status at time of plea Client s prior record Charges to which client pleaded guilty Whether client received immigration advice. If so, what was the advice?
45 Other issues raised by Padilla Retroactivity? Do the alien warnings cure? What if the client went to trial?
46 Alien Warnings D motion Were the warnings given? If no warnings, may the defendant suffer the consequences about which he was not warned?
47 Was the warning given as required by 278/29D? Presumption of regularity does not apply because G.L. c. 278, 29D explicitly states that absent a record that judicial warnings were given, the defendant is presumed not to have received them. Commonwealth v. Grannum, 457 Mass. 128 (2010)
48 Reconstructing the record Pre-2004 Post-2004 Allowed to reconstruct the record Not allowed to reconstruct the record
49 May have or has had consequences Defendant must prove that he faces more than a hypothetical risk that one or more of the enumerated consequences will occur. - Commonwealth v. Berthold, 441 Mass. 183 (2004) - Commonwealth v. Grannum, 457 Mass. 128 (2010)
50 Suffering the consequences Deportation Statutory cites NOT enough ICE detainer Notice to Appear Order of Removal Express written policies of the federal government
51 Suffering the consequences Exclusion Statutory citations may be enough Intent to travel abroad Denial of Natz Statutory citations may be enough Intent to apply for natz Intent to apply for green card
52 Gautreaux Failure to contact consulate could be grounds for a rule 30 motion. Problem will be showing prejudice Don t know of any cases arguing this yet
53 Other Issues Habeing a defendant into court from immigration custody for motion hearing Timing of a motion deportation while pending Client s job in immigration court
54 Resources CPCS Immigration Impact Unit 21 McGrath Highway Somerville, MA TEL: FAX: