Crimmigration: Red Flags for Criminal Defense Attorneys Representing Non U.S. Citizens

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1 Crimmigration: Red Flags For Criminal Defense Attorneys representing Non U.S. Citizens Crimmigration: Red Flags for Criminal Defense Attorneys Representing Non U.S. Citizens JoJo Annobil Legal Aid Society New York, NY Cecillia Wang ACLU Immigrants Rights Project San Francisco, CA Rekha Sharma-Crawford Sharma-Crawford Attorneys at Law Kansas City, MO I. Introduction For the past seventeen years United States immigration laws have changed dramatically, most noticeably in the areas of detention and removal (deportation) of non-citizens with criminal 1

2 convictions. Any criminal client who is not a United States citizen, and is convicted of a certain crime or crimes can be subject to serious immigration consequences. The most serious and most common immigration consequences of a criminal conviction is deportation. However, there are other consequences, such as denial of admission at the border or port of entry if the client is returning to the United States, or denial of a client s application for legal permanent residence (a green card ) or for U. S. citizenship. Removal from the United States based on criminal convictions has vastly increased over the last 20 years and has increased exponentially over the last 10 years. In 1986, the US removed 978 non citizens based on criminal convictions. That year the total number of removals was 24,592. In 2012, 225,000 non citizens with criminal convictions were removed out of a total of 409,849 total removals. Non citizen criminal defendants facing criminal charges are more concerned about the immigration consequences of a criminal conviction than the criminal sanction. For example, a person who has resided in this country for 25 years with a green card, who is married to a U.S. citizen and has U.S. citizen children, is deportable if he or she is convicted of certain crimes. Criminal defense attorneys must remember that a green card is not enough to insulate a client from deportation. Because not all criminal defendants are United States citizens, it is critically important that criminal defense attorneys and their clients understand the immigration consequences of criminal convictions, even for marijuana violations which are not crimes. Immigrant clients rely on their criminal defense attorneys for accurate advice; by being aware of the immigration consequences of a criminal conviction, criminal defense attorneys will be able to fulfill their Sixth Amendment constitutional obligation and offer full and accurate information to their non citizen clients. II. Federal Immigration Agencies, Law, and Regulations On November 25, 2002, President Bush signed the Homeland Security Act of 2002 into law. The Homeland Security Act created the Department of Homeland Security (DHS), which through its various subdivisions, handles most immigration matters. Before the passage of the Homeland Security Act, the Immigration and Naturalization Service (INS) (which was housed in the Department of Justice) handled the majority of domestic immigration matters. The Homeland Security Act eliminated the INS and created several distinct entities within the DHS that perform different immigration related functions. The new immigration entities within the DHS include the United States Citizenship and Immigration Services (USCIS), which administers immigration benefits, the United States Immigration and Customs Enforcement (USICE), which enforces immigration laws in the interior, and the United States Customs and Border Protection (USCBP), which handles inspections at ports of entry and monitors the borders for illegal entry of persons and contraband. Immigration law is governed by the Immigration and Nationality Act (INA), which is codified at Title 8 of the United States Code. The Federal Regulations implementing the INA are in Title 8 of the Code of Federal Regulations. III. Determining Your Clients Immigration Status Intake procedures in many criminal defender offices do not include questions about immigration status. Failure to inquire about a criminal defendant s immigration status could inadvertently 2

