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1 SENTENCING IN PA COURTS: Top Ten Immigration Law Considerations For The PA Criminal Defense Attorney & Sentence Dependent Immigration Consequences PBI: Sentencing in PA Courts June 22/ THOMPSON LAW OFFICES Peter J. Thompson, Esq. Law Offices of Peter J. Thompson 1500 Walnut Street 21 st Floor Philadelphia, Pennsylvania Immigration Criminal Law Criminal Defense Support Part 1: The 2015 Top Ten Primary Immigration Law Considerations For The PA Criminal Defense Attorney 1

2 1. UNDERSTAND THE PADILLA DUTY. When the law is not succinct and straightforward, a criminal defense attorney 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 consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. Padilla v. Kentucky, 599 U.S. 356, 369 (2010). Since Padilla what is succinct and straightforward has grown significantly. Effective Counsel = (1)Identifying noncitizen clients, (2)articulating immigration questions, (3)asking for and receiving correct answers, and (4)advising the client. Anything less falls short of providing effective representation. 1. PADILLA DUTY NOTJUSTFORDEFATTYS. [I]nformed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process" and that "[b]y bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties." Padilla v. Kentucky, 130 S.Ct. 1473, 1486 (2010). As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduces the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. Padilla at

3 2. THIS CAN BE CONFUSING DON T GIVEUP. Resources are available. The right immigration attorney will likely to help. 3. ADOPT A SYSTEM WITH NON-USC CLIENTS. Use a Form First: recognize non-usc clients. Second, learn imm history: Client s Alien Registration No. ( A# ) Immigration Detainer? Country of Origin; last entry Known Legal Status Any Pending Applications to Adjust? Prior Order of Removal (Deportation) or other grant of Removal? Prior Hearings before Imm Judge? Family Ties to US? Does Client Have Imm Attorney? 3

4 3. ADOPT A SYSTEM WITH NON-USC CLIENTS, CONTINUED Then use these three steps: 1. investigate facts, including client s imm status and history, 2. identify the client s wishes, and 3. analyze the imm conseq of key defense decisions and advise. This leads to Padilla advice and supports its reasoning. A suggested and simple guide to step three is to: a. Identify: base admissibility or removability issue? b. Evaluate prior crim convictions inadmissibility or removability? c. Evaluate each present charge (e.g., Agg Fel,CIMT) d. Evaluate present charges for inadmissibility or removability. e. Advise of the imm conseq of prior offenses and present charges f. Discuss client goals. g. Creative trial strategies/plea/trial with imm conseq in mind. If you would like to receive a free copy of this intake form, please send your request to: peter@thompsonlawoffices.org. 4

5 4. PLEADING TO MISDEMEANORS IS NOT THE ANSWER. The Imm Ct system is federal and looks to federal law to determine whether a conviction for a particular crime triggers inadmissibility or removal. The dreaded aggravated felonies? These need not be aggravated nor felonious in the state system, but only fit within the immigration definition for Aggravated Felony (see 8 U.S.C. 1101(a)(43)). Many PA misdemeanors fit this Agg Fel description, especially sentenced based Crimes of Violence. What about Crimes Involving Moral Turpitude? The most elusive of categorizations, CIMTs are crimes undefined by the INA that involve depravity or are contrary to moral law or are committed with a vicious or corrupt mind. Matter of B-, 6 I&N Dec. 98 (BIA 1954); (conduct that is inherently base, vile, or depraved Knapik v. Ashcroft, 384 F.3d 84, 89 (3d. Cir. 2004). While CIMTs preserve more relief, they also trigger inadmissibility and removal and include many PA misdemeanors. Note: many PA criminal statues are divisible, meaning that one subsection may be a CIMT, while another an Agg Fel, and another, especially with a lesser mens rea, may actually be neither. Bottom line: do not assume that it is safe to plea to misdemeanors. 5. UNDOC. PERSONS AREN T ALWAYS ORDERED REMOVED. Commonly understood that undocumented persons, when identified by the government, are automatically removed. Nothing could be further from the truth. The US Immigration system provides, for those qualifying for it, relief from removal. So while undocumented persons may be removable, certainly not all will actually be removed. This is where preserving admissibility for undocumented persons is important. It serves to understand the basic mechanics of immigration removal proceedings. 5

6 6. THE CONVICTION, SENTENCE AND V OF PROBATION/PAROLE SENTENCE ALL MATTER. Imm conseq may lie inert until a catalyst triggers the consequence. Is this an immigration-defined conviction? Will the sentence trigger inadmissibility or removability? Will this VOP sentence, when added to the original sentence, trigger inadmissibility or removability? A criminal conviction for imm purposes = a formal entry of guilt, or where the adjudication of guilt has been withheld but (1) where the judge or jury has found the alien guilty, or where the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and (2) the judge has ordered some form of punishment, penalty or restraint on the alien s liberty. See 8 USC 1101(a)(48) However, remain mindful that some grounds of inadmissibility and removability are purely conduct based and apply to juveniles (grounds not requiring formal conviction include, but not limited to, drug addiction or abuse, when gov t has reason to believe drug trafficking, engaging in prostitution, alien smuggling). 6. CONVICTION, SENTENCE AND V OF PROBATION/PAROLE SENTENCE, CONTINUED. A sentence in criminal court is not what the court may order, but what the court did order, regardless of whether it is active, suspended or withheld. INA 101(a)(48)(B); some exceptions to this, usually statutorily defined element. Some aggravated felonies are sentence dependent. The triggering fact is whether the client has been sentenced to a maximum incarceration sentence of a year (meaning 365 days) or more. Violation of Probation/Parole sentences are added onto the original sentence. This often causes a carefully designed sentence that does not trigger immigration consequences (less than 365 days) to become one that does (365 days or more). See Matter of Perez Ramirez, 25 I&N Dec. 203 (BIA 2010). 6

