IMMIGRATION CONSEOUENCES OF CRIMINAL CONVICTIONS: A PRIMER FOR THE CRIMINAL DEFENSE LAWYER

Transcription

1 IMMIGRATION CONSEOUENCES OF CRIMINAL CONVICTIONS: A PRIMER FOR THE CRIMINAL DEFENSE LAWYER by Rafael C. Villarruel Deputy Defender Federal Defender Office I. INTRODUCTION Under our federal immigration laws, there exists a broad range of criminal convictions that have immigration consequences for the non-citizen defendant. The following outline is an attempt to summerize such convictions as well as provide the criminal defense lawyer with an introduction to the statutes and concepts that are essential in giving competent counsel to the non-citizen defendant.' The immigration consequences of a guilty plea or conviction in a Michigan court (or any other state court or federal court for that matter) have increased dramatically since the enactment in 1996 of the Antiterrorism and Effective Death Penalty Act (AEDA) and the Illegal Immigration Reform and Immigrant Responsibility Act (lirira) of 1996-' As a result of the enactment of AEDP A and IIRIRA of 1996, non-citizens who are convicted of even relatively minor offenses, including misdemeanors, may now face harsh immigration consequences. Hence the ultimate goal of a criminal defense attorney representing the noncitizen dcfcndallt is to avoid any criminal conviction. However, -when that cannot be 'This primer/outline is not meant to be exhaustive. Consultation with an experienced immigration counsel and additional legal research is often required and certainly recommended. 'Pub.L , ,110 Stat. 1214, and Pub. L , Div. c., 110 Stat (codified as amended in scattered sections of Title 8 of the United States Code), respectively. While references to the INA cannot be avoided, where possible, this outline will generally use the 8 U.S.C. citations rather than the INA citations.

2 accomplished, this outline should serve you and your client in navigating the complex and often convoluted legal arena of immigration statutes and decisions. This requires, at a minimum, that the criminal defense lawyer familiarize himlherse1f with the Immigration and Nationality Act' (INA), relevant regulations 4 and various federal court and BIA 5 decisions interpreting the statutes and regulations. II. RELEVANT STATUTORY PROVISIONS Definition of Aggravated Felony: 8 U.S.c. 1101(a)(43) Definition of Conviction and Sentence: 8 U.S.C. 1101(a)(48) Definition of Good Moral Character: 6 8 U.S.C. 1101(f) Inadmissable Aliens (Grounds for Exclusion and Relevant Waivers): 8 U.S.C Admission of non immigrants: 8 U.S.C Inspection Upon Admission and Provisions for Expedited Removals at Ports of Entry: 8 U.S.c Apprehension and Detention of Aliens: 8 U.S.c Deportable Aliens: 8 U.S.C Expedited Removal of Aliens Convicted of Aggravated Felonies: 8 U.S.C The INA is a comprehensive set of federal laws covering aliens and nationality. This includes immigration, naturalization and exclusion of aliens. See generally 8 U.S.C to The relevant regulations can be found at 8 C.F.R. 1-1 et seq. SThe Board of Immigration Appeals (B1A) decisions are available online at 6 Actually, this statute more precisely defines that term in the negative, i.e., the following individuals cannot be found to possess good moral character.

3 Initiation of Removal Proceedings: 7 8 U.S.C Removal Proceedings: 8 U.S.C. 1229a Cancellation of Removal: 8 U.S.C. 1229b Voluntary Departures: 8 U.S.c. 1229c Reinstatement of Prior Removals and Withholding of Removal: 8 U.S.C Temporary Protected Status: 8 U.S.C. 1254a Adjustment of Status (from non-immigrant to LPR): 8 U.S.C Bringing in and Harboring Certain Aliens: 8 u.s.c Illegal Entry: 8 U.S.C Illegal Entry After Prior Deportation: 8 U.S.c III. CRIMINAL GROUNDS FOR DEPORTATION OF LAWFULLY ADMITTED IMMIGRANTS The criminal grounds for deportations of a lawful pennanent resident (LPR hereafter) or a lawfully admitted individual, are listed in the Immigration and Nationality Act at INA 237; 8 U.S.c The following outlines the most significant grounds for removal. It is worth repeating that diligent legal research or consultation with an immigration lawyer is essential in meeting the standards for effectively advising the noncitizen defendant of the immigration consequences of a criminal plea or disposition. 7Details what must appear in the Notice to Appear. 'The tcnn depoliation has been replaced by the newer term of "removal" by the immigration law amendments. However, it is still used extensively by immigration lawyers, the courts and Title 8. See, e.g., 8 U.S.C. I 227(a)(2).