3 harm non-citizens. At the earliest possible moment, when you interview a client, you must ascertain your non citizen client s place of birth. You should never rely on a client s appearance, fluency in the English language, or lack of a foreign accent to determine that a client is a U.S. citizen. Many legal permanent residents have been in this country since infancy or childhood, and appear to be as American as someone who has been born and raised in the United States. a. Explain Confidentiality Be mindful that a non citizen client may be surprised that you are inquiring about their immigration status. They may even resist answering for fear that you may report them to the Department of Homeland Security (DHS). In order to overcome your client s hesitation to disclose immigration related information, discuss your duty of confidentiality. See Model Rules of Professional Conduct Rule 1.6. b. Interviewing a Client Develop a practice of asking basic immigration related questions. i. Avoid confusing questions that often call for legal conclusions: 1. Do you have your papers? 2. Are you legal? 3. Where are you from? ii. Instead ask: 1. Where were you born? 2. Do you have a green card? 3. When did you arrive in the US? 4. Where was your spouse, child, and or parent born? 5. Have you ever been to immigration court? 6. Have you ever been arrested? IV. Types of Immigration Status and How To Verify Your Client s Immigration Status a. U.S. Citizenship There are several ways one can become a U.S. Citizen (USC). U.S. citizenship can be obtained by birth in the US, Puerto Rico, U.S. Virgin Islands and Guam, naturalization, acquisition or by derivation. Naturalization is the process of applying for citizenship after having obtained lawful permanent residence. Acquisition of citizenship can occur when a child is born abroad to a USC. See INA 301(c), INA 301(g), 309(a), 309(c). The applicable rules depend on the citizenship, gender, and length of residence of the parents. An application for a certificate of citizenship must be filed with USCIS. Derivation occurs when the parents of a green card holder obtain US citizenship while the child is under the age of 18, provided the LPR child is under the legal and physical custody of the USC parent. Note: The child who derives citizenship can file for a certificate of citizenship or a U.S. passport. 3

4 i. What documents prove US Citizenship? Any of the following can demonstrate U.S. Citizenship: - U.S. birth certificate, - Certificate of naturalization, - Certificate of citizenship and/or - U.S. passport. (See Exhibit A) Generally speaking, a person who is not a U.S citizen will fit into one of the following categories: b. Lawful Permanent Residence (Green Card) Non-citizens with lawful permanent residence (LPRs) are authorized to live and work in the United States indefinitely, but they can lose their lawful permanent residence status and be deported if they commit certain types of crimes that trigger grounds of deportability or inadmissibility or stay abroad for too long. People who have been LPRs for 5 years (or less in some cases) may apply to naturalize, or become U.S. citizens. i. What documents prove LPR status? 1. Green cards (actually come in a variety of colors, depending on when they were issued. The most recent one issued is actually green.) (see Exhibit B) Note: Green cards used to be issued without expiration dates. Now they do have expiration dates, usually 10 years from the date the card was issued. On the expiration date, only the card expires - the green cardholder s status as an LPR does not expire (except for green cards issued only for 2 years; such 2-year green cards only confer conditional permanent residency). 2. Documentary evidence of residency may come in several forms: a. I-551 stamp in foreign passport (see attached sample) b. Lawful Temporary Resident Card (I-688) with a permanent resident sticker c. Form I-94 Arrival/Departure Record with a photo and a stamp of Temporary Evidence of Permanent Resident Status, I-551" (see attached sample) c. Visa Holders (Non-immigrants) Non citizens with visas enter the country as a students, visitors or tourists. They are lawfully present in the United States for a limited period of time and for a designated purpose, such as visiting or going to school. They are called non-immigrants because the term immigrant refers to individuals who intend to remain in the U.S. permanently. If a non-immigrant stays past the period authorized at entry at the U.S. border or engages in unauthorized activities (e.g., working without permission while here on a visitor or student visa), he or she is said to be out of status and can be placed in removal (i.e., deportation) proceedings. a. Documentary Evidence of Non-immigrant Status: 4