7 7. THE RIGHT DIVERSIONARY PROGRAM WORKS WONDERS. Def Attys must remain alert for pre-trial diversionary programs that do not meet the imm law definition of conviction. Many diversionary programs require an admission of conduct. This fits within the immigration definition of conviction. County courts drum up diversionary programs does it fit within the definition of conviction for immigration purposes? Not meeting the imm definition of conviction equals no independent criminal conviction ground for inadmissibility/removability in Immigration Court. 8. CLIENTS WITH IMMIGRATION DETAINERS CAN POST BAIL. DHS capture initiatives lead to ICE detainers -- a polite request under 8 C.F.R upon the local authorities to notify ICE when a noncitizen is eligible for release from a custodial arrangement so a pick-up can be arranged. Note: many PA counties no longer enforce ICE detainers b/c liability concerns. Imm detention holds noncitizens for removal proceedings, and can do so anywhere in the US. Persons in detention may have a bond amount set (by ICE). Bond is payable in a full dollar amount and private property is not accepted as collateral. Detainees may petition for a redetermination of bond by an Immigration Judge, who will focus on the risk of flight, danger to the community, and whether relief from removal is available. Practically speaking, noncitizen criminal defendants being held locally on both country bond or bail and an immigration detainer often ask if it is wise to post for the criminal law bond/bail so they may be transferred into immigration custody and post bond. In making this decision it is important to consider what is expected to happen in either court. There is no prohibition against posting local bond just because there is an ICE detainer lodged. The only practical effect is that they are transferred into ICE custody, where they can pursue their release before an Immigration Judge. 7

8 9. PEOPLE DO GET OUT OF IMMIGRATION DETENTION. Immigration detention holds noncitizens for removal proceedings, and can do so anywhere in the US. Persons in immigration detention may have a bond amount, which is set unilaterally by ICE. Bond is payable in a full dollar amount and private property is not accepted as collateral. Detainees may petition an Immigration Judge for a redetermination of bond. The Judge will focus on the risk of flight, danger to the community, and whether relief from removal is available. It is this third consideration that requires an immigration attorney s expertise. Consider arming clients with an understanding of available forms of relief before they enter detention. Remember that the vast majority of persons in Removal Proceedings are pro se litigants. 10. CONTACT A TRUSTED IMM/CRIM EXPERT. Resources cross the spectrum of on-line charts, to Immigration practitioners in general Immigration practice, to Immigration/Criminal (or Crimmigration ) experts those who practice in both Crim and Imm Cts. Regardless, consider acquiring an Immigration Consequences Memo that details each criminal offense, and the advice the client ought to receive (a sample memo has been attached to the PBI materials, pg. ). A memo aids in decision making, supports effective representation, helps avoid malpractice, and creates a touchstone that can be referenced over the lifetime of the case (including at the courthouse), including during any negotiations regarding pleas. 8

9 Part 2: Sentence Dependent Immigration Consequences SENTENCE DEPENDENT? Grounds of inadmissibility and removability in Imm include: conduct based grounds, health related grounds, financial (poverty) based grounds, political party affiliation/activity, and conviction based grounds. Conviction based grounds include the particular characteristics of the crime, including whether it fits the statutory definition of an Aggravated Felony, the common law definition of a Crime Involving Moral Turpitude (CIMT), a criminal act with a particular financial loss to the victim or a conviction with a particular sentence imposed. 9

10 Grounds of Inadmissibility..8 USC 1182(a) Grounds of Removability..8 USC 1227(a) Aggravated Felony.8 USC 1101(a)(43) CRIM SENTENCE DEPENDENT INADMISSIBILITY - 8 U.S.C (2) Criminal and related grounds (A) Conviction of certain crimes (i)in general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of (I)a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or (II)a violation of (or a conspiracy or attempt to violate) any law relating to a controlled substance (as defined in section 802 of title 21), is inadmissible. (ii)exception Clause (i)(i) shall not apply to an alien who committed only one crime if (I)the crime was committed when the alien was under 18 years of age, and the crime was committed more than 5 years before the date of application, or (II)the maximum penalty possible for the crime of which the alien was convicted did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). PA M3 (B) Multiple criminal convictions Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible. 10

11 CRIM SENTENCE DEPENDENT REMOVABILITY - 8 U.S.C (2) Criminal offenses (A) General crimes (i) Crimes of moral turpitude. Any alien who (I) is convicted of a crime involving moral turpitude committed within five years after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. PA M3 (ii) Multiple criminal convictions: Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable. (iii) Aggravated felony: Any alien who is convicted of an aggravated felony at any time after admission is deportable. (some Aggravated Felonies are sentence dependent, plz see next slide) AGG FELONY & IMPRISONMENT FOR 365+ DAYS (43)The term aggravated felony means (F)a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at least one year; (G)a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year; (H)an offense described in section of title 18 (relating to the demand for or receipt of ransom); (I)an offense described in section of title 18 (relating to child pornography); (J)an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed; (R)an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year; (S)an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year; 11

12 C.O.V. AGG FEL 18 U.S. Code 16 - Crime of violence defined The term crime of violence means (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the 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. CONTACT INFORMATION If you have any questions or would like help with an immigration/immigration consequences (Padilla) matter, please do not hesitate to contact Peter Thompson, Esq., at: peter@thompsonlawoffices.org Walnut Street, 21 st Floor Philadelphia, PA Thank you. 12