Immigration and Washington State Criminal Law

Transcription

1 Immigration and Washington State Criminal Law Including: Detailed Immigration Law Analysis and an RCW Quick Reference Chart for Determining Immigration Consequences of Selected Washington State Offenses Ann Benson & Jonathan Moore with Katherine Brady

2

3 Immigration and Washington State Criminal Law Including: Detailed Immigration Law Analysis and an RCW Quick Reference Chart for Determining Immigration Consequences of Selected Washington State Offenses Ann Benson & Jonathan Moore with Katherine Brady

4 By Ann Benson Director Washington Defender Association Immigration Project and Jonathan Moore Immigration Resource Specialist Washington Defender Association Immigration Project with Senior Staff Attorney Katherine Brady The Immigrant Legal Resource Center Washington Defender Association 2005 This project was supported by a grant from the Bureau of Justice Programs, U.S. Department of Justice. The Assistant Attorney General, Office of Justice Programs, coordinates the activities of the following program offices and bureaus: Bureau of Justice Assistance, Bureau of Justice Statistics, National Institute of Justice, Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crimes. Points of view or opinions contained within this document so not necessarily represent the official position or policies of the U.S. Department of Justice.

5 Acknowledgements This manual would not have been possible without the generosity and expertise of Katherine Brady, a senior staff attorney with the Immigrant Legal Resource Center (ILRC) in San Francisco, California. Significant portions of this manual are adapted from her excellent and comprehensive work. She has been an immigration attorney for over 20 years, and is a leading practitioner in the area of immigration law and crimes and coordinates the Ninth Circuit s portion of the Defending Immigrants Partnership, collaboration between the ILRC and public defender offices. She also authored California Criminal Law and Immigration (2004), one of the most definitive treatises on immigration law and crimes used by practitioners throughout the country. She and the ILRC have been gracious in allowing us to use portions of their materials. For more information on the ILRC and Katherine Brady, please refer to the resources listed in Appendix C Additional acknowledgement is due to Sarah Yatsko, the Washington Defender Association s (WDA s) Program Manager, for tremendous work in editing and overseeing the actual production of these materials. Without Sarah s oversight, these materials would never have made it into the hands and minds of those able to put them in good use. Elizabeth Calvin, star editing attorney, also contributed valuable edits to significant portions of these materials, making the manual more accessible to attorneys and advocates for whom immigration law is often experienced as bad rocket science. Lastly, thanks are also owed to Stacy Chen for her tireless and perfecting work of formatting this document. Thank you to all of you and to WDA for its ongoing commitment to defending and advancing the rights of noncitizens in the criminal justice system.

6

7 Introduction and Overview Often the most important issue facing noncitizen defendants charged with crimes is whether a conviction and sentence for any given offense will trigger certain provisions under the Immigration and Nationality Act (the INA) that will result in her deportation (a.k.a. removal) from the United States. Often noncitizen defendants do not realize just how important this issue is until it is too late. Under current provisions of immigration law, the consequences for obtaining criminal convictions can be severe. Noncitizens who plead guilty to a seemingly low-level misdemeanor offense (e.g., theft in the third degree, simple assault) can face disastrous consequences. Once convicted, noncitizens may face such harsh consequences as automatic deportation, permanent bars to returning to the United States, and possible indefinite detention by the Immigration and Customs Enforcement authorities (formerly known as the INS) regardless of how long they have lived in the United States, what family The only hope most non-citizens have of trying to avoid or mitigate harsh immigration consequences is to have competent defense counsel who can address these issues during their criminal proceedings. It is imperative that prosecutors and courts also are aware of the issues, and the magnitude of the consequences facing noncitizen defendants. ties they may have, or whether they are here legally. Moreover, the vast majority of noncitizen defendants (more than 85%) will be unrepresented (pro se) in their immigration proceedings. Most will be detained in Immigration & Customs Enforcement (ICE) detention facilities during these proceedings. Part One of this manual provides the basic framework of how to analyze immigration consequences facing a noncitizen defendant, as well as addressing the necessary relevant concepts under immigration law. Part Two is a chart of selected RCW offenses which provides a checklist format for attempting to determine the immigration consequences of any given offense. This manual is intended to assist defenders in more effectively representing noncitizen defendants. However, given the complexity of the subject matter, it will often be necessary for defenders to consult additional resources and/or with competent immigration counsel in order to explore all possible avenues for avoiding or mitigating immigration consequences. i

8 Washington Defender Association Immigration Project In recognition of the severe immigration consequences facing noncitizen defendants convicted of crimes, the Washington Defender Association (WDA) established the Immigration Project in The mission of WDA s Immigration Project is to defend and advance the rights of noncitizens within the criminal justice system facing the immigration consequences of crimes and the detrimental impacts of selective state and federal enforcement policies post-9/11. The WDA s Immigration Project focuses its work on three areas: 1. Providing case-by-case immigration-related technical assistance to criminal defenders representing noncitizens in criminal proceedings; 2. Offering on-going training and education to criminal defenders, prosecutors, judges, and others working in the criminal justice system; and 3. Participating in collaborative efforts to make the criminal justice system more effective in dealing with immigrant families. Contacting WDA s Immigration Project: Staff: Ann Benson, Directing Attorney [email protected] Telephone: Jonathan Moore, resource person [email protected] Telephone: WDA Website: Mailing Address: 810 Third Avenue, Suite 201, Seattle, WA Technical assistance requests are provided free of charge to WDA members. Criminal defense attorneys are requested and encouraged to support these and other WDA projects by becoming a member of WDA. This document, as well as additional Immigration Project resources, is available on the WDA website at: Join Washington Defender Association: WDA membership is open to all criminal defense counsel, investigators, and social workers. For more information or to join, please call or go to ii

9 General Table of Abbreviations BIA Board of Immigration Appeals CIS Citizenship & Immigration Service of the DHS CPR Conditional Permanent Resident CIMT Crime Involving Moral Turpitude DHS Department of Homeland Security 1 DOC Department of Corrections, Washington State FOIA Freedom of Information Act ICE Immigration & Customs Enforcement of the DHS INA Immigration and Naturalization Act LPR Lawful Permanent Resident (i.e., greencard holder) PCR Post-Conviction Relief USSG United States Sentencing Guidelines WSGC Washington Sentencing Guidelines Commission VAWA Violence Against Women Act 1 In March 2003, the Immigration and Naturalization Service was abolished and its functions were merged into the Department of Homeland Security. Three organizations within DHS now handle immigrationrelated functions: (1) Citizenship and Immigration Services (CIS) handles all applications for immigration benefits such as citizenship, lawful permanent residence and asylum; (2) Customs and Border Protection (USCBP) has authority over all ports of entry and land borders; (3) Immigration and Customs Enforcement is responsible for all internal enforcement of immigration laws. iii

10 Table of Contents Introduction and Overview...i Washington Defender Association Immigration Project...ii General Table of Abbreviations...iii Part I: Analysis of Immigration Law & Strategies for Defending Non- Citizens Accused of Crimes...1 Chapter One: Determining Immigration Consequences and Establishing Defense Goals for Your Noncitizen Client...3 A. Step One: Determining Your Client s Immigration Status U.S. Citizen Noncitizen or Alien...6 B. Step Two: Determine Defense Goals for Your Noncitizen Client Defense Goals for Undocumented Client Defense Goals for Client with Lawful Immigration Status Defense Priorities Where Client s Immigration Status Is Unclear...15 C. Step Three: Understanding Crime-Related Provisions of Immigration Law Crime-Related Deportation Grounds Crime-Related Inadmissibility Grounds Comparing Grounds of Deportability and Inadmissibility Aggravated Felony...22 Chapter Two: Convictions under Immigration Law...28 A. Overview of "Conviction" under Immigration Law...28 B. Misdemeanor vs. Felony...28 C. Inchoate Offenses Attempt, Conspiracy, and Solicitation...29 D. Deferred/Suspended Imposition of Sentence...29 E. Washington State Deferred Prosecutions...30 F. Pre-Plea Deferred Adjudications...31 G. Drug Cases Eliminating Conviction for Simple Possession or Less...32 H. Drug Addiction and Drug Abuse...32 I. Restraint on Noncitizen s Liberty...33 J. Juvenile Dispositions...33 K. Convictions on Direct Appeal...34 L. Expungements/Vacations under Immigration Law...34 M. Pardons under Immigration Law...35 N. Immigration Consequences of Bad Acts...36 Chapter Three: Sentencing Strategies...38 A. Definition of Sentence under Immigration Law...38 B. Offenses that Are Aggravated Felonies Due to One Year Sentence...39 C. Immigration Provisions Involving Sentence Length Crimes Involving Moral Turpitude (CIMT) as Grounds for Inadmissibility Crimes Involving Moral Turpitude (CIMT) as Grounds for Deportation Failure to Appear Offenses Racketeer Influenced Corrupted Organization (RICO) Offenses...42 iv

11 D. Suspended Sentences and Probation...42 E. Other Sentences and Dispositions Concurrent Sentences Indeterminate Sentence Sentence Enhancements Community Custody First Time Offender Waiver (FTOW) Drug Offender Sentencing Alternative (DOSA) Special Sex Offender Sentencing Alternative (SSOSA) Work Ethic Camp (WEC) Reduction or Commutation of a Sentence Juvenile Sentences Civil Commitments Conditional Release for Deportation of Noncitizens...49 Chapter Four: Carefully Crafting a Noncitizen s Plea...50 A. Overview: Categorical and Modified Categorical Analysis...51 B. Categorical Analysis: Elements of the Offense...51 C. Modified Categorical Analysis: Divisible Statutes and the Record of Conviction Identifying a Divisible Statute Record of Conviction: Determining the Elements of the Offense Defense Strategy: Charging Papers and Plea Agreements...53 Chapter Five: Crimes Involving Moral Turpitude...57 A. Grounds of Deportation for Crimes Involving Moral Turpitude...57 B. CIMT as a Ground of Inadmissibility Petty Offense Exception Youthful Offender Exception Inadmissible for Making Formal Admission of Crime Involving Moral Turpitude...58 Chapter Six: Drug Offenses...60 A. Overview of Immigration Penalties for Drug Offenses Aggravated Felony Definition of Illicit Trafficking as an Aggravated Felony Deportability Grounds Inadmissibility Grounds...61 B. Simple Possession or Less Minor Drug Offense Possession of Less than 30 grams of Marijuana Felony Simple Possession First Conviction for Simple Possession Drug Addiction and Abuse and Drug Court Drug Paraphernalia Offenses Case Examples Defense Strategies for Low Level Drug Offenses...66 C. Drug Trafficking Offenses and Strategies Trafficking Provisions Counterfeit Provisions Solicitation to Deliver or Manufacture Controlled Substance Rendering Criminal Assistance Delivery of Substance in Lieu of Controlled Substance Controlled Substance Not Identified Inadmissible for Reason to Believe Assisted Drug Trafficking Case Examples...71 v