5 i. Foreign passport with non-immigrant visa and I-94 Arrival/Departure Record (the visa and I-94 may be attached to the passport or they may be separate) (see Exhibit C); the visa and the I-94 bear a code that indicates the visa type (e.g., B-1 visas are for visitors for business; B-2 visas are for visitors for pleasure; F-1 visas are for academic students) ii. Note: The expiration date on the I-94, not the expiration date on the visa, determines the expiration of the visitor s period of authorized stay. d) Temporary Protected Status and Deferred Enforced Departure Temporary Protected Status (TPS) is a form of temporary lawful status granted to nationals (who meet certain criteria) of designated countries (or parts thereof) to which it would be very dangerous to return due to armed conflict, environmental disasters, or other extraordinary and temporary conditions. The Attorney General designates the countries whose nationals may be eligible for TPS. During the period for which the Attorney General has designated a country under the TPS program, TPS beneficiaries are not required to leave the United States and may obtain work authorization. When the Attorney General terminates a country s TPS designation, beneficiaries lose TPS status. a. TPS Designated Countries: Nicaragua, El Salvador, Honduras, Somalia, Sudan, Haiti, South Sudan, most recently and Syria. The registration period for Syria will close on September 25, See 77 Federal Register Notice 61. b. Deferred Enforced Departure Deferred Enforced Departure is granted at the discretion of the President of the U.S. typically for humanitarian reasons. This is not an immigration status, but it does allow individuals from designated countries to remain for limited periods in the U. S. Nationals of Liberia (a former TPS designated country) as of September 30, 2007 have been granted Deferred Enforced Departure which provides them with permission to remain temporarily and provides employment authorization for 18 months (through March 31, 2013). c. What documents prove TPS/ DED? i. Employment Authorization Document (see discussion in section X below) bearing the code 274a.12(a)(12) or just (a)(12) 1. Please note that an EAD card proves the status of a U visa and T visa status holder. (See Discussion below of both statuses.) I. Note on Employment Authorization Documents (EADs) a. People with unexpired EADs may not have lawful immigration status. An Employment Authorization Document (EAD) is a card that permits its holder to work legally in the U.S. (see attached samples). For some clients the only official documentation they have is an EAD. The fact that a person has a valid EAD, however, does not necessarily mean that he or she is in a lawful immigration status. In many cases, an EAD is issued to someone because he or she has applied for, but not yet 5

6 received, some form of lawful immigration status. If the application is subsequently denied, it is the applicant s obligation to discontinue use of the EAD. In many cases, though, the applicant may not discontinue use of the EAD or may not realize that the application was denied. Therefore, a person may have an EAD that appears to be valid (i.e., it is not expired), when in fact it is no longer valid because the application which permitted the person to obtain the EAD has been denied. b. Codes on EADs EADs bear a code that indicates the section of the Code of Federal Regulations (CFR) pursuant to which they were issued. Some cards show the full CFR section (e.g., 274a.12(a)(5) is for people granted asylum; 274a.12(c)(9) is for people who have applied for LPR status, 274a.12(a)(19) or 274a.12(a)(20) is for U visa grantees, while others just show the last two subsections (e.g., (a)(5), (c)(9), (a)(19) or (a)(20)0 c. LPRs do not need EADs in order to work legally. e) Asylum and Refugee Status Non citizens who have experienced past persecution or have a well-founded fear of future persecution in their home countries may apply for asylee or refugee status. People who are already in the U.S. may apply for asylum. People who are still outside the U.S. may apply for refugee status. People who are granted asylee or refugee status may remain in the U.S. indefinitely and receive work authorization indefinitely. They may apply for permanent resident status one year after being granted asylee or refugee status. Note: There are many other forms of lawful status and it is sometimes complicated to determine whether or not a person has such status. You should direct any inquiries about a client s immigration status to an immigration attorney or a legal service provider competent in immigration matters. V. How Clients Are Placed in Removal Proceedings Under the Immigration and Nationality Act, non-citizens can be removed (deported) from the United States if they violate either the statutory grounds of inadmissibility or deportability. Generally, clients fall within inadmissibility grounds when (1) they make an initial application to enter the United States lawfully; (2) travel abroad as lawful permanent residents and are placed in deferred inspection because of criminal convictions or immigration violations upon return to the country, or (3) are in the United States and make an application for legal status. Clients fall under deportability grounds if they have been inspected and admitted into the US as lawful permanent residents or visitors. 6