4 1. MORAL TURPITUDE 9 (a) One Crime Involving Moral Turpitude lo A noncitizen is deportable for a crime of moral turpitude if s/he: is convicted; of a crime involving moral turpitude; committed within five years of admission; and could receive a sentence of one year or more. (b) Two or More Crimes Involving Moral Turpitude ll A noncitizen is deportable if s/he: is convicted; of two or more crimes involving moral turpitude; that did not arise out of "a single scheme of climinal misconduct." 2. AGGRAVATED FELONy12 A conviction of an aggravated fclony is a ground of deportability. 13 A noncitizen with an aggravated felony conviction is ineligible for most forms of relief from deportation (also known as "cancellation of removal)]4 Consequently, an aggravated felony conviction must be avoided at all costs. Unfortunately, this may prove difficult as the aggravated felony definition has grown considerably and consists of many different felonies and even some misdemeanors. 9See 8 U.S.c. I 227(a)(2)(A)(i). '"Since 1917, noncitizens have been subject to deportation upon conviction for "crimes involving moral turpitude." 8 U.S.C. 1227(a)(2)(A). The Supreme Court in Jordan v. DeGeorge, 341 U.S. 223 (1951), upheld this ground for deportability against a challenge for vagueness even though there is no statutory definition of thc phrase. 118 U.S.C. 1227(a)(2)(A)(i). l2the INA defines the tenn aggravated felony at 8 U.S.C (a)(43). 138 U.S.C. 1227(a)(2)(A)(iii) U.S.C. 1229(b)(a)(3).

5 I 101 (a)(43): Below are listed most but not all offenses defined as an aggravated felony under 8 U.S.c. (I) (ii) (iii) (iv) Murder, rape or sexual abuse of a minor; Drug trafficking; further defined as illicit trafficking in a controlled substance (as defined in 21 U.S.C. 802), including a drug trafficking crime (as defined in 18 U.S.c. 924(c); Trafficking in firearms, destructive devices or explosive materials (as defined in 18 U.S.C. 921 and 841 (c); Money laundering and monetary transactions from illegally derived funds, if the amount exceeded $10,000; (v) Any crime of violence (other than purely political ones as defined in 18 U.S.c. 16) for which the tenn of imprisonment imposed (even if it is suspended) is at least one year; (vi) (vii) (viii) (ix) Theft, receipt of stolen property, or burglaryl5 ifthe defendant receives a sentence of one year or more; Fraud, deceit or tax evasion if the 10ssl6 to the victim(s) or government exceeds $10,000; An offense related to owning, controlling, managing, or supervising a prostitution business; Disclosing classified infonnation, identity of undercover intelligence agents, identity of undercover agents, and sabotage; 15 A conviction for burglary is not always an aggravated felony within the meaning of 8 U.S.C. I I 01 (a)(43)(g). See Taylor v. United States, 495 U.S. 575 (1990); United States v. Wenner, 351 F.3d 969 (9th Cir. 2003)(Taylor applies to sentencing as well as immigration context); Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000)(the term burglary as used in 8 U.S.C. 1101(a)(43)(G) has a unifonn definition independent of the labels used by state codes, i.e, the unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.) Thus, a conviction for burgla1y of an automobile is not a burglary offense. Solorzano Patlan v. INS, 207 F.3d 869 (7th Cir. 2000). 16The victim does not need to snffer an actual loss according to the BIA. See In re Onyido, 221 & N Dec. 552 (BIA 1999).