12 Chapter Seven: Firearms and Other Weapons Offenses...73 A. Firearms Offenses as Grounds for Deportation The Firearms Ground of Deportation Definition of Firearms and Destructive Devices Sentence Length for Firearms Offense Irrelevant...75 B. Firearms Offenses That Are Aggravated Felonies Trafficking in Firearms or Destructive Devices Other Firearms Offenses Crimes of Violence Attempt or Conspiracy Convictions...78 C. Additional Safer Pleas & Strategies for Firearms Cases Sanitizing the Record of Conviction Malicious Mischief as an Alternative Negligent Assault...80 Chapter Eight: Domestic Violence, Stalking, Crimes against Children and Prostitution Offenses...81 A. Domestic Violence as a Ground of Deportation Definition of Domestic Violence as Ground of Deportation Noncitizens in Danger of Deportation for Domestic Violence Convictions Evidence Needed to Establish Requisite Domestic Relationship Defense Strategies to Avoid Triggering the Domestic Violence Ground of Deportation..83 B. Deportation for Violation of Protection/No Contact Orders...84 C. Stalking as Ground of Deportation...85 D. Child Abuse, Neglect, or Abandonment as Ground of Deportation...85 E. Prostitution as Ground of Deportation...86 Chapter Nine: Avoiding Convictions That Are Crimes of Violence...87 A. Analysis of Crimes of Violence under Immigration Law...87 B. Avoiding a Crime of Violence (COV) Offense Obtain a Sentence of Less than One Year in Non-Domestic Violence Cases Pleas to Assault in the Third Degree Pleas to Assault in the Fourth Degree Plea to Subsections that Do Not Involve the Use or Threat of Force Charges of Harassment...91 Chapter Ten: Burglary, Theft and Fraud Offenses...93 A. Burglary Burglary as an Aggravated Felony Burglary as a Crime Involving Moral Turpitude...94 B. Theft and Stolen Property Offenses Theft as Aggravated Felony Theft as a Crime Involving Moral Turpitude Stolen Property Offenses Stolen Property Offenses as Crimes of Moral Turpitude...96 C. Fraud Offenses Fraud Resulting in Loss to Victim of $10,000 or More Fraud Constituting Aggravated Felony Theft with Sentence of One Year or More...99 D. Pleas and Strategies for Fraud, Theft or Burglary Criminal Trespass in the First or Second Degree Malicious Mischief Possession of Burglary Tools Chapter Eleven: Driving Offenses A. Immigration Law and Driving Offenses Generally vi

13 B. Safer Pleas and Strategies for Driving Offenses Driving Under the Influence Malicious Mischief Disorderly Conduct Vehicular Assault per DUI prong Reckless Driving Reckless Endangerment Chapter Twelve: Alternate Pleas with Less Severe Immigration Consequences A. Introduction B. Rendering Criminal Assistance as a Substitute Plea C. Safer Pleas for Violent or Sexual Offenses Third and Fourth Degree Assault Arguing Simple Assault Is Not a Crime of Violence Sexual Motivation Enhancement/Communication with a Minor for Immoral Purposes Unlawful Imprisonment D. Sentence of 364 Days or Less E. Using Anticipatory Offenses Step-Down to Avoid Deportability for Attempted Theft F. Clients Who Don t Know They Are Citizens H. Compromise of a Misdemeanor I. Aiding and Abetting Offenses Part II: RCW Quick Reference Chart for Determining Immigration Consequences of Selected Washington State Offenses An RCW Quick Reference Chart A. How to Use This Chart The Chart An Overview Reading the Chart Table of Abbreviations B. The RCW Quick Reference Chart for Determining Immigration Consequences C. Quick Guide to Cancellation of Removal for Legal Permanent Residents (LPRs) Appendix A: WDA s Immigration Project Questionnaire WDA s Immigration Project Intake Questionnaire...Error! Bookmark not defined. Immigration Questionnaire - Expanded Version Appendix B: Immigration Safe Language for Agreements Immigration Safe Deferred Adjudication Agreements Alternative Language for Pre-Trial Diversion Agreements/SOCs Appendix C: Additional Resources A. Online Resources B. Books & Written Materials C. Immigration Attorney Referrals for Washington State Conclusion vii

14

15 Part I Analysis of Immigration Law & Strategies for Defending Non-Citizens Accused of Crimes Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 1

16 Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 2

17 CHAPTER ONE Determining Immigration Consequences and Establishing Defense Goals for Your Noncitizen Client This chapter is a guide for three key steps defense attorneys can take to effectively represent a noncitizen client: Step One: Determine your client's immigration status; Step Two: Define defense goals for your noncitizen client based upon his/her immigration status, current criminal charges, and prior convictions; Step Three: Analyze crime-related immigration provisions and alternative strategies to achieve defense goals for your noncitizen client. In addition, there are three tools in this manual that the reader can flag for easy reference. Follow the Flow Chart. The flow chart on the next page provides an initial framework to how to analyze the immigration consequences of criminal offenses and steps defenders can take to protect their noncitizen clients. Consult the Quick Reference Chart. The Quick Reference Chart located in Part II of this manual, details which Washington offenses may make a noncitizen subject to removal by rendering him deportable or an aggravated felon under the provisions of the immigration statutes. This section also discusses how criminal defense counsel can use this information to establish defense goals for individual noncitizen clients. Complete the Immigration Intake Questionnaire. The starting point for analyzing defense goals and the immigration consequences facing your client is to complete the brief Immigration Intake Questionnaire located at the end of these materials. 2 The information obtained from the questionnaire is critical to undertake the analysis outlined by this manual. To make an adequate analysis of a noncitizen s defense priorities and immigration consequences, the defense counsel must have a complete record of all past convictions as well as key information about immigration status and possibilities. Counsel should photocopy all immigration documents. 2 Additionally, the more detailed Client Intake Questionnaire developed by the Immigrant Legal Resource Center is included in Appendix A. Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 3

18 Flowchart to Assist In Determining Immigration Consequences Is Defendant a U.S. Citizen? If yes, STOP. Defendant cannot be deported or removed. Defense Goals for a Client with LAWFUL IMMIGRATION STATUS (i.e., greencard, refugee, asylee, current student visa). If not a U.S. citizen, then determine whether defendant has lawful immigration status or is undocumented. See NOTE 1 below and Part A of this chapter. Defense Goals for a Client with NO LAWFUL IMMIGRATION STATUS (i.e., "undocumented). Avoid convictions for the types of crimes that are grounds of deportation. See NOTE 2 below and Part C of this chapter. Avoid convictions for the types of crimes that are grounds of inadmissibility (grounds of deportation not relevant). See Part C of this chapter. Avoid convictions that meet the immigration definition of "aggravated felony." See Part C of this chapter. Help client stay out of criminal custody in order to avoid detection and initiation of proceedings by immigration authorities and advise client to avoid all other contact with immigration authorities. NOTE 1: Generally, people become U.S. citizens by: birth in the U.S.; birth to a U.S. citizen parent; or application for citizenship after a period of lawful permanent residence (LPR) in the U.S. Under 8 USC 1431, certain persons AUTOMATICALLY acquire citizenship (regardless of any criminal offenses) where they are LPRs and were in the legal and physical custody of a parent who becomes a U.S. citizen prior to the person s 18 th birthday. Counsel should inquire into this possibility, as many people who automatically acquired citizenship are not aware of it. NOTE 2: Avoiding deportation is the primary concern. However, the grounds of inadmissibility (defined in Chapter 1, Section 2b) are a secondary consideration for lawful permanent residents, asylees, and refugees. A conviction that does not trigger deportation may trigger the different grounds of inadmissibility, which could preclude these groups of noncitizens from seeking re-admission to the U.S. after departure abroad. A conviction triggering the grounds of inadmissibility could also preclude any future applications for benefits such as citizenship (for LPRs) or lawful permanent resident status (for refugees and asylees). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 4

19 A. Step One: Determining Your Client s Immigration Status The term immigration status refers to a person s classification under United States immigration laws. To adequately protect the interests of a noncitizen client, a defense attorney must first find out the client's immigration status. This section explains the possible classifications of immigration status under U.S. immigration law. It also refers to other important immigration concepts, such as "inadmissibility," "aggravated felony," and "criminal grounds for deportability." These concepts will be explained in detail later in this manual, but it is best to start by gaining an understanding of immigration status. 1. U.S. Citizen U.S. citizenship, if validly acquired, may not be lost as a result of any criminal act or conviction. Citizens may never be deported or refused admission to the United States. a. Citizenship by Birth or by Parents A person is a U.S. citizen if born in the United States or born to U.S. citizen parents, or becomes a U.S. citizen through a legal process called "naturalization." b. Acquired Citizenship Perhaps your client is a U.S. citizen and doesn t know it? Many persons born in other countries may unknowingly inherit U.S. citizenship from their parents under one of several provisions of nationality law. In particular, defense counsel should be aware of 8 USC 1431, which provides that a person automatically acquires citizenship regardless of any criminal convictions (or other considerations) if the following four conditions are met: At least one parent is or becomes a U.S. citizen by birth or naturalization; The child is under 18; The child is a lawful permanent resident; and The child is in the legal and physical custody of the citizen parent. A prior version of this provision 3 required both parents to become U.S. citizens, or proof that the child was in the legal custody of the citizen parent if there had been divorce or separation. The new version of the law became effective on February 27, The courts have determined that it is not retroactive and that the person must have been under 18 on the effective date to benefit from the new provisions of 8 USC USC 1432; INA 321 [repealed]. 4 Hughes v. Ashcroft, 255 F.3d 752 (9 th Cir. 2001); Matter of Rodrigues-Tejedor, 23 I. & N. Dec. 153 (BIA 2001). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 5

20 The best, most efficient way to obtain proof of acquired citizenship is to apply for a U.S. passport. See for an application and information on how to do this. 2. Noncitizen or Alien A person who is not a U.S. citizen and falls within one of the categories listed below is a noncitizen. The immigration laws, the immigration authorities within the Department of Homeland Security s ICE, Citizenship & Immigration Service (CIS), and the immigration and federal court systems all refer to such persons as "aliens." Anyone who is not a U.S. citizen is always subject to the possibility of deportation/removal regardless of her circumstances. a. Lawful Permanent Resident or Greencard Holder A Lawful Permanent Resident (LPR) is not a U.S. citizen but is permitted to live and work legally in the U.S. permanently. It is the most secure immigration status, short of being a U.S. citizen. However, LPR s are still subject to removal at any time if they violate the immigration laws. There are two types of permanent residents: Lawful Permanent Residents (LPR s) and Conditional Permanent Residents (CPR s). 5 Permanent residents are given greencards which state Resident Alien across the top of the card. Greencards actually are pink or white in color, not green. LPR status does not expire, although the greencard itself must be renewed. LPR status can only be revoked by an immigration judge or by leaving the U.S. for such a period of time that it is deemed abandoned. b. Refugee or Asylee Both refugees and asylees have been granted safe haven in the United States because they have established that they would suffer or have suffered persecution in their country of origin. Refugees are accorded refugee status abroad by a U.S. Consulate before relocating to the U.S. Asylees come to the U.S. and request protection from persecution following their arrival. Refugees and asylees are both entitled to apply for lawful permanent resident status after they have been in the U.S. as an official refugee or asylee for one year. In order to be granted LPR status, refugees and asylees must prove that they are not subject to any of the grounds of inadmissibility at 8 USC 1182(a), which include the crime-related grounds at 8 USC 1182(a)(2). While in refugee or asylee status, these persons will be given work permits which state Employment Authorization across the top of them and are approximately the size of a driver s license. For purposes of removal, refugees and asylees are 5 A conditional permanent resident (CPR) is a lawful permanent resident who gains status through marriage to a U.S. citizen where the marriage is less than 24 months old at the time of adjudication of the application for residence. CPR status expires after two years and an additional petition must be filed to become a regular permanent resident. 8 USC 1186a and INA 216. Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 6