7 If your client is here without legal status, your client can face removal at any time simply based on her lack of status. Even if your client has legal status, including lawful permanent residence, your client may face removal if s/he has a criminal conviction. Clients come to the attention of the immigration authorities in a number of ways: A. Traveling Abroad - Upon re-entering the United States, all non-citizens have to go through DHS inspection. Many non-citizens who in the past have traveled to their home countries in the past have done so without any problems. Since 1996, the DHS has updated its computers and have access to criminal records and prior orders of deportation. If your clients have criminal convictions, they should consult an immigration practitioner before traveling abroad. NOTE: There is no statute of limitations under the immigration laws. Your client may be stopped for convictions that occurred many years ago. B. Interviewed While Serving Time - The DHS has officers present at most state, city and local jails and prisons. Once your client is serving any time, they are likely to be interviewed by DHS officials and placed into removal proceedings if there is a basis under the immigration laws to do so. NOTE: The DHS officer will first place a DHS detainer on your client. Once your client has completed his/her sentence, s/he will be transferred to DHS custody. Please see Mandatory Detention discussion below. A detainer will prevent your client from being released and allowed to participate in most drug or rehabilitation programs. C. Applications to USCIS - Most, if not all, applications to the United States Citizenship and Immigration Services (USCIS) now require security clearances and/or fingerprints to be taken as part of the application process. This includes applications for citizenship, renewal of green cards and employment authorization documents. USCIS now uses very sophisticated databases for their security clearances which can identify old criminal convictions from anywhere in the U.S. When fingerprints are taken, a RAP sheet is generated. If the applicant has a conviction, the application is likely to be denied and the applicant very likely will be placed in removal proceedings. We are hearing about more and more cases of persons being picked up and detained at USCIS interviews. D. Prior Orders of Deportation - DHS has a campaign to apprehend persons who have not surrendered for deportation despite an order of deportation. Many clients may not even know that they have been ordered deported or they may think that because the deportation order was entered many years ago it is no longer a problem. Persons with prior orders of deportation have been entered onto a national Absconder data base. Immigration authorities have been working together with local law enforcement to identify and apprehend absconders whether they get stopped at a border or due to a traffic violation. 7

8 E. Secure Communities (S. Comm) - is a federal enforcement tool designed to facilitate the identification and deportation of non citizens with serious criminal convictions. States are required under the program to provide information regarding arrests of citizens and non citizens to the Federal Bureau of Investigation. This information becomes part of the National Criminal Information Center s (NCIC) data base which is available to the DHS. As a result of Secure Communities many more non citizens are identified for removal at the arrest or arraignment stage of a criminal proceeding and ICE warrants/detainers are lodged to ensure that removal proceedings are commenced soon after the criminal case is completed. VI. IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS Deportability versus Inadmissibility: Under the Immigration and Nationality Act, non-citizens can be removed from the United States if they violate either the statutory grounds of inadmissibility or deportability. The inadmissibility grounds apply to non-citizens who (1) make an initial application to enter the United States lawfully, (2) travel abroad as lawful permanent residents and get stopped by immigration authorities at a port of entry where they try to reenter the country, or (3) are in the United States and make an application for legal status. The deportability grounds apply to non-citizens who have been legally admitted into the U.S. as lawful permanent residents or visitors. Criminal Grounds of Deportability INA 237: A. Crimes Which Will Likely Render a Non Citizen Mandatorily Removable, Including Lawful Permanent Residents 1. Aggravated Felonies: 1 A conviction, an attempt, or a conspiracy to commit an act defined as an aggravated felony has the most serious immigration consequences of any kind of conviction. See 8 U.S.C. 1101(a)(43). An aggravated felony conviction will bar your client from most forms of relief and will likely make your client subject to mandatory removable. The term aggravated felony as used here is an immigration term and has no relation or connection to the definition of a felony in state criminal law. A crime can be considered an aggravated felony even if it is a misdemeanor under the New York penal law. Many of the following crimes become aggravated felonies if the sentence is for one year or more. This applies even if the sentence is suspended. If you are able to get a sentence of 364 days or less, it may help your client remain eligible for relief. 1 This list is not exhaustive, as it omits a number of federal offenses. 8

