1 Immigration Consequences of Criminal Conduct
2 AGENCIES AND DEPARTMENTS DHS: U.S. Citizenship and Immigration Services (USCIS) Administering immigration benefits and services is primary focus Services include lawful permanent residence, citizenship, and work authorization applications Customer service oriented DHS: Customs and Borders Protection (CBP) Port of entries (airports, land border), Enforces immigration and customs laws DHS: Immigration and Customs Enforcement (ICE) Enforcement side Consists of investigations, detention, removal, and intelligence Comprised of trial attorneys under immigration litigation, deportation officers Department of Justice (DOJ) Controls the immigration court system and immigration judges (Immigration court is known as Executive Office of Immigration Review or EOIR)
3 Introduction to Immigration Status U.S. Citizen by birth or naturalization or acquired/derived Lawful Permanent Resident (LPR) has a green card LPRs may apply for U.S. citizenship after 3 or 5 years Two major categories of documented ( legal ) non-citizens: Nonimmigrant limited time, specific purpose Immigrant may apply for or have obtained lawful permanent residence Undocumented immigrants (AKA illegal alien ): May have entered without documents or permission May have entered with valid document then overstayed
4 What are Removal Proceedings? Civil proceedings in which an immigration judge decides whether a non-citizen is inadmissible to or deportable from the United States.
5 Immigration Hold Through the client s criminal hearing/sentencing Effect on bail set by criminal court Timeline once criminal sentence has been carried out 8 C.F.R (d)
6 What Happens After the Detainer? Paying bond in criminal case Where will client be held? What is the procedure for a client entering ICE custody? What documents will be issued? What rights does a client have?
7 Immigration Bonds
8 Initial Custody Status ICE initially sets Respondent s custody status within 48 hours of arrest (no bond, bond, ROR) Initial custody status is based on whether Respondent is a danger to the community and/or a flight risk Factors taken into consideration include criminal record, family ties in U.S., legal status, length of residence in U.S., employment history, assets in U.S., immigration history, and potential relief
9 Mandatory Detention Inadmissibility Grounds Custody: The Attorney General shall take into custody any alien who- is inadmissible by reason of having committed any offense covered in section 212(a)(2) (I.e. CIMT) Unless: Petty offense (Max 1 yr; actual < 6 mo) Minor at time of commission & more than 5 years elapsed before request for admission Controlled Substance offense Multiple Criminal Convictions Controlled Substance Traffickers (reason to believe) Prostitution Has been involved with/aided terrorism
10 Mandatory Detention Inadmissibility Grounds (2) (D) is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B), when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
11 Mandatory Detention Deportability Grounds is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D), CIMT w/in 5 years of admission for a crime w/ 1+ year potential incarceration 2 + CIMTs after admission Aggravated felon Controlled Substance Offense (except single instance of < 30g of MJ); drug abuser or drug addict Firearm offenses --Human smuggling Treason --Terrorism grounds Import alien for immoral purpose
12 Mandatory Detention Matter of Luis Felipe GARCIA ARREOLA, I&N Dec. 267 (BIA 2010) Interim Decision #3685 "Accordingly, we now hold that mandatory detention under section 236(c) of the Act is addressed to the situation of an alien who is released from custody for one of the offenses enumerated in the Act.
13 Motion for Redetermination of Custody Status Respondent may request IJ to re-determine custody status May request a bond hearing at ANYTIME while Respondent is in ICE custody ** Can request one orally, in writing, or by telephone (written motion recommended) IJ considers same factors as ICE Hearing not recorded record will only consist of document submissions
14 Decision of the Immigration Judge Is to include clear and complete findings of fact Must be supported by the record and in compliance with the law Is generally rendered orally Each side may reserve appeal
15 Inadmissibility Grounds Found at INA 212(a), 8 USC 1182(a) Cover: Health related grounds Criminal grounds National security grounds Likely to become a public charge Labor protection grounds Fraud and unlawful entry Lack of proper documentation Prior immigration violations
16 Appeals or Reconsiderations of a Judge s Bond Decision EOIR 26 & EOIR 27 - Received by Board of Immigration Appeals (BIA) within 30 calendar days Address: Board of Immigration Appeals Clerk's Office First Class Mail: Overnight: P.O. Box Leesburg Pike, Ste 2000 Falls Church, VA Falls Church, VA No filing fee No stay of removal
17 Removability Applies to any non-citizen who has been formally admitted to the U.S. as an immigrant or a non-immigrant and is being charged with having violated an immigration law
18 Paying an Immigration Bond Address: 300 N. Los Angeles St. # 7621 Los Angeles, CA Phone #: (213) Payment to: US Department of Homeland Security Postal Money Order or Cashier s Check Hours: 8 a.m. to 3 p.m.
19 Immigration Proceedings
20 Defensive Process Called Removal Proceedings, see INA 240 Immigration Court Practice Manual: An immigration officer puts you in removal proceedings because: Your case was referred to court by the asylum officer Immigration believes you are inadmissible or deportable (usually because you have no immigration papers or because of criminal convictions) This is an adversarial process-government trial attorney (TA) plays a prosecutorial role, The emphasis of the judge and the TA is on the applicant s credibility
21 Notice to Appear ( NTA ) Initiates removal proceedings against an individual States Category of alien (arriving, present w/o admission, or admitted but deportable) Factual allegations of removability Underlying inadmissibility or deportability ground(s) Hearing date, time and place (or TBA )
22 Master Calendar Hearing Preliminary hearing used for pleading to allegations of removal, custody redetermination motions, requesting form of relief, uncontested matters and scheduling
23 Burden of Proof Inadmissibility A first time applicant for admission must establish he is clearly and beyond a doubt entitled to be admitted. INA 240(c)(2)(A), 8 USC 1229a(c)(2)(A). A person returning to a status must establish by clear and convincing evidence that he is lawfully present pursuant to a prior admission. INA 240(c)(3)(B), 8 USC 1229a(c)(3)(B). Removability DHS has the burden to establish deportability by clear and convincing evidence for a noncitizen who has been admitted to the United States. INA 240(c)(3)(A), 8 USC 1229a(c)(3)(A).