21 subject to the criminal grounds of deportability, which includes aggravated felony definition. For further discussion of Aggravated Felony, please consult section C4 of this chapter. c. Nonimmigrant Visa Holder A nonimmigrant visa holder is a person who obtained a temporary visa allowing them to enter and remain in the United States legally for a specific period of time under specific conditions. Some examples of nonimmigrant visas are: tourist visas, student visas, temporary work visas (e.g., H1-B) and diplomatic visas. Nonimmigrant visa holders who violate the terms of their visa (e.g., students who drop out of school or who stay longer than permitted) become "undocumented," meaning they no longer have lawful status in the U.S. As such, they are subject to removal from the country. Nonimmigrant visa holders are also subject to the criminal grounds of deportability, which incorporate the aggravated felony definition. d. Undocumented Person or Illegal Alien An undocumented person is someone who does not have legal status under the immigration laws to be in the U.S. There are two 6 categories of undocumented persons: A nonimmigrant visa holder whose visa has expired or been terminated (i.e., a foreign student who drops out of school or a tourist who overstays a visa). For purposes of removal, these persons are subject to the criminal grounds of deportability (which incorporate aggravated felony); and A person who entered the United States illegally and has never had lawful immigration status. For purposes of removal, these persons are subject to the criminal grounds of inadmissibility and the aggravated felony definition. Note that there are people who are presently undocumented but may be eligible to apply for lawful status, such as someone who is married to a U.S. citizen. 7 e. Work Permits or Employment Authorization Documents Immigration authorities issue work permits or employment authorization documents (EAD) of temporary duration to certain categories of noncitizens. Work permits do not confer lawful status. The permit allows the person to work lawfully for the duration specified. Some examples of noncitizen categories for 6 People who used to have status, but who now have a final order of removal (and are not under an order of supervision ) are of course also undocumented. 7 Marriage to a U.S. citizen does not automatically confer any lawful status on someone. It simply entitles a person to apply for lawful permanent resident status. This is a complex process involving numerous applications where in the noncitizen must prove, inter alia, that he is not subject to any of the grounds of inadmissibility at 8 USC 1182, including the crime related grounds at 8 USC 1182(a)(2). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 7

22 which work permits are issued include: (1) persons who are married to U.S. citizens and in the process of applying for their greencards based upon their marriage; (2) persons in the process of applying for, or who have been granted asylum or refugee status; (3) persons who come from countries whom the U.S. has granted temporary protected status (e.g., persons from Honduras following Hurricane Mitch). Practice Tips Problem: Client Goal: Defense Action: 1. Client cannot obtain lawful status if found "inadmissible." 2. Many convictions can trigger the crime-related grounds of inadmissibility. Protect existing options for obtaining lawful status and avoiding apprehension by immigration authorities. 1. Avoid conviction for the types of crimes that create grounds of inadmissibility. 2. Avoid conviction for crimes that constitute aggravated felonies. 3. Get client out of jail to avoid encountering Immigration authorities, but not if this results in a conviction that makes client inadmissible. B. Step Two: Determine Defense Goals for Your Noncitizen Client A noncitizen client's immigration goals will depend on his immigration status. A defense attorney will need to adjust her plan of action according to the client's goals. Step Two is to identify the client goals and the defense action needed to achieve those goals. Once defender and client have defined the goals relating to possible immigration consequences, Step Three provides specific information about the immigration law provisions that need to be addressed in working to meet these goals. The rest of the manual will provide strategies and more detailed analysis on how to do this. 1. Defense Goals for Undocumented Client a. Undocumented Client with Options for Obtaining Lawful Immigration Status Whether because she entered illegally or because her nonimmigrant visa has expired, an undocumented person is already subject to removal because she has no lawful status. The only hope that she has of remaining lawfully in the U.S. is if she is entitled to request immigration status through one of several but limited legal avenues (e.g., marriage to a U.S. Citizen, asylum, some other form of relief Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 8

23 from removal). 8 This will require that she not trigger any of the crime-related grounds of inadmissibility. Thus, for undocumented noncitizens, avoiding a conviction that creates grounds of inadmissibility is the highest priority. (In the majority of cases, the grounds of deportability are irrelevant to an undocumented person.) Practice Tips Defense counsel must consult the grounds of inadmissibility at 8 USC 1182(a)(2), defined in Chapter 1, Section 2b, and seek to negotiate a resolution that will not trigger any of its provisions. Staying or getting out of jail is also a priority to avoid detection by immigration authorities. However, counsel should be careful to advise this group of clients not to accept a plea to a conviction that would eliminate their options for lawful status just to get out of jail without clearly understanding the long-term consequences. Problem: Client Goal: 1. The longer a client is in jail, the more likely it is that she will be detected by the ICE and deportation/removal proceedings will be initiated. 2. A plea of guilty to certain crimes will make her ineligible for lawful status in the future. Avoid encounters with ICE because it will result in deportation. Protect interests in case he becomes eligible for lawful status in the future. Defense Action: 1. Assess whether a guilty plea to get out of jail quickly is the best option. 2. Avoid, when possible, a conviction for the types of crimes that will trigger the crime-related grounds of inadmissibility and, thus, impair the client's ability to get legal status in the future. 3. Avoid a conviction that would constitute an aggravated felony. Example: Tamara is a Canadian citizen who entered the U.S. in 2002 as a tourist. She has never returned to Canada. In 2004, she married Everett, a U.S. citizen. They have not yet begun the process of applying for Tamara s lawful permanent resident status based upon her marriage to Everett. She is now charged with a DUI offense. Her highest priority will be to avoid a conviction that will trigger a ground of inadmissibility under 8 USC 1182(a)(2) and, thus, interfere with her eligibility to get her LPR status. 8 For a summary of avenues of relief from removal and avenues for obtaining lawful status, please see the section on Relief from Removal at the online resources link of the WDA s Immigration Project website at Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 9

24 b. Undocumented with No Options for Obtaining Lawful Immigration Status Undocumented persons who don t have any way to defend against removal or apply for lawful status have a priority that may at times compete with the defense of a criminal case: they may decide that they need to avoid contact with immigration authorities at any cost. The way to avoid contact with immigration authorities is to avoid being in jail, where an immigration hold is likely to be placed on the person, who is then likely to be taken into immigration custody upon release from jail. After informed consideration, such a defendant with no defenses may decide that it is in her best interest to accept a plea that gets or keeps her out of jail, before she encounters immigration officials, even if the plea has adverse immigration consequences. This is a decision that only the person herself must make, after understanding the long and short-term life consequences (i.e., that such a conviction is likely to render her permanently ineligible to ever obtain lawful status). Practice Tips Problem: Client Goal: A conviction for an aggravated felony results in virtually certain deportation often under expedite procedures with little due process. It also eliminates almost all avenues for obtaining lawful status in the future. In addition, an aggravated felony conviction creates significant sentence enhancements in any subsequent prosecution for illegal re-entry after deportation. (For more on Aggravated Felony, please see Chapter 1, Section C4.) Avoid encounters with ICE because it will result in deportation. Protect interests in case he becomes eligible for lawful status in the future. Defense Action: Analyze the broad array of crimes that fall within the definition of aggravated felony and help avoid convictions for these crimes. Example: Esteban is an undocumented person who has no defense against being removed. If immigration authorities locate him they will place him in removal proceedings. Esteban may decide to accept a guilty plea that will make him inadmissible if that is the only way to get out of jail quickly to avoid an immigration hold or detainer. (In the best of all worlds, however, Esteban would plead to an offense that both got him out of jail quickly and that did not make him inadmissible because it always is possible that he would become eligible to apply for status someday in the future.) Example: Emma is an undocumented person who may be eligible to immigrate through a family member within a year or so. Although she has no immediate defense or application, it still might well be worth risking exposure to immigration authorities if that is what s needed to get to a plea Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 10

25 that preserves her eligibility for family immigration. Counsel should discuss the case with an immigration expert to weigh competing interests. An additional consideration for any noncitizen is the importance of avoiding a conviction that would constitute an aggravated felony under 8 U.S.C 1101(a)(43). An "aggravated felony" in this context is a specific immigration law term. The list of crimes meeting this definition is described in detail in section C4 of this chapter, but for now, keep in mind that aggravated felonies are not always felonies, nor are they what most defenders would consider aggravated. What can be said unequivocally, however, is that an aggravated felony conviction will have dire ramifications for a noncitizen. First, an undocumented person convicted of an aggravated felony is subject to an expedited removal process that is devoid of most due process protections. Second, an aggravated felony conviction eliminates virtually all avenues for obtaining lawful status in the future. 9 Finally, noncitizens who are deported and return illegally are at risk of prosecution for the federal crime of See Section C4 for an overview analysis and a list of offenses contained in the aggravated felony definition. illegal reentry under 8 U.S.C An aggravated felony conviction will greatly increase the penalty for that crime and the client will face significant sentence enhancements for a conviction that constitutes an aggravated felony. Summary and Practice Tips Problem: Client Goal: A person who illegally reenters the U.S. after having been deported can be charged with the federal crime of illegal reentry. Certain prior convictions result in significant sentencing enhancements if convicted of illegal reentry. 1. Avoid apprehension and prosecution for illegal reentry. 2. Reduce risk of a greatly enhanced sentence in a future conviction for the crime of illegal reentry. Defense Action: 1. Get the client out of jail prior to detection by immigration authorities. 2. Avoid convictions for that will trigger sentence enhancement provisions under USSG 2L1.1, including aggravated felonies. 3. Advise client of the serious ramifications for reentry after deportation, particularly with a prior conviction that will trigger sentencing enhancements. 9 8 USC 1228(b); INA 238(b). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 11

26 c. Undocumented with Prior Order of Deportation/Removal A person who is undocumented and has a prior order of deportation has virtually no chance of ever obtaining legal status. Further, if he reenters the country he faces the risk of being prosecuted for the federal crime of illegal reentry after deportation/removal. 10 Even worse are the severe sentence enhancements for an illegal reentry conviction when the defendant has prior convictions of certain crimes. For these clients, it will probably be important to get out of jail as soon as possible before there is an immigration hold or detainer. However, defense counsel must do everything possible to also ensure that this client does not end up with a conviction that will trigger significant sentence enhancements. This situation is not an unusual one. An enormous number of federal criminal cases over 30% of the caseload of Federal Public Defenders in Eastern Washington involve noncitizens charged with illegal re-entry into the United States, with a sentence enhancement imposed for having a prior deportation or removal and prior conviction of certain crimes. 11 Two types of crimes cause the most serious sentence enhancement: conviction of an aggravated felony, and conviction of certain other felony offenses. Just how bad is the sentence enhancement? It is significant. Federal court uses a complex sentencing system that is not unlike Washington state's: sentencing guidelines mandate an increase in the length of sentence as levels determined by prior convictions increase. To give a general idea of the seriousness of a prior conviction, consider that the base level for an illegal reentry sentence is eight. That level will be increased between four and sixteen levels for prior convictions. Many noncitizen defendants convicted in state court will be deported immediately after serving their state sentence. It is not unusual for people in these circumstances to attempt to re-enter the United States illegally. Criminal defense counsel must advise these noncitizen clients of the consequences of proposed pleas under the federal sentencing guidelines, both of aggravated felony and felony offenses, and whenever possible, fashion a plea to protect them. (For an illustration of this, see the examples of enhancements given in this section.) d. Crimes That Mandate an Enhanced Sentence for Illegal Reentry Increase by 16 levels: Drug trafficking, and the sentence is more that 13 months; Crime of violence (see definition below); Firearms offense; Child pornography offense; 10 8 USC 1326; INA USC 1326; INA 276. Section 1326(b)(1) penalizes re-entry after any felony conviction, which is the section under which the felony crime of violence and other offenses discussed here are charged. Section 1326(b)(2) penalizes re-entry after an aggravated felony. Federal criminal defense counsel should contest sentencing if this distinction was not preserved in the charge. Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 12