9 Aggravated felonies are generally defined with reference to a federal definition of a crime. There are sometimes challenges to charges that an individual is deportable based on a conviction of an aggravated felony by comparing the state conviction to the federal definition of a crime. The government generally proves its charges against your client based on the record of conviction. The record of conviction for immigration purposes generally includes a charging document, plea agreement, a verdict or judgment of conviction, a record of the sentence, or a plea colloquy transcript. Note: The 2d. Circuit has held that a pre-sentence report (PSR) is not part of the record of conviction and cannot be used to prove the charges against your client. See Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. 2003). However, note that the PSR may still be used in other circuits where many of your clients may be litigating their immigration cases. Murder, rape or sexual abuse of a minor (INA 101(a)(43)(A); Sexual abuse of a minor (felony or misdemeanor) - State sex offense involving a minor is not sexual abuse of a minor if it does not contain the same elements as the federal offense of sexual abuse of a minor. See INA 101(a)(43)(A). The Board of Immigration Appeals has held that a minor is a victim of sexual abuse who is under the age of 18 years. Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006). Drug Trafficking - It is clear that any drug sale or possession with intent to sell will be considered aggravated felonies. The Supreme Court recently held that a first-time state simple felony or misdemeanor drug possession is not an aggravated felony. The law is also clear that two or more simple possessions, including marijuana, does not constitute aggravated felonies. Carachuri-Rosendo v. Holder, 560 U.S. (June 2010) Any Firearms Trafficking Offense (e.g., sale, distribution) (INA 101(a)(43)(C)); Crimes of violence for which the penalty imposed is at least one year (felony or misdemeanor). Defined in 18 U.S.C. 16 to include (a) an offense that has as an element the use, attempted use, or threatened use of physical force against a person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense (INA 101(a)(43)(F)); Note: The 2d Circuit has held that a conviction of involuntary manslaughter in the second degree under New York Penal Law (1) is categorically NOT a crime of violence because the minimum criminal conduct required does not necessarily present a substantial risk that physical force will be used. See Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003). 9

10 Theft or Burglary for which the penalty imposed is imprisonment for at least one year (felony or misdemeanor): Theft and burglary have been defined by federal courts with reference to the federal definition of theft. It is sometimes possible to argue that a state offense does not fall within the generic definition of theft or burglary (INA 101(a)(43)(G)); Prostitution Business: Crimes related to owning, controlling, managing or supervising a prostitution business (INA 101(a)(43)(K)); Crime of Fraud or Deceit (in which the loss to the victim exceeds $10,000 or revenue loss to the government exceeds $10,000): An offense is not a fraud or deceit offense unless fraud or deceit is a necessary or proven element of the crime (INA 101(a)(43)(M) Nijhawan v. Holder, 557 U.S., 129 S.Ct (2009) (loss or potential loss may be determined by the record of conviction or during a hearing before the immigration judge); Failure to Appear for Service of Sentence if the underlying offense is punishable by imprisonment of five years, or more (INA 101(a)(43)(Q)); Crime Related to Commercial Bribery: counterfeiting, forgery, or trafficking in cars with altered vehicle identification numbers (VIN), where the penalty imposed is imprisonment for one year or more (felony or misdemeanor) (INA 101(a)(43)(R)); Crime Relating to Obstruction of Justice: Perjury or Subornation of Perjury, or Bribery of a Witness, where the penalty imposed is imprisonment for one year or more (felony or misdemeanor) (INA 101(a)(43)(S)); A Conviction Related to Failure to Appear Before a Court on a Felony Charge for which a sentence of two years of imprisonment or more may be imposed (INA 101(a)(43)(T). Deportable Offenses which are Not Necessarily Aggravated Felonies: Crimes Involving Moral Turpitude (CIMT): Defined through case law as crimes which are inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. In general, crimes of moral turpitude fall into the following categories: (i) crimes in which an intent to steal or defraud is an element; (ii) crimes in which bodily harm is caused or threatened, by an intentional or willful act; ( iii) crimes in which serious bodily harm is caused or threatened by a reckless act; or (iv) sex offenses. They include -- but are not limited to -- aggravated assault, sexual abuse (even if it did not involve a minor), kidnapping, arson, malicious destruction of property, criminal possession of stolen property, bribery, forgery, any crime involving either theft (such as robbery, burglary or larceny) or fraud (such as welfare fraud). However, not every crime within each of the categories will always be a CIMT. Please see Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), for the BIA s current approach in analyzing whether a particular crime is a CIMT. Controlled Substances Offenses: This category includes any conviction for sale of a controlled substance, possession of a controlled substance with intent to sell, or simple possession, with the exception of a single conviction for possession of 30 grams or 10