6 (x) (xi) (xii) (xiii) (xiv) (xv) (xvi) alien smuggling (except in the case of a first offender for which the alien demonstrates he committed the offense to assist the alien's spouse, child or parent); 17 It is an aggravated felony for an alien to re-enter the United States after a previous deportation on the basis of a criminal conviction for an offense described in another subparagraph of this paragraph; A conviction for using or creating false documents is an aggravated felony if the term of imprisonment is at least one year. There is an exception for a first offense committed to aid the defendant's spouse, child or parent. 8 U.S.c (a)(43)(p); Failure to appear to serve a criminal sentence is an aggravated felony if the underlying offense is punishable by imprisonment for a term of five years or more; or failure to appear to face charges of an offense for which a court may impose a sentence of two years or more; Commercial bribery, counterfeiting, forgery, or trafficking in vehicles with altered VIN numbers for which the telm of imprisonment is at least one year; Obstruction of jnstice, perjury or bribery of a witness, for which the term of imprisonment is at least one year; Conspiracies or attempts to commit any offense listed in 8 U.S.C. 1101(a)(43) is also an aggravated felony. Practice Note Foreign convictions that fit the description of any of the offenses in 8 U.S.c. 1101(a)(43) for being an "aggravated felony" will also count as an aggravated felony for purposes of removal so long as the term of imprisonment was completed within the previous 15 years. Additionally, a foreign conviction may serve as the predicate felony for a prosecution under 8 U.S.C. 1326(b)(I), Unlawful Reentry After Deportation After an Aggravated Felony. 3. FIREARM OFFENSESIDESTRUCTIVE DEVICES A conviction for purchasing, selling, exchanging, owning, or possessing a firearm or destructive device in violation of any law is grounds for removal. 8 U.S.C. 1227(a)(2)(c). '7The BIA has held that harboring or transporting aliens offenses are aggravated felonies. See In re Ruiz-Romero, 22 1& N Dec. 486 (BIA 1999), affd., Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000).

7 4. DOMESTIC VIOLENCE In 1996, Congress added a ground of deportability for domestic violence and violations of civil protection orders. 8 U.S.C. 1227(a)(2)(E). A non-citizen is removable for a domestic violence conviction, the crime of stalking, or even child abuse, child neglect or child abandonment. No sentence of imprisonment is required as distinguishable from the aggravated felony category of a crime of violence (which requires a tenn of imprisonment of at least one year), although both statutes rely on the definition of "crime of violence" as spelled out in 18 U.S.c IV. DEFINITION OF CONVICTION FOR IMMIGRATION PURPOSES follows: Congress defines conviction in the immigration context at 8 U.S.C (a)( 48) as (A) The tenn "conviction" means, with respect to an alien, a fonnal judgment of guilt of the alien entered by a count or, if adjudication of guilt has been withheld, where- (I) a judge or a jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and Oi) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. (B) Any reference to a tenn of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court oflaw regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. The above definition should be read in light ofthe BIA's decision in Matter ofozkok, 19 I & N Dec. 546 (BIA 1988). The noncitizen in Ozkok pled guilty to possession of cocaine pursuant to a Maryland statute. The adjudication of guilt was stayed and the proceedings deferred for the three ISSee e.g., Sutherland v. Reno, 228 F.3d 171 (2nd Cir. 2000).