27 National security of terrorism offense; Alien smuggling offense. 12 Increase by 12 levels: Drug trafficking and the sentence is less than 13 months. Increase by 8 levels: Aggravated felony (as defined under immigration law, see Chapter One, Section C.4, for a description). Increase by 4 levels: Any other felony; Three or more misdemeanors that are crimes of violence (see definition below) or drug trafficking offenses. A crime of violence can result in a severe sentencing enhancement in federal court for a reentry prosecution. It is defined in the federal sentencing guidelines as including the following felony offenses: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. 13 Note that the USSG crime of violence definition used here is not precisely the same as the definition of crime of violence under 18 USC 16, used in determining an aggravated felony. Note also that the definition of firearms offense includes felony possession of a firearm and crime of violence includes felony statutory rape. Let's look at a case example to see how a conviction for an aggravated felony would affect a client later charged with illegal reentry. Example: Luis is an undocumented worker who has lived in the U.S. for some years and has two U.S. citizen children. He has no current means of getting lawful immigration status. He has been convicted of his first offense, felony assault in the second degree under RCW 9A He is sentenced to 7 months and placed on five years probation. His public defender is relieved that this is not an aggravated felony. While Luis conviction might be classed as a crime of violence under 18 USC 16, a sentence of a year or more was not imposed. Immigration authorities pick up Luis once his jail term is over, and eventually is removed to Mexico based on his unlawful status. 12 U.S. Sentencing Commission Guidelines Manual, USSG 2L1.2(b)(1)(A)(2004). 13 USSG 2L1.2, comment (n.1)(b)(iii) (2004). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 13

28 Luis immediately re-enters the United States to return to his family. He is detected by authorities and charged in federal proceedings with illegal reentry after removal and a prior conviction, not of an aggravated felony, but of a separately defined felony crime of violence. While an aggravated felony (e.g., his assault if a one-year sentence had been imposed) would only have rated a sentence increase of 8 levels, under the felony crime of violence category he receives an increase of 16 levels, even though he was sentenced to only seven months for the underlying crime in state court Defense Goals for Client with Lawful Immigration Status a. Defense Priorities for Lawful Permanent Residents The highest defense goal for a lawful permanent resident (LPR) is to avoid becoming deportable for an aggravated felony because this will not only subject him/her to removal proceedings, but eliminates his eligibility for virtually all forms of relief from removal. After avoiding deportation for aggravated felony, a LPR s next highest priority is to avoid becoming deportable under some other ground (and in particular under a ground relating to controlled substances). Practice Tips Problem: Client Goal: 1. A person with lawful status can be deported if convicted of certain crimes. 2. If convicted of an aggravated felony, not only will person with lawful status be deportable, but she will lose eligibility for virtually all forms of relief from deportation. Maintain lawful status and avoid deportation. Defense Action: 1. Know the broad array of crimes that fall within the definition of aggravated felony and help avoid convictions. 2. Avoid conviction for other offenses that are grounds for deportation. 3. If possible, avoid conviction for crimes that are grounds for inadmissibility. A permanent resident who becomes deportable will at some point be placed in removal proceedings, where an immigration judge can take away the person s status and order her deported ( removed ) from the United States. If the deportable permanent resident has not been convicted of an aggravated felony, however, she might be able to apply for some relief. A common form of relief for deportable permanent residents who have not been convicted of an aggravated felony is 14 See discussion of similar facts, U.S. v. Pimentel-Flores, 339 F.3d 959 (9 th Cir. 2003). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 14

29 cancellation of removal. 15 Or, if not deportable for a drug offense, the resident might be able to re-immigrate through a close citizen or permanent resident family member. If a permanent resident is already deportable due to prior convictions or is about to become deportable, criminal defense counsel must consult with immigration counsel to understand what defenses against removal exist, and how to preserve eligibility for the defense. Finally, avoiding a conviction that would trigger the grounds of inadmissibility is the third priority for a LPR. A LPR whose conviction makes him/her inadmissible but not deportable is safe, as long as he does not leave the United States. If a permanent resident who is inadmissible for crimes leaves the U.S. even for a short period, she can be barred from re-entry into the U.S. Even if she manages to re-enter, she can be found deportable for having been inadmissible at her last admission. Also, an inadmissible permanent resident must delay applying for naturalization to U.S. citizenship for up to five years. b. Defense Priorities for Refugee and Asylee Clients Defense priorities for refugees and asylees are the same as those for LPRs: avoid aggravated felony convictions and avoid other crimes that are grounds for deportation. However, there is one additional concern for defense attorneys with a refugee or asylee client. A refugee or asylee becomes eligible to apply for LPR status after one year in the U.S. In order to be granted LPR status, a refugee or asylee must show that there are not any grounds that would make him/her inadmissible. Thus, a defense attorney must try to avoid convictions that are the grounds for inadmissibility in addition to avoiding aggravated felony and convictions that are grounds for deportation. c. Defense Priorities for other Lawful Immigration Status Defense priorities for a client with some other type of current lawful status are the same priorities as those for LPRs and refugees/asylees. Because a student or tourist visa is temporary, if a client wishes to stay in the U.S. she will need to leave and reenter the U.S., extend the period of her visa, or apply for LPR status. In any of these scenarios, he will have to show that there are not grounds that make him/her inadmissible. A defense attorney must try to avoid convictions that are the grounds for inadmissibility, in addition to avoiding aggravated felony and convictions that are grounds for deportation. 3. Defense Priorities Where Client s Immigration Status Is Unclear Where defense counsel cannot determine the immigration status of the client, it is imperative to obtain as much immigration history as possible (see Appendix A: Extended 15 For more information, please see Part II, Section C of this manual Quick Guide to Cancellation of Removal for Legal Permanent Residents. Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 15

30 Client Immigration Intake Questionnaire) and then contact immigration counsel to assist in determining the client s status. In the meantime, defense counsel must try to avoid a conviction that will trigger any of the grounds of inadmissibility, deportability, or constitute an aggravated felony. The most important of these three is to avoid a conviction for an aggravated felony offense. C. Step Three: Understanding Crime-Related Provisions of Immigration Law Once defense counsel has identified the client s immigration status, outlined the client s goals, and determined the client s defense actions, then defense counsel must analyze what convictions should be avoided to minimize immigration penalties for noncitizen clients. There are three categories of crime-related provisions in immigration law. They comprise the most common, but not all, of the adverse immigration consequences that follow from convictions. 16 They are: The grounds of deportability, at 8 USC 1227(a); The grounds of inadmissibility, at 8 USC 1182(a); and The definition of aggravated felony, at 8 USC 1101(a)(43). Determining which of these three provisions applies to a noncitizen generally depends upon three factors relating to the client: Immigration status; Prior criminal history; and Immigration-related defense goals determined in Step Two (e.g., is he at risk for deportation/removal? Applying for citizenship? Seeking reentry into the U.S. after a trip abroad?). The next sections of this chapter provide a list of these immigration-related provisions and when they apply. 1. Crime-Related Deportation Grounds a. When Crime-Related Deportation Grounds Apply The crime-related grounds of deportation 17 apply to any noncitizen who has been lawfully admitted to the United States, including 16 They are, however, not all of the adverse consequences flowing from convictions. Other consequences beyond being deportable, inadmissible or an aggravated felon can adversely affect persons applying for asylum (if convicted of a particularly serious crime ), temporary protected status (if convicted of two misdemeanors or a felony), or other types of immigration status. 17 8USC 1227(a)(2); INA 237(a)(2). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 16

31 any noncitizen who is a lawful permanent resident (greencard holder); refugees, asylees; and anyone admitted on a nonimmigrant visa such as a tourist or student visa, even if his or her status has expired. The Immigration & Customs Enforcement (ICE) branch of the Dept. of Homeland Security (DHS) will initiate deportation/removal proceedings against lawfully admitted noncitizens who are alleged to have criminal convictions (or in several instances, conduct) that ICE asserts fall within these grounds of deportation. 18 The ICE will file what is called a Notice to Appear with the Immigration Court charging the noncitizen with deportability. Nearly all noncitizens facing removal under the grounds of deportation will be subject to mandatory detention for the duration of their deportation/removal proceedings. 19 Once in removal proceedings, an immigration judge can take away the person s status and order him/her deported ( removed ) from the United States. For this to happen based upon a criminal conviction, the government (DHS) has the burden to prove that the conviction falls under one of the grounds of deportation (e.g., is a firearms offense that triggers deportation under that ground). In meeting its burden of proof, the government is limited to only documents that fall within the record of conviction. Thus, how defense counsel structures a plea agreement for a noncitizen may be critical to whether she will be ordered removed under a ground of deportation. See Chapter Four: Carefully Crafting a Noncitizen s Plea. Overview Crime-related grounds of deportation apply to and therefore must be avoided by noncitizens with lawful status, especially permanent residents (greencard holders), refugees and asylees. The highest priority for permanent residents is to avoid conviction for an aggravated felony (which is a ground of deportation.) Undocumented persons are more concerned with the grounds of inadmissibility, not the grounds of deportability. The crime-related grounds of deportation do not apply to undocumented persons who entered illegally and have never had lawful status. If the person is a deportable noncitizen but has not been convicted of an aggravated felony he may be eligible to apply for some relief from removal. A common form of relief for deportable permanent residents who have not been convicted of an 18 8USC 1229; INA USC 1226(c); INA 236(c). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 17

32 aggravated felony is cancellation of removal. 20 Or, if not deportable for a drug offense, the noncitizen might be able to immigrate or re-immigrate through a close citizen or permanent resident family member. In contrast, coming within the grounds of deportability usually does not hurt undocumented persons. Undocumented persons are those who entered the United States without inspection (i.e., slipped surreptitiously across the border) or entered lawfully with a nonimmigrant visa that has now expired. They are already deportable, because they have no current documents. To become deportable for crimes would just make them twice as deportable. Instead, the undocumented person s immigration strategy should be to mount a defense against being removed by asserting eligibility to apply for immigration status or get some form of relief. This often will require him to be admissible (see below). b. List of Crime-Related Deportation Grounds 21 Conviction of any offense relating to controlled substances; Conviction for one crime involving moral turpitude (CIMT) 22 if the offense carries a maximum possible sentence of one year or more and was committed within five years of last admission; Conviction for two or more CIMTs after admission to the U.S. unless the crimes were part of a single scheme of criminal misconduct ; Conviction of an aggravated felony since admission; Conviction of a firearms offense since admission; Conviction since admission and since 9/30/96 of one of the following: o A domestic violence offense against a person, o Stalking, or o Child abuse, abandonment or neglect; A civil or criminal court finding (no conviction required) of a violation of a domestic violence protection order, including a no contact order; Conviction of managing a prostitution business; Evidence (no conviction required) that a person was a drug abuser or addict at any time since admission. 20 For more information, please see Part II, Section C of this manual Quick Guide to Cancellation of Removal for Legal Permanent Residents USC 1227(a)(2); INA 237(a)(2). 22 Please see Chapter 5 on Crimes Involving Moral Turpitude for more background and information on CIMT s. Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 18