11 less of marijuana. Drug abuse or addiction (whether resulting in a criminal conviction or not) also renders a non-citizen removable. 237(a)(2)(B)(ii). Firearms: As previously noted, any firearms trafficking offense is an aggravated felony, often subjecting a non-citizen to mandatory removal. However, any conviction for mere possession of a firearm, including a class A misdemeanor, renders a non-citizen removable. Note that this ground of removability refers to firearms and not weapons in general. In some instances, a challenge can be made that the particular statute is overbroad and includes other types of weapons the possession of which does not constitute a removable offense. The government must then prove with the record of conviction that the weapon was in fact a firearm and not any other type of weapon. Domestic Violence and Stalking: Convictions in this category include crimes involving domestic violence, stalking, or child abuse, neglect or abandonment, but only if the statute under which he or she was convicted satisfies the federal definition of a crime of violence. Your client may be able to challenge this charge if the government cannot prove there was a relationship between your client and the victim that falls within the definition in INA 237(a)(2)(E)(i). Violation of Orders of Protection: Any conviction that includes a determination that certain portions of an Order of Protection (credible threats of violence, repeated harassment or bodily injury to a person) have been violated renders an alien removable if committed at any time after entry, no matter what the actual sentence imposed. Failure to Register as a Sex Offender: Any person who has been convicted of a number of sexual offenses is required to register in their jurisdiction after releases pursuant to 18 U.S.C Any non-citizen who violates this new registration requirement may be convicted in federal court, and, once convicted, is deportable and disqualified from cancellation for non-lprs. Criminal Grounds of Inadmissibility INA 212: Your client may be subject to removal on inadmissibility grounds if s/he entered without inspection (EWI) and is seeking admission, applying for immigration benefits or is an LPR returning to the United States after a trip abroad and/or was convicted of or admits to having committed these crimes: * A controlled substance offense (INA 212(a)(2)(A)(i)(II)); * A crime involving moral turpitude (CIMT) unless subject to the petty offense exception (INA 212(a)(2)(A)). Other criminal grounds of inadmissibility include a conviction for: * Two or more crimes with an aggregate sentence of five years or more. Each of these grounds of inadmissibility is discussed further below. 11

12 Controlled Substances Offenses: Note that unlike the controlled substance ground of deportability there is exception for a single conviction for possession of 30 grams or less of marijuana. Crimes Involving Moral Turpitude: Described by case law as crimes which are inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. In general, crimes of moral turpitude fall into the following categories:( i) crimes in which an intent to steal or defraud is an element; (ii) crimes in which bodily harm is caused or threatened, by an intentional or willful act; (iii) crimes in which serious bodily harm is caused or threatened by a reckless act; or (iv) sex offenses. They include -- but are not limited to -- aggravated assault, sexual abuse (not involving a minor), kidnapping, arson, malicious destruction of property, criminal possession of stolen property, bribery, forgery, any crime involving either theft (such as robbery, burglary or larceny) or fraud (such as welfare fraud). There are two exceptions to this ground of inadmissibility: * If your client has been convicted of only one CIMT, s/he may qualify for one of the following exceptions and may not be inadmissible: Petty Offense Exception: (1) Your client was convicted of one CIMT and the maximum possible penalty for the crime did not exceed one year in prison and your client was not sentenced to more than six months in prison; Youth Exception: (2) Your client committed one CIMT when he/she was under 18 and the crime was committed more than five years before your client s application for admission. One of the most common reasons non citizens are placed in removal proceedings is due to their past/present criminal convictions. In general in removal proceedings there is a two-prong inquiry. First is to determine whether the client is removable based either on violation of any of the prescribed grounds of inadmissibility or deportability. The next inquiry is whether there is a waiver available to the client which will allow the client to remain in the US despite his/her removability. The first line of attack, therefore, is to help clients to avoid criminal convictions or pleas that make them removable. The second line of attack is to try to navigate the criminal justice process to minimize the impact of the crime on their eligibility for a waiver of removal. 4. Definition of Conviction The statutory definition of conviction under the Immigration and Nationality Act is broader than state and federal definitions of what constitutes a conviction. INA 101(48) (A) defines a conviction as a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found an alien guilty or the alien has entered a plea of guilty or nolo contender or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien s liberty to be imposed. 12