24 What is a Conviction Immigration law defines conviction as a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where a judge or 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 the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. Generally expungements of convictions and arrests, and most pardons, have no effect on a conviction in the immigration context.
25 Client s Perceptions Many times a person will not understand that he or she has a conviction particularly after : Completing diversion (guilty vs. not guilty pleas) Completing probation fine with no jail time or expungement Convictions, even misdemeanors, can have particularly negative consequences when attempting to obtain a visa or re-enter the US.
26 What is the Categorical Analysis Immigration Courts use the categorical analysis to evaluate whether a prior conviction to determine if the conduct at issue triggers an immigration penalty The statute of conviction is compared to the federal definition of an offense under immigration law to determine whether the person is removable
27 The Modified Categorical Analysis Where a person is convicted under a statute which has some sections that may subject an individual to immigration consequences and some which may not, the court wants to know what section the individual was convicted under To do this, it uses the modified categorical approach, which involves reviewing the record of conviction
28 Record of Conviction Shepard v. US, 125 S. Ct (2005) Determine what the elements of a given offense are based on the statute & case law Criminal charge only if incorporated into plea (i.e. pled as charge in the information) Written Plea Agreement Transcript of Plea Hearing Transcript of judgment Sentence Jury instructions
29 ROC does NOT include: Police reports, probation or pre-sentence reports Statements by non-citizens outside of judgment and sentence transcripts (i.e. to police) Information from co-defendant s case WARNING: Stipulating to facts in a document not otherwise part of the ROC incorporates them into the ROC by reference
30 When Can Judges Inquire Further? US v. Aguila-Montes-de-Oca, (9 th Cir. Aug. 11, 2011) Categorical approach was expanded, allowing authorities to look beyond the statute of conviction to the record of conviction, even in situations where the statute is missing an element that would otherwise be needed in order to render an individual removable
31 What does this mean? Trial attorneys may push to have IJs look further into the record of conviction to find facts that were not elements of the trial in order to find facts that will trigger removability
32 What does this mean for criminal defenders? Since the language of a statute is now less likely to protect a client from immigration consequences, it is CRITICAL to craft pleas in a way that will avoid/mitigate these potential consequences Defendants must be advised that where underlying facts could trigger removability, immigration consequences could follow, despite best efforts of counsel More important than ever to consult with an immigration expert
33 What Should Immigration Attorneys Do? Argue that evidentiary rules under traditional modified categorical approach apply Argue that the facts at issue are not necessary for convicting the defendant under the prosecutor s sole theory of the case Argue no retroactivity of Aguila-Montes rule Attempt to continue the case for collateral attack on criminal matter Serve as consultant for criminal attorney on crafting the plea
34 How might this play out in court? Example: Generic definition elements: fraud and involving a sum of $10,000 or more Statute of conviction elements: fraud Action: court goes to the record of conviction and determines that Respondent admitted that the fraud amount was over $10,000
35 Limitations IJ is still limited only to facts found in the record of conviction It is not enough that an indictment merely allege a certain fact or that the defendant admit the fact; the fact must be necessary to convicting that defendant.
36 Merits Hearing Less formal than a civil hearing Generally, no opening statements- closing statements vary by IJ Interpreter will be provided by the court Formal record is made by a tape recorder controlled by the IJ Relaxed rules of evidence (IJ generally considers weight, not admissibility, of evidence) Evidence must be relevant and probative Hearsay may be admissible, so long as probative and fundamentally fair Objections are permitted Trial attorney plays an adversarial role Immigration Judge may question witness(es) during direct and cross examination
37 Preparing Your Client to Testify Explain what your client needs to establish to the Immigration Judge in order to be granted relief Prepare your client to be questioned thoroughly by both the Immigration Judge and the Trial Attorney Encourage your client to speak clearly and loudly and look at the person who has asked the question Let your client know that if he does not understand the question, he should ask for clarification Sometimes your client s testimony may vary from what he has told you, so address these inconsistencies on redirect, if possible
38 Decision of the Immigration Judge Is to include clear and complete findings of fact Must be supported by the record and in compliance with the law May be rendered orally or in writing Each side is asked whether they would like to reserve appeal
39 Appeal to the Board of Immigration Appeals Submit Notice of Appeal to the BIA within 30 days of the IJ s final decision Notice of Appeal must state specific grounds for the basis of the appeal BIA will set the briefing schedule (21 days) and send parties transcript of proceedings and IJ s oral decision Detained case both parties brief due on same date Non-detained case appellee s brief due 21 days after appellant s due date BIA has limited fact-finding ability on appeals Will either issue a full written decision or affirm the IJ s decision without an opinion
40 Federal Court Review BIA decisions are subject to review by the Court of Appeals in the circuit where the case was originally heard Petition for review must be filed within 30 days of the decision of the BIA