33 2. Crime-Related Inadmissibility Grounds a. When Crime-Related Inadmissibility Grounds Apply The grounds for inadmissibility affect a wide range of people including the undocumented person hoping to apply for a greencard based on his marriage to a U.S. citizen, a person lawfully present as a refugee who then seeks to apply for her greencard, and virtually all other persons seeking immigration benefits. 23 All of these people must be found to be "admissible," or if held to be inadmissible, they must be eligible for a waiver of the inadmissibility grounds. People face being found inadmissible on crime-related grounds when they apply for some status or benefit from the government. There are many grounds of inadmissibility under 8 USC 1182 of the immigration statute. These materials, however, focus on the crime-related grounds of inadmissibility. The crime-related inadmissibility grounds apply to noncitizens in the following circumstances: Undocumented noncitizens who entered the country illegally and have no legal status in the United States when the ICE initiates removal proceedings against them: The ICE will charge them with being inadmissible for being in the U.S. without status and, in addition, for any crime-related grounds of inadmissibility that apply. Unlike the case of deportation grounds, here, the noncitizen has the burden to prove beyond doubt that she is admissible. Any person who is not a U.S. citizen including lawful permanent residents (greencard holders), refugees and asylees who is seeking entry or re-entry into the U.S: if the noncitizen falls within any of these grounds of inadmissibility, he will be deemed inadmissible to the U.S. and denied entry. Any noncitizen applying for lawful permanent resident status (a greencard) will be subject to these grounds of inadmissibility. This includes noncitizens married to U.S. citizens and refugees and asylees. If the applicant falls within any of these grounds, she will be deemed ineligible for her greencard. Lawful permanent residents applying for U.S. citizenship (and certain noncitizens applying for other immigration benefits) must show that they are a person of good moral character (GMC). If the applicant falls under any of the grounds of inadmissibility, 23 Some forms of relief for undocumented persons have requirements beyond being admissible. For example, an applicant for Temporary Protected Status must not be convicted of more than one misdemeanor, and an applicant for asylum must not be convicted of a particularly serious crime. An individual analysis must be done in each case. See Appendices Resources and Client Immigration Questionnaire. Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 19

34 he will be barred from showing GMC during the period for which it is required (e.g., citizenship applicants must show five years of GMC). Example: Maurice overstayed his tourist visa years ago and is now undocumented. However he is married to a U.S. citizen who can file a family visa petition for him. Because he was lawfully admitted to the U.S., he will be subject to the deportation grounds. However, he does not care about convictions that make him deportable he s already deportable. He cares about avoiding the grounds of inadmissibility, because he intends to apply for a family visa and become a lawful permanent resident to avoid removal. For LPR s, there is some good news. Inadmissibility grounds do not make an LPR deportable--they just result in the LPR not being able to reenter the country if she leaves. A permanent resident who becomes inadmissible but not deportable is safe, as long as she does not leave the United States. If a permanent resident who is inadmissible for crimes leaves the U.S. even for a short period, she can be barred from re-entry into the U.S. 24 Even if she manages to re-enter, she can be found deportable for having been inadmissible at last admission. Example: Boris is a lawful permanent resident. He is charged with possession with intent to deliver a controlled substance under RCW His defender is able to avoid deportation by negotiating for Boris to plead guilty to solicitation to deliver a controlled substance under RCW 9A After his release from prison, Boris wants to travel back to Russia to visit his grandparents. If he leaves the U.S., he will be subject to the grounds of inadmissibility upon his return. He will lose his lawful permanent resident status and face removal back to Russia, even though it did not trigger a deportation ground, since his criminal behavior/conviction is likely to trigger the inadmissibility ground that bars admission for noncitizens for whom the government has reason to believe that they alien has engaged in the illicit trafficking in a controlled substance. 25 Overview Inadmissibility grounds will render a noncitizen for lawful permanent resident (LPR) status and must be avoided by undocumented persons who could qualify to apply for a greencard (usually through an immediate family member), and by refugees and asylees (who are otherwise eligible to apply for LPR status). Noncitizens who already have their lawful permanent resident status (greencard holders) will not be subject to the crime related grounds of inadmissibility unless they leave the U.S. Thus, an LPR with a crime that renders him/her inadmissible (but not deportable) should never leave the U.S USC 1101(a)(13)(C); INA 101(a)(13)(C) USC 1182(a)(2)(C)(i); INA 101(a) (2)(C)(i). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 20

35 b. Crime-Related Inadmissibility Grounds 26 Conviction of any offense relating to controlled substances; Conviction of a single crime involving moral turpitude (CIMT 27 ) or attempt or conspiracy to commit a CIMT unless the offense comes within an exception: - Petty offense exception applies if the noncitizen committed only one CIMT that carries a maximum possible sentence of a year or less and a sentence of six months or less was actually imposed; or - Youthful offender exception applies if the noncitizen committed only one CIMT while under the age of 18, and five years has passed since release from resulting confinement; Formal admission of controlled substance or CIMT (no conviction is required, but where the charge was resolved in criminal court as less than a conviction the ground does not apply); Person is a current drug abuser or addict (conviction not required); Government has reason to believe the person has ever been or assisted a drug trafficker (conviction not required); Person has engaged in prostitution or commercialized vice (conviction not required); Two or more convictions of any kind where an aggregate sentence of five years or more was imposed. 3. Comparing Grounds of Deportability and Inadmissibility The offenses that are grounds of deportability and inadmissibility are not identical. Certain convictions will make a noncitizen deportable but not inadmissible, or vice versa. As stated above, in general, a permanent resident defendant needs to avoid a conviction of a crime that is grounds for deportation, while an undocumented defendant should focus on avoiding a conviction that is a ground for inadmissibility. There is no inadmissibility ground relating to domestic violence or firearms. However, if a defendant s primary goal is to avoid deportability, he must avoid conviction even for minor offenses that come within these grounds, such as possession of an unregistered firearm, or a misdemeanor assault conviction where there was the requisite relationship to the victim. In contrast, if a defendant only needs to avoid inadmissibility, these convictions will not trigger those statutory grounds. Note, however, that if the firearms or domestic violence offense also is a crime involving moral turpitude e.g., if it is assault in the second degree under RCW 26 8 USC 1182(a)(2) and (a)(1); INA 212 a)(2) and (a)(1). 27 Please see Chapter 5: Crimes Involving Moral Turpitude, for more information. Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 21

36 9A the defendant also must analyze the offense according to the moral turpitude grounds. Example: Sam is offered a choice between pleading to possessing an unregistered firearm or to theft. If he must avoid becoming deportable, he has to refuse the firearm plea. If he only must avoid becoming inadmissible, he can safely accept the firearm plea. Second, there are different rules for when a single conviction for a crime of moral turpitude makes a noncitizen deportable or inadmissible. Check the person s entire criminal record to make sure there are no other convictions for CIMTs. You can use the formulae discussed in Chapter Five: Crimes Involving Moral Turpitude for more information. Third, key conduct-based grounds make a noncitizen inadmissible, but not deportable. These include engaging in prostitution, 28 and where the government has reason to believe, but not necessarily a conviction, that the person aided in drug trafficking. 29 Finally, an aggravated felony is not a per se ground of inadmissibility. In limited situations, and where the conviction also does not come within the controlled substance or perhaps moral turpitude grounds, this can aid a defendant who is eligible to immigrate through a relative. 4. Aggravated Felony a. Aggravated Felony Definition 30 Conviction of an aggravated felony is terrible for any noncitizen, regardless of status. Conviction of an aggravated felony after admission is a ground of deportability, but that is just the beginning. With a few exceptions, the conviction ensures removal and makes a noncitizen ineligible for most forms of relief from removal. In contrast, a person who is merely inadmissible or deportable, but not an aggravated felon still might be eligible for some discretionary waivers, applications or defenses that will let them remain lawfully in the U.S. The term aggravated felony is an immigration law specific term, and can include misdemeanors and even crimes not typically characterized as "aggravated." Aggravated felonies are defined at 8 USC 1101(a)(43), which lists dozens of common-law terms and references to federal statutes. Federal and state offenses can be aggravated felonies, as can foreign offenses unless the resulting imprisonment ended more than 15 years earlier. 28 Please see Chapter 8, Section E for more on immigration consequences of prostitution. 29 Please see Chapter 6: Drug Offenses for more details on immigration consequences of drug offenses USC 1101(a)(43); INA (a)(43). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 22

37 Where a federal criminal statute is cited in the aggravated felony definition, a state offense is an aggravated felony only if all of the elements of the state offense are included in the federal offense. 31 Where the aggravated felony is identified by a general or common law terms such as theft, burglary, sexual abuse of a minor courts will create a standard generic definition setting out the elements of the aggravated felony offense. To be considered an aggravated felony, a state offense must have the same elements as the generic definition. For more examples, see Chapter Ten: Burglary, Theft and Fraud. Overview Any aggravated felony offense triggers the most severe immigration consequences and should be avoided whenever possible. The aggravated felony definition applies to all noncitizens regardless of status and includes dozens of provisions that encompass hundreds of offenses. It will trigger virtually automatic removal for most all noncitizens who fall within its definition. The federal courts have determined that the aggravated felony definition includes misdemeanor offenses (e.g., third degree theft with sentence of 365 days). An aggravated felony conviction renders a noncitizen ineligible for most forms of relief from removal and most other immigration benefits (including citizenship). Any criminal conviction deemed to fall under one of the categories listed below will constitute an aggravated felony as defined under immigration law. 32 It states that the term aggravated felony means: (A) Murder, rape, or sexual abuse of a minor; (B) Illicit trafficking in a controlled substance (as defined in section 802 of Title 21), 33 including a drug trafficking crime 34 (as defined in section 924(c) of Title 18); (C) Illicit trafficking in firearms or destructive devices 35 (as defined in section 921 of Title 18) or in explosive materials 36 (as defined in section 841(c) of that title); 31 It is not necessary for the state offense to contain the federal jurisdictional element of the federal statute (crossing state lines, affecting inter-state commerce) to be a sufficient match. See, e.g., U.S. v. Castillo- Rivera, 244 F.3d 1020 (9 th Cir. 2001) (Calif. P.C (a)(1) is an aggravated felony as an analogue to 18 U.S.C 922(b)(1)) USC 1101(a)(43); INA (a)(43). 33 As defined in 802 of Title As defined in 924(c) of Title As defined in 921 of Title As defined in 841(c) of that title. Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 23