13 (B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. VII. DISPOSITIONS WHICH MAY AVOID REMOVAL A. Any dismissal, including adjournments in contemplation of dismissal, or upon a Clayton application may avoid removal. Note: Post-conviction relief resulting in a dismissal may not help your client avoid removal if the dismissal was done purely for immigration purposes and there was no legal defect in the conviction. Matter of Pickering, 23 I. & N. Dec. 62i (BIA 2003) Note: Deferred adjudications in general do NOT protect against removal. Matter of Roldan 22 I. & N. Dec. 512 (BIA 1999) Note: Pleas that are vacated upon completion of drug treatment are considered convictions for immigration purposes, because (1) defendant s admission of guilt and an order by the judge to go to a drug program is sufficient to trigger deportation. Note: Certificate of Relief from Civil Disabilities do NOT offer any protection from removal. B. Disorderly conduct Disorderly conduct violations are generally not considered convictions for immigration purposes. However, the underlying conduct may be considered in some contexts for denying immigration benefits. C. Youthful Offender adjudications YO adjudications are not considered convictions for immigration purposes. See Matter of Devison Charles, 22 I. & N. Dec (BIA 2000). However, the 2d. Circuit has held in Wallace v. Gonzalez, 463 T.3d 135 (2d Cir. 2006) that, immigration authorities may consider the facts underlying an immigrant s adjudication as a youthful offender when deciding whether to grant an application for adjustment of status to become a lawful permanent resident. Also note that admission of the elements of a crime, including a YO, may be sufficient to establish inadmissibility. D. Juvenile Delinquency Adjudications Under current immigration law, New York juvenile delinquency adjudications do not count as convictions for immigration purposes with two exceptions: (1) certain violent crimes and (2) violation of domestic violence orders of protections. 13

14 Note: Juvenile Offender Convictions ARE convictions for immigration purposes. E. Securing a sentence that leaves the client eligible to apply for relief from deportation. See aggravated felony discussion above. F. Petty Offense Exception to CIMT - There is an exception to the CIMT ground of inadmissibility if your client is convicted of only one CIMT. In order to fall within this exception the maximum penalty possible for the crime cannot exceed one year in prison and the alien cannot be sentenced to a term of imprisonment of more than 6 months. G. Record of Conviction -As discussed above, the government generally proves its charges against your client based on the record of conviction. The record of conviction for immigration purposes generally includes a charging document, plea agreement, a verdict or judgment of conviction, a record of the sentence, or a plea colloquy transcript. H. Drug possession - marijuana possession of 30 grams or less will not subject your client to removal as a ground of deportability. Note: It is likely to be your client s burden to prove the conviction was for 30 grams or less. I. Filing a notice of appeal. This stays removal only until the direct appeal is decided, and only if there are no other grounds of removability that apply. However, some federal circuit courts have held that the 1996 deportation laws that defined conviction eliminated the argument regarding finality. VIII. Mandatory Detention In April 2003, the Supreme Court in Demore v. Kim, 123 S. Ct (2003) found that the practice of mandatory detention was constitutional. This means that the government is authorized to take non-citizens into custody and hold them until their proceedings are completed if they have been convicted of certain removable offenses and released from jail after October 8, This can result in incarceration anywhere from a few months to a few years. Lawful permanent residents or non-citizens who have overstayed their non-immigrant visas or were admitted into the United states in some manner may be subject to mandatory detention if convicted of any of the following offenses and were released from jail after October 8, 1998: Two Crimes Involving Moral Turpitude at any time after admission into US; An aggravated felony offense; A controlled substance offense; A firearm offense. 14

15 A lawful permanent resident returning from a trip abroad, a non-citizen who entered without inspection (EWI) or a non-citizen seeking admission into the United States is subject to mandatory detention if s/he was released from jail after October 8, 1998, and convicted of any of the following crimes: One CIMT (not including a petty offense where your client had no prior criminal history, the offense was not punishable by more than one year in jail and he or she did not serve more than six months in jail); A controlled substance offense; Drug trafficking offense; Two or more offenses with aggregate sentence of five years incarceration; Prostitution. Many non citizen clients who are placed in removal proceedings and are detained are currently being held in Immigration and Customs Enforcement detention facilities or contracted local jails. Detained clients can be moved anywhere in the country to other DHS facilities where they have no ties or family support. 15

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