8 year probation period. Even though Ozkok successfully completed his probation and the state court judge discharged his probation pursuant to the statute (which called for treating the above as a discharge without judgment of conviction as well as not treating it as a conviction for purposes of any disqualification or disability imposed by law), the BIA held that the Maryland action constituted a conviction for purposes of determining deportability for a controlled substance offense. Consequently, when Congress passed 8 U.S.C. 1101(a)(48), it incorporated that part of the Ozkok decision that deals with withheld or deferred adjudications. See In re Salazar-Regino, 23 I & N Dec. 223 (BIA 2002). V. Juvenile Convictions A juvenile court disposition is not a conviction for immigration purposes. See Matter of Ramirez-Rivero, 18 I & N Dec. 135 (BIA) 1981); In re Devison-CharIes, 22 I & N Dec (BIA 2000). Practice Note: Some youthful offender dispositions are considered convictions. See Uritsky v Gonzales, 399 F. 3d 728 (6th Cir. 2005) (holding that a sentence of probation and a designation of youthful trainee under Michigan's Holmes Youthful Trainee Act [M.C.L ) constitutes a conviction for immigration purposes. VI. Pretrial Diversion Under federal Pretrial Diversion, a defendant does not enter a plea, but rather enters into a civil contract whereby he agrees to be placed in a form of probationary program (nsually requiring restitution and community scrvice). Upon successful completion of the diversion program, the dismissed charge can never be brought again for that particular past incident or conduct. Since the noncitizen defendant makes no formal admission of guilt on the record, the first prong of8 U.S.C (a)(48)(a) is not met. A word of caution here: the Federal Pretrial

9 Diversion Program generally requires that the defendant accept responsibility during his pretrial diversion interview by writing out a statement to the U.S. Pretrial Services Officer. Practice Note: It is the practice of the Detroit Federal Defender Office to avoid, when possible, having the noncitizen defendant make any admissions of guilt to the Pretrial Service Officer. See U.S. Attorney's Manual, Title 9, Criminal Resource Manual 712(F)("The offender must acknowledge responsibility for his or her behavior, but is not asked to admit guilt.") VII. Expunged Offenses No effect for immigration purposes: a conviction that has been expunged pursuant to a past-conviction rehabilitative state procedure is still considered a conviction for immigration purposes. See In re Roldan, 22 1& N Dec. 512 (BrA 1999). But compare Lujan-Annendariz v. INS, 222 F.3d 378 (9th Cir. 2000) (holding that an individual's first-time simple drug possession offense that was expunged by a state rehabilitative statute could not be considered a conviction if first offender treatment would have been accorded under 18 U.S.C. 3607(a) in Federal Court.); with Gill v Ashcroft, 335 F.3d 574 (7th Cir. 2003) and Acosta v. Ashcroft, 341 F.3d 21S (3rd eir. 2003) where the Seventh and Third Circuits disagreed with the Ninth Circuits reasoning in Lujan-Annendariz, and came to the opposite conclusion. In short, the BrA takes the position that 8 U.S.C. II0l(a) (4S) (A) gives no effect to a state action that expunges, dismisses, cancels, vacates, discharges, orotherwise removes a guilty plea if done for equitable reasons. In Re Luviano, 23 I & N Dec. 71S (BrA 2005). VIII. Vacated Convictions A vacated conviction, where it is done based on a ruling that the conviction was legally defective, is not a conviction for immigration purposes. See In Re Rodriguez-Ruiz, 22 I & N Dec (BrA 2000); Matter of Sirhan, 13 I & N Dec. 592 (BrA 1970). However, in Beltran-