38 (D) An offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000; (E) An offense described in-- (i) Section 842(h) or (I) of Title 18, or section 844(d), (e), (f), (g), (h), or (I) of that title (relating to explosive materials offenses); (ii) Section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or (iii) Section 5861 of Title 26 (relating to firearms offenses); (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 [is] at least 1 year; (G) A theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least 1 year; (H) An offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom); (I) An offense described in section 2251, 2251A, or 2252 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 1 year imprisonment or more may be imposed; (K) An offense that-- (i) Relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) Is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) Is described in section 1581, 1582, 1583, 1584, 1585, or 1588 of Title 18 (relating to peonage, slavery, and involuntary servitude); (L) An offense described in-- (i) Section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18; (ii) Section 421 of Title 50 (relating to protecting the identity of undercover intelligence agents); Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 24

39 (iii) Section 601 of the National Security Act of 1947 (relating to protecting the identity of undercover agents); (M) An offense that-- (i) Involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) Is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; (N) An offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this Act; (O) An offense described in section 1325(a) or 1326 [illegal reentry after deportation] of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph; (P) An offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18, or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this Act; (Q) An offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; (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 for which the term of imprisonment is at least one year; (T) An offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; and (U) An attempt or conspiracy to commit an offense described in this paragraph. Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 25

40 The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Not withstanding any other provision of law (including any effective date), the term [aggravated felony] applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph [September 30, 1996]. 37 b. When Definition of Aggravated Felony Applies i. Aggravated Felony Conviction as Basis for Removal The impact of an aggravated felony conviction is different for people who are present in the U.S. legally and for those who are undocumented or entered without being inspected. For a lawfully admitted person, an aggravated felony conviction is grounds for deportation. 38 Thus, anyone who has been lawfully admitted will be placed in removal proceedings and charged with deportation if she is convicted of an offense that falls under the aggravated felony definition. This means that lawful permanent residents (greencard holders), refugees and asylees will face almost certain removal if convicted of an aggravated felony offense. The crime related inadmissibility grounds do not include the aggravated felony definition. Thus, undocumented persons who are fortunate enough to end up in removal proceedings before the immigration judge and have some basis for applying for lawful status (e.g., a family visa petition based upon marriage to a U.S. citizen) will not be directly rendered ineligible due to an aggravated felony conviction. However, the immigration statute provides for a special procedure called expedited removal of aggravated felons. 39 Any non-citizen who is not a lawful permanent resident and who has been convicted of an aggravated felony offense can be expeditiously removed. If the ICE officials exercise the option to subject a noncitizen to this procedure, he will not get a hearing before an immigration judge (ICE will issue a virtually unreviewable order of deportation) and he will be deemed ineligible for virtually all forms of relief from removal. Aggravated felons face additional penalties such as mandatory immigration detention, and limitations on the right to federal appeal, and even to ask for voluntary departure. ii. Aggravated Felony as Bar to Immigration Benefits In addition to making them removable or deportable, an aggravated felony 37 8 USC 1101(a)(43); INA 101(a)(43) (1996) (emphasis added) USC 1227(a)(2)(A)(iii); INA 237(a)(2) USC 1228(b); INA 238(b). Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 26

41 conviction renders noncitizens ineligible for almost all immigration benefits. These include: Asylum; The special waiver of deportation for longtime lawful permanent residents known as cancellation of removal ; 40 Citizenship; The special cancellation of removal provisions for undocumented people who have exceptional equities or who are survivors of domestic violence; 41 The self-petition process that allows certain survivors of DV to apply for their lawful permanent resident status (greencards); The 212(h) waiver for lawful permanent residents that would allow them to re-immigrate through family members by waiving inadmissibility of certain convictions. Example: Marco has been a permanent resident for 20 years and has six U.S. citizen children. He is convicted of an aggravated felony, possession for sale of marijuana. He will be deported. The aggravated felony conviction bars him from applying for the basic waiver cancellation of removal for long-time permanent residents who are merely deportable. 42 iii. Aggravated Felony and Federal Offense of Illegal Re-entry A noncitizen who is convicted of an aggravated felony, deported or removed, and then returns to the U.S. without permission can be sentenced to up to 20 years in federal prison under 8 USC 1326(b)(2). This applies even to persons whose aggravated felonies were relatively minor offenses, such as misdemeanor theft with a sentence of 365 days. In Washington, illegal re-entry cases represent more than 25% of federal public defenders caseloads. Criminal defense counsel must warn their clients of the severe penalty for re-entry. See above Section B: Step Two: Determine Defense Goals for you Noncitizen Client, for additional analysis of illegal reentry cases. 40 For more information, please see Part II, Section C of this manual Quick Guide to Cancellation of Removal for Legal Permanent Residents. 41 Id. 42 Id. Example: After his removal to Mexico, Marco illegally re-enters the U.S. to join his family and maintain his business. One night he is picked up for drunk driving and immigration authorities identify him in a routine check for persons with Hispanic last names in county jails. Marco is transferred to federal custody and eventually pleads to illegal re-entry and receives a three-year federal prison sentence. Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 27

42 CHAPTER TWO Convictions under Immigration Law A. Overview of "Conviction" under Immigration Law This chapter discusses the immigration consequences resulting from different convictions. For purposes of immigration law, the definition of "conviction" is not intuitive. It is complex and has a different meaning than its use in common parlance or in Washington law. There are two prongs to the immigration law definition of conviction. The Immigration and Naturalization Act (INA) states: The term conviction means, with respect to an alien, 43 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 [noncitizen] 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. 44 B. Misdemeanor vs. Felony It is mistaken belief among judges, prosecutors, and defenders (as well as noncitizens) that simple misdemeanor and gross misdemeanor offenses do not trigger deportation/removal. This could not be a more erroneous or dangerous assumption. Misdemeanor and gross misdemeanor offenses cannot only render noncitizen defendants deportable or removable, sometimes these convictions can also trigger more severe consequences than a felony conviction. For example, a conviction for Malicious Mischief 2 under RCW 9A , a Class C felony, is not a crime of moral turpitude under current interpretations of immigration law. 45 However, a conviction for Attempted Theft 3 under RCW 9A , a simple misdemeanor carrying a maximum penalty of 90 days, is a crime of moral turpitude that may render a noncitizen deportable/removable. 46 Additionally, many gross misdemeanor convictions are now considered to be aggravated felonies, and, as such, trigger the most severe consequences for a noncitizen defendant and should be avoided at all costs.47 In the Kafkaesque world of immigration law, it 43 For more information on noncitizen rights and risks, please see Chapter 1, Section A USC 1101(a)(48)(A); INA 101(a)(48)(B). 45 See Rodriguez-Herrera v. I S, 52 F.3d 238 (9 th Cir. 1995). See also Chapter 5 for more on Crimes Involving Moral Turpitude. 46 See U.S. v. Esparza-Ponce, 193 F.3d 1133 (9 th Cir. 1999). 47 See Chapter 1, Section C4, for more on aggravated felonies. Chapter 2: Convictions Under Immigration Law 28

43 may be better for a noncitizen to have a conviction for a Felony Theft 2 with a 30 day sentence rather than a conviction for Theft 3 with a 365 day sentence imposed: the former being at most a crime of moral turpitude; the latter being both a crime of moral turpitude and an aggravated felony. C. Inchoate Offenses Attempt, Conspiracy, and Solicitation A noncitizen defendant who pleads guilty to attempt or conspiracy to commit an underlying offense that will trigger deportation or removal will still be deportable as if he had committed the underlying predicate offense. In some cases, the crime-related deportation and removal provisions either contain specific language including attempt and conspiracy. In other instances, the case law interpreting those provisions has held that an attempt or conspiracy to commit a crime of moral turpitude such as theft, will be treated the same as the underlying theft offense. The aggravated felony definition at INA 101(a)(43)(U) explicitly states that any attempt or conspiracy to commit any offense listed in that definition will be considered an aggravated felony. See Chapter One, Section C4: The Aggravated Felony Definition. The offense of criminal solicitation under RCW 9A is no treated the same as attempt and conspiracy under immigration law. The Ninth Circuit has held that criminal solicitation under RCW 9A is not a controlled substance violation and is not a drug trafficking offense under the aggravated felony definition. 48 The court s reasoning in these cases can arguably be extended beyond drug offenses (e.g., criminal solicitation to commit theft is not a crime of moral turpitude). D. Deferred/Suspended Imposition of Sentence Under various provisions of Washington law, 49 subsequent to an offender s plea of guilty, a judge may impose a probationary period of up to two years for any misdemeanor offense (five years for a DUI), whether the sentenced was suspended or deferred. 50 Upon successful completion of probation, the defendant can apply to withdraw the guilty plea and the conviction is deemed vacated for most purposes. 51 For immigration purposes, however, the offense at issue in a deferred sentence case will constitute a conviction because there has been a finding of guilt and the conditions imposed by the court constitute a form of punishment, penalty or restraint on the [noncitizen s] liberty. 52 Even where the defendant has complied with the conditions imposed under the deferred sentencing scheme and has succeeded in withdrawing the plea and dismissing the case, it remains a conviction in perpetuity for immigration purposes. The Board of Immigration Appeals and the Ninth Circuit have held that an admission of guilt, coupled 48 See Coronado-Durazo v. I S, 123 F.3d 1322 (9 th Cir. 1997); Leyva-Licea v. I S, 187 F.3d 1147 (9 th Cir. 1999); U.S. v. Vargas-Gomez, 2000 U.S. App. LEXIS 539 (9 th Cir. 2000). 49 RCW , , , RCW (1). 51 RCW This procedure also applies to felony pleas entered prior to July 1, Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998). Chapter 2: Convictions Under Immigration Law 29

44 with the requisite sanctions, will render the conviction permanent for immigration purposes under 8 USC 1101(a)(48)(A), regardless of whether the admission of guilt is A defendant s plea of guilty will remain a conviction in perpetuity, so a guilty plea pursuant to a deferred sentence agreement will not be eliminated for immigration purposes. This is true even if regardless of whether she has subsequently been permitted to withdraw the plea pursuant to successful completion of the conditions imposed (unless the offense involves first time simple possession of drugs or lesser drug offense). E. Washington State Deferred Prosecutions subsequently withdrawn in a state rehabilitative procedure. 53 Exception: There is one exception to this rule. First time convictions for simple possession of drugs and lesser drug offenses such as possession of drug paraphernalia will not be considered permanent conviction if they are vacated pursuant to a suspended or deferred sentence. See Chapter Six: Drug Offenses for more on this exception. RCW allows for "deferred prosecution" in certain misdemeanor cases. Deferred prosecution under this provision is available to defendants whose wrongful conduct was caused by alcoholism, drug addiction, or mental problems. 54 Case law pertaining to immigration consequences has interpreted deferred prosecutions in Washington state to be the equivalent of a conviction. The Ninth Circuit considers the difference between a deferred prosecution agreement and a guilty plea to be a formality, and it held the deferred prosecution requirements for treatment to be sufficient to meet the punishment prong of the immigration definition of conviction. 55 However, the Board of Immigration Appeals, the Ninth Circuit and the U.S. Supreme Court have all held that DUI convictions, such as those under RCW , do not trigger statutory grounds for deportation or inadmissibility. 56 Thus, even though the deferred prosecution will constitute a conviction under immigration law, as long as the record does not reflect a conviction for being under the influence of a controlled substance, there is neither a statutory basis for removal nor a statutory bar to obtaining immigration benefits Matter of Roldan, 22 I. & N. Dec. 547 (BIA 1999); Murillo-Espinoza v. I S, 261 F.3d 728 (9 th Cir. 2001), partially upholding Matter of Roldan. 54 RCW (1). 55 Matter of Punu, supra n. 52; see also U.S. v. Sylve, 135 F.3d 680 (9 th Cir. 1998); Abad v. Cozza, 128 Wash. 2d 575 (1996). 56 See Matter of Torres Varela, 23 I. & N. Dec. 78 (B.I.A, 2001)(simple DUI not a crime of moral turpitude); United States v. Trinidad-Aquino, 259 F.3d 1140 (9 th Cir. 2001)(DUI not a crime of violence and thus not an aggravated felony under INA 101(a)(43)(F)); see also Montiel-Barraza v. I S, 275 F.3d 1178 (9th Cir. 2002); U.S. v. Portillo-Menodoza, 273 F.3d 1224, 1228 (9th Cir. 2001)(with priors); Leocal v. Ashcroft, 125 S.Ct. 377 (2004). 57 It is important to remember that such deferred prosecution agreements will still be considered a negative discretionary factor against the noncitizen in any application with DHS for immigration benefits. Chapter 2: Convictions Under Immigration Law 30