10 Leon v. INS, 134 F.3d 1379 (9th Cir. 1998), the Ninth Circuit held that a conviction that a trial court vacated for equitable reasons remains a conviction for immigration purposes. IX. Pardoned Offenses A full and unconditional pardon by the President of the United States or by a state Governor will eliminate deportability on account of crimes of moral turpitude, aggravated felony convictions or a conviction for the offense of high speed flight from an immigration checkpoint. 8 U.S.C. 1227(a)(2)(A)(V) and 8 U.S.C. 123 I (a)(2)(a)(i)-(iv); Matter ofh, 7 I & N Dec. 249 (BIA 1956); Rasmussen v. Robinson, 163 F 2d 732 (3rd Cir. 1947). Specifically, 8 U.S.C (a)(2)(a)(v) provides that: [CJlauses (I), (ii), (iii), and (iv) shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the president of the United States or by the Governor of any of the several states. This BlA has interpreted this statute to mean that a pardon will not always protect your client from deportation. In the case ofln re fung Tae Suh, 23 I & N Dec. 626 (BIA 2003), the BlA held that a pardon would not waive a noncitizen's removability unless his crime involved an om~nse specifically set forth in 8 U. S. C (a)(2)(a)(v). As respondent.lung Tae Suh's conviction was for sexual battery, an offense not specifically set forth in 8 U.S.C. 1227(a)(2)(A)(V), the pardon he received from the state of Georgia did not waive removability for a crime of domestic violence or child abuse pursuant to 8 U.S.c. 1227(a)(2)(E)(I). The Court went on to state that because 1227(a)(2)(A)(V) does not provide a comparable provision that would cover pardons for other convictions such as acts of domestic violence or child abuse, it would not read implicit waivers into the statute. More troubling is the BIA's discussion in In

11 Re Jung Tae Suh that other convictions not specifically covered by 8 U.S.C. l227(a)(2)(a)(v), such as controlled substance violations under 8 U.S.C. 1227(a)(2)(B), as well as certain fireann offenses under 8 U.S.C. l227(a)(2)(c), and violations of protection orders under 8 U.S.c. l227(a)(2)(e)(ii), are similarly not covered by the pardon waiver section and 1227 (a)(2)(a)(v). In Re Jung Tah Suh, 23 1& N Dec. at 627. X. Advising noncitizen client's of immigration consequences of conviction by plea or trial in criminal proceedings after Padilla v. Kentucky, 130 S. Ct (2010). Padilla v. Kentucky is a must read case for the criminal defense attorney as it provides that failure to adequately advice a noncitizen defendant of the immigration consequences of a criminal conviction is ineffective assistance of counsel. Jose Padilla had lived in this country for nearly forty years and had served in the United States Anny during the Veitnam War. Padilla was a legal penn anent resident of this country, having immigrated from Honduras. For some unknown reason he never took the next step to become a naturalized citizen. In 2001, he was indicted for trafficking in marijuana, an aggravated felony under the Immigration and Naturalization Act. Prior to entering his plea, Padilla asked his lawyer whether a plea of guilty to that offense would impact his immigration status. The appellate record shows that Mr. Padilla's criminal defense attorney incorrectly advised him that it would not affect his immigration status due to his long residence as a legal pelmanent resident alien in this country. Unfortunately, because the offense was an aggravated felony, Padilla's removal would have been mandator! following his conviction and sentence. Upon learning of this, Padilla sought post conviction relief in Kentucky's state courts on the ground that his attorney had improperly advised him. The Kentucky Supreme Court denied Padilla's appeal

12 holding that he was not entitled to accurate advice from his attorney on immigration consequences because he had no Sixth Amendment right to counsel in that proceeding. The United States Supreme Court reversed, holding that as a matter of federal law, counsel must inform a client when his or her plea carries a risk of deportation. In his majority opinion, Justice Stevans' analyzes the sad march of immigration laws over the past 90 years, concluding, "[A]s a matter of federal law, deportation is an integral part - indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." "Deportation as a consequence ofa criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or collateral consequence," and that advice regarding it thus falls within the Sixth Amendment's right to counsel. Because "[i]mmigration law can be complex," "[w]hen the law is not succinct or straightforward,... a criminal defense attomey need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequences is truly clear, as it was in this case [transportation ofmarijuanaj, the duty to give correct advice is equally clear." The 7 to 2 majority had no problem holding counsel for Padilla ineffective for misadvising him that he would not be deported for his conviction, and remanded to allow Mr. Padilla the opportunity to meet the prejudice prong under Strickland. Justices Kennedy, Ginsburg, Breyer and Sotomayor joined the Stevens) opinion. Chief Justice Roberts and Justice Alito concurred in the judgment, while Justices Scalia and Thomas dissented. 2012/RCV/vale