45 F. Pre-Plea Deferred Adjudications Municipal and District Courts and prosecutors throughout Washington State make use of a wide variety of non-statutory pre-plea deferred adjudication schemes and procedures (i.e., Stipulated Orders of Continuance, Alternative Dispositions, Continuation For Dismissal). Additionally, the increasing prevalence of specialty courts such as Domestic Violence Court, Mental Health Court, and Drug Courts, often employ various deferred adjudications that do not require a formal plea of guilty. The specifics of each scheme vary somewhat, although all are designed to result in a dismissal of the charges if the defendant complies with certain conditions. 58 Virtually all of the courts that permit some type of deferred adjudication process have boilerplate forms that are used to embody the agreements or stipulations. For immigration purposes, the portion of these agreements that matters is where the defendant agrees to the admissibility of the police report into evidence with the understanding that if he violates For immigration purposes it is important to read deferred adjudication agreements carefully and not agree to boilerplate language in court forms if it is harmful to a noncitizen client's immigration interests. Criminal defense counsel must always try to negotiate these agreements with immigration safe language substituted for these provisions. (See Appendix A for sample immigration-safe language.) the agreement the judge will rely (oftentimes solely) on the police report in determining the defendant s guilt or innocence. Some agreements go further and require the defendant to actually stipulate to the accuracy of the facts contained in the police report. These admissions run the risk of falling within the immigration statute s definition of conviction, which requires a mere admission of "facts sufficient to warrant a finding of guilt. 59 Traditionally, a disposition under a pre-plea deferral agreement or diversion statute has not been a conviction for immigration purposes. 60 However, in 1996 Congress enacted changes to the definition of conviction, and the legislative history makes it clear that Congress intended to include "formal admissions" of guilt in the definition of conviction. As a result, a formal admission of facts sufficient to warrant a finding of guilt may now result in deportation/removal. 61 But since this definition change there have been no BIA or Ninth Circuit Court decisions about how pre-plea deferred adjudications should be construed in the context of conviction. There is a strong argument that Washington's pre-plea deferred adjudications are not formal admissions. Most deferred adjudication schemes used by Washington Municipal 58 These agreements are used in relation to a variety of offenses that can trigger deportation/removal, such as domestic violence assault and theft USC 1101(a)(48)(A)(i); INA (a)(48)(a)(i). 60 Matter of Grullon, 20 I&N Dec.12 (BIA 1989). 61 H.R. Conf. Rep. No (1996), reprinted in 142 Cong. Rec. H10899 (daily ed. Sept. 24, 1996). Chapter 2: Convictions Under Immigration Law 31

46 and District Courts do not require the defendant to plead guilty or formally admit guilt. Moreover, where the defendant has merely agreed to the admissibility of evidence into the record such as the police report there has been no actual admission of guilt and there has been no determination as to the sufficiency of the evidence. There is a strong Deferred adjudication agreements that have immigration safe language cannot constitute convictions under the immigration law definition. However, deferred adjudication agreements that have language that, similar to the statutory deferred prosecution provisions, requires an admission of police reports into evidence and/or a stipulation to the sufficiency of the facts will be treated as a conviction under the immigration law by the immigration authorities. argument in such cases that there is no conviction under 8 USC 1101(a)(43)(A) since there has been no admission of guilt or stipulation to facts sufficient and neither the Immigration Court nor the DHS examiners and officers are permitted to render determinations as to the sufficiency of evidence in a criminal proceeding. This is, of course, a much harder argument to make where the deferral agreement signed by the defendant includes not only the admissibility of the police report into evidence, but also a stipulation as to the sufficiency of the facts contained therein. 62 Defense attorneys should use immigration safe language in these deferred adjudication agreements whenever possible. WDA s Immigration Project has developed immigration safe language that has been successfully incorporated into many deferred adjudication agreements for noncitizens throughout the state. Examples of this safe language are available in Appendix B. G. Drug Cases Eliminating Conviction for Simple Possession or Less 63 If your client is a noncitizen defendant charged with a simple possession, or lesser drug offense, it is imperative to consult the analysis and strategies under Chapter Six: Drug Offenses. H. Drug Addiction and Drug Abuse 64 Even if the deferred adjudication schemes discussed herein do not constitute convictions under 8 USC 1101(a)(48)(A), deferred prosecutions under RCW 10.05, drug court, and any other deferral scheme wherein a noncitizen defendant admits to drug abuse or drug addiction, or agrees to undergo treatment for drug abuse/addiction, can still be 62 Note that some deferral agreements may require the defendant to stipulate that the facts in the police report are true. However, such a stipulation does not constitute a determination as to their sufficiency to support a finding of guilty. However, these admissions and stipulations are very risky for noncitizen defendants and should be avoided. 63 Under Lujan-Armendariz v. I S, 222 F.3d 728 (9 th Cir. 2000), there is an exception for a single, remedially dismissed simple drug possession, based on the Federal First Offender Act (FFOA). See 18 USC Alcohol abuse/addiction does not constitute drug abuse or addiction for immigration purposes. Chapter 2: Convictions Under Immigration Law 32

47 problematic. Drug abuse and drug addiction are both a ground of inadmissibility under 8 USC 1182(a)(1) and a ground of deportability under 8 USC 1227(a)(2)(B)(ii). These provisions do not require a conviction to be applied against a noncitizen. This means that admissions of drug abuse and/or addiction in conjunction with these deferral schemes may be a sufficient basis to subject a noncitizen defendant to deportation/removal and/or make him/her ineligible to (re)enter the U.S., obtain lawful permanent residency (a greencard), or certain other benefits under immigration law. The INS and Immigration Courts use a very broad test in determining drug addiction and drug abuse. See below in Section N: Immigration Consequences of Bad Acts, and Chapter 6: Drug Offenses for more information. I. Restraint on Noncitizen s Liberty The second prong of the definition of what constitutes a conviction for immigration purposes under INA 101(a)(48)(ii) requires that the judge has ordered some form of punishment, penalty, or restraint on the alien s liberty to be imposed. Imposed jail time, probation, and payment of fines can constitute a conviction under the second prong definition. Moreover, the conditions imposed with virtually all deferred adjudication schemes (even immigration-safe ones) will suffice to constitute a restraint on the noncitizen s liberty within the meaning of this provision. J. Juvenile Dispositions It is a long-standing rule of immigration law that juvenile dispositions do not constitute convictions for immigration purposes. 65 After the 1996 amendments to the INA, the BIA issued a decision where it revisited this issue in light of the new statutory definition of a conviction at INA 101(a)(48(A), the Board of Immigration Appeals reaffirmed this rule. 66 Thus, a juvenile disposition pursuant to RCW will not trigger deportation/removal under the criminal provisions of immigration law. Keep in mind, however, that not all of the criminal provisions under immigration law require convictions, and a juvenile disposition will be sufficient to trigger deportation/removal under the criminal provisions that do not require convictions. For example, a juvenile disposition for the offense of delivery of a controlled substance will likely fall under INA s reason to believe the noncitizen is a drug trafficker provision. 67 Additionally, a finding by a juvenile court that the youth has violated a restraining, protective, or no contact order will can trigger deportation under INA s violation of a family protective order ground. 68 It is important to remember that, while not a basis for deportation/removal, juvenile dispositions can and will be considered by the DHS and the Immigration Court in making 65 Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981). 66 Matter of Devison, 22 I. & N. Dec (BIA 2000) USC 1182(a)(2)(C); INA 212(a)(2)(C) USC 1227(a)(2)(E)(ii): INA 237(a)(2)(E)(ii). Chapter 2: Convictions Under Immigration Law 33

48 discretionary determinations such as applications for permanent residency, requests for relief from deportation/removal, and applications for U.S. citizenship. K. Convictions on Direct Appeal The Supreme Court held in Pino v. Landon, 69 that generally a conviction must attain some degree of finality under state or federal court procedure before it can be used as a basis for deportation/removal. Thus, a conviction on direct appeal will not be considered sufficiently final for purposes of deportation/removal of the noncitizen defendant. Although some government attorneys have argued that an appealed conviction will support deportation under the new definition, no relevant precedent supports this argument. 70 In practice, convictions clearly on direct appeal of right still are being held not to constitute a conviction for immigration purposes. Thus, where appropriate, counsel should file late appeals to criminal convictions. While pending, the convictions on such appeals cannot serve as a basis for deportation or removal. L. Expungements/Vacations under Immigration Law Under RCW 9.94A.640 (felony expungement) and RCW (misdemeanor expungement), a person who has pled guilty to certain felony or misdemeanor offenses can withdraw the guilty plea, as long as probation was imposed and probation was either successfully completed or the judge as a matter of discretion permitted the expungement. This procedure is referred to as a vacation of the conviction and result in a person s record being cleared with the Washington State Patrol and other databases. 71 Rehabilitative relief such as expungements/vacations will not eliminate a conviction for immigration purposes, 72 except under the Lujan-Armendariz rule: expungement will eliminate a first conviction for (a) simple possession, (b) a less serious drug offense that does not have a federal analogue, such as possession of paraphernalia, or (c) giving away a small amount of marijuana. See below, Chapter Six: Drug Offenses. 69 Pino v. Landon, 349 U.S. 901 (1955). 70 However, the Fifth Circuit has held that the statutory definition of conviction erodes the requirement of finality, in a complex procedural situation. This reasoning, however, violates a number of well-established rules of statutory construction. Moosa v. I S, 171 F.3d 994 (5th Cir. 1999)(ruling on Texas deferred adjudication statute that held limited appeal rights). See also Matter of Punu, supra n Note that pursuant to State v. oel, 101 Wn. App. 623 (2000), Title 3 courts of limited jurisdiction do not have the power to vacate convictions through the deferred sentencing scheme procedures. The opinion goes on to say that it is a vacation that clears the persons WSP record. This case was issued prior to the 1991 amendments by the Washington Legislature establishing a misdemeanor expungement/vacation process under RCW Presumably, in order to have the record cleared, in addition to a successfully completed deferral a person will need to avail themselves of RCW See Murillo-Espinoza v. I S, supra n. 53, partially upholding Matter of Roldan, supra n. 53. Until the BIA ruled in 1999, that the 1996 enactment of the statutory definition of a conviction made statutes such as RCW 9.94A.640 and RCW ineffective, Washington expungements were for nearly forty years held to eliminate, variously, conviction for crimes involving moral turpitude, firearms convictions, and first offense drug possession offenses. See, e.g., Matter of G-, 9 I. & N. 159 (BIA 1960, AG 1961); Matter of Luviano, 21 I. & N. Dec. 235 (BIA 1996). Chapter 2: Convictions Under Immigration Law 34

49 Thus, for example, withdrawal of plea under RCW 9.94A.640 of a felony heroin possession conviction will eliminate the conviction for immigration purposes as long as that was the first drug conviction of the person s life. 73 M. Pardons under Immigration Law Under 8 USC 1227(a)(2)(A), the immigration statute provides that a full and unconditional pardon by the President of the United States or the Governor of the State will be effective in erasing the deportation consequences of the conviction for a noncitizen who was convicted of: A single crime involving moral turpitude committed within five years of entry. INA 8 USC 1227(a)(2)(i), (v); Two or more crimes involving moral turpitude (and one or no CIMT s exist after pardon). INA 8 USC 1227(a)(2)(ii), (v); An aggravated felony. INA 8 USC 1227(a)(2)(iii), (v); or High-speed flight from an immigration checkpoint under 18 U.S.C INA 8 USC 1227(a)(2)(iv), (v). 74 A pardon will not eliminate deportability based on other grounds; for example, the domestic violence ground, even if the conviction also is a crime involving moral turpitude or aggravated felony. 75 The corresponding grounds of inadmissibility at 8 USC 1182(a)(2) do not contain any provisions authorizing a pardon to eliminate these grounds, although there are arguments in favor of extending the reach of a pardon to certain of these provisions. There is no legal precedent on this issue. Additionally, a pardon will not erase the deportation consequences of a conviction if: The pardon was not full (i.e., restoring only some civil rights, like voting). 76 The pardon was predicated upon fulfillment of any conditions (i.e., good behavior). 77 The pardon was from anyone other than the U.S. President or a Governor of one of the United States. 78 Washington State judges do not have the power to grant a pardon of a crime to alleviate the immigration consequences on the defendant 79 The Ninth Circuit has likewise held that judicial pardons have no effect in erasing convictions for immigration purposes The person still must admit the arrest to immigration authorities and it can be used as a negative factor in a discretionary decision, unless the person was under the age of 21 when the offense was committed. See Paredes-Urrestarazu v. I S, 36 F.3d 801, (9th Cir. 1994) USC 1227(a)(2)(A)(v); INA 237(a)(2)(A)(v). 75 Matter of Suh, 23 I. & N. Dec. 626 (BIA 2003). 76 Lehmann v. U. S. ex rel. Carson, 353 U.S. 685, rehearing denied, 354 U.S. 944 (1957). 77 Id. 78 Weedin v. Hempel, 28 F.2d 603 (9th Cir. 1928). 79 State v. Aguirre, 73 Wn. 682, 688, 870 P.2d 1011 (1994). 80 Widersperg v. I S, 896 F.2d 1179 (9 th Cir. 1990). Chapter 2: Convictions Under Immigration Law 35

50 Although very difficult to obtain, a pardon from the Governor can eliminate deportability for certain grounds. Even where it cannot limit deportation on all grounds, if a pardon can eliminate deportability under the aggravated felony provision, the noncitizen may then become eligible for certain forms of relief from deportation. These might include cancellation of removal for longtime permanent residents under 8 USC 1229b(a) or asylum which an aggravated felony conviction would normally bar. 81 N. Immigration Consequences of Bad Acts Some grounds of deportability and inadmissibility for crimes do not require a conviction and merely a bad act is sufficient ground for removal. As a result, a juvenile delinquency disposition, pre-plea arrangement or vacated conviction still may have adverse immigration consequences. These conduct-based grounds of deportability and inadmissibility include situations in which the person: Is someone the government has reason to believe is or was a drug trafficker; Is or has been a drug addict or abuser; Has engaged in the business of prostitution; Has committed certain crimes that involve immigration status such as alien smuggling, false documents, or making a false claim to U.S. citizenship; or Has been found by a court to violate a protection orders relating to domestic violence. Reason to Believe Drug Trafficking. A person is inadmissible if government has reason to believe that she is or has been a drug trafficker. 82 While there is no case directly on point, it is likely that the government will assert reason to believe based on a juvenile delinquency disposition of trafficking. While legally a juvenile is not capable of committing a crime, 83 the government will argue that the drug trafficking in the statute refers to activity and not crime ; immigration counsel must argue against that. Thus, pleading guilty to sale or possession for sale offenses in juvenile court causes far greater risk to an immigrant youth than pleading guilty to simple possession, which in most cases has no effect. Facts underlying an adult drug sale conviction that is vacated for cause still may serve as reason to believe trafficking. In addition, the statute was recently amended to provide that not just the trafficker, but the spouse and children of the trafficker are inadmissible if within the last five years they benefited from the trafficking. A noncitizen found inadmissible for drug trafficking may never be able to obtain any immigration status. The only waivers for this inadmissibility ground are for: long-time permanent resident waiver of cancellation of removal; extremely strong political asylum 81 There is a 1995 opinion from the Office of Legal Counsel that the effect of a Presidential Pardon extends to those grounds not explicitly covered by the INA, since Congress cannot limit this Constitutional power of the Executive. For more information, please see Part II, Section C of this manual Quick Guide to Cancellation of Removal for Legal Permanent Residents USC 1182(a)(2)(C); INA 212(a)(2)(C). There is no analogous deportation ground. 83 See Matter of Devison, 22 I. & N.1362 (BIA 2000). Chapter 2: Convictions Under Immigration Law 36

51 cases (withholding of removal); and the S, T, and U visas for victims of crime or alien trafficking and informants. Drug Addict or Abuser. A noncitizen found to be a drug addict or abuser can be found inadmissible if the addiction or abuse is current, or deportable if the addiction or abuse has occurred anytime after admission. 84 Repeated drug possession findings or a finding in drug court or other contexts that the person is an addict or abuser, can trigger this ground. Prostitution. A noncitizen who engages in prostitution is inadmissible. 85 This includes prostitutes and procurers (pimps) but not customers (although customers possibly may be held to have committed a crime involving moral turpitude). No conviction is required, but even with a conviction a single incident might not support a finding. A waiver of this ground of inadmissibility is available. Please see Chapter Eight, Section E: Prostitution as Ground of Deportation for more on prostitution. Alien Smuggling, Fraud, False Claim to Citizenship. A noncitizen who has aided, assisted or encouraged noncitizens to cross the border illegally is deportable and inadmissible, as is a noncitizen who after September 30, 1996 has made a false claim to U.S. citizenship to any government office to obtain a benefit. A person who has used or sold false immigration documents or filled out an immigration form with false information is inadmissible and deportable for document fraud if the person becomes the subject of a final order at a special administrative hearing. There are some waivers for alien smuggling and document fraud. Civil or Criminal Court Finding of Violation of a Domestic Violence Protective Order. A noncitizen who is found by a civil or criminal judge to have violated certain portions of a domestic violence protective order is deportable. The action violating the court order must have occurred on or after September 30, 1996, and after admission to the United States. No conviction is required USC 1182(a)(1)(A)(iv), 1227(a)(2)(B)(ii); INA 212(a)(1)(A)(iv), 237(a)(2)(B)(ii) USC 1182(a)(D); INA 212(a)(D). Engaging in prostitution formerly was also a basis for deportation, but this was eliminated under the Immigration Act of USC 1227(a)(2)(E)(ii); INA 237(a)(2)(E)(ii). Chapter 2: Convictions Under Immigration Law 37

52 CHAPTER THREE Sentencing Strategies A noncitizen defendant s sentence can often be the most critical aspect in determining the immigration consequences may result from a conviction. How a defender crafts or negotiates a sentence can make the difference between whether a conviction will trigger deportation or not. Thus, understanding the parameters of how Washington State sentences will be treated under the immigration laws is imperative. A. Definition of Sentence under Immigration Law The Immigration and Naturalization Act defines a sentence as: 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. 87 This statutory definition was provided by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and applies to sentences entered before, on, or after the date of enactment of IIRIRA. 88 This language refers to the sentence actually imposed, not to a potential sentence. It governs almost all provisions of the immigration statute that deal with sentences. There are several important exceptions, the most relevant being the deportability and inadmissibility provisions dealing with crimes involving moral turpitude; It does not include the period of probation or parole; It includes the entire sentence imposed even if all or part of the execution of the sentence has been suspended. Where imposition of suspension is suspended, it includes any period of jail time ordered by a judge as a condition of probation; Time imposed by recidivist sentence enhancements (e.g., Felony Harassment under RCW 9A (2)(b)(i) for previously [having] been convicted in this or any other state of any crime of harassment ) is not counted as part of the sentence imposed; USC 1101(a)(48)(B); INA 101(a)(48)(B). 88 IIRIRA Pub.L , 110 Stat. 3009, Div. C, 322(c), 304(a)(3) (Sept. 30, 1996). 89 United States v. Corona-Sanchez, 291 F.3d 1201 (9 th Cir. 2002)(en banc). Chapter 3: Sentencing Strategies 38

53 The time served after a probation or parole violation is included within the sentence imposed. 90 Example: The judge suspends imposition of sentence (a.k.a. deferred sentence), orders two years probation, and requires jail time of six months as a condition of probation. The defendant is released from jail after three months with time off for good behavior. For immigration purposes the sentence imposed was six months. However, if this defendant then violates probation and an additional 6 months is added to the sentence, she will have a total sentence imposed of 12 months. If this offense would become an aggravated felony by having a one-year sentence imposed, the defendant would do better to take a new conviction instead of the probation violation and have the time imposed for that. Example: The judge imposes a sentence of 365 days but suspends execution of 363 days and gives credit for two days served (a.k.a. suspended sentence). For immigration purposes the sentence imposed was 365 days (1 year). To ensure that the offense does not trigger any of the aggravated felony provisions involving sentences of one year or more, defense counsel should always request a sentence of 364 days or less, regardless of time suspended. B. Offenses that Are Aggravated Felonies Due to One Year Sentence As discussed in Chapter One, Section C4, a conviction for aggravated felony has dire results for any immigrant. Some convictions are considered aggravated felonies only if the sentence imposed includes a year or more of imprisonment and a sentence of 364 days or less will prevent them from being categorized as aggravated felonies. 91 In the case of these crimes, defense counsel has great opportunity to argue for a sentence to protect a client's immigration rights by pushing for a sentence of less than 365 days. The following offenses are aggravated felonies only if a sentence to imprisonment of one year is imposed: Crime of violence, defined under 18 USC 16 (see Chapter Nine: Avoiding Convictions That Are Crimes of Violence); Theft (including receipt of stolen property); Burglary; Bribery of a witness; Commercial bribery; Counterfeiting; Forgery; 90 See, e.g., United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) (a defendant sentenced to 365 days probation who then violated the terms of his probation and was sentenced to two years imprisonment had been sentenced to more than one year for purposes of the definition of an aggravated felony). 91 See INA 101(a)(43); 8 USC 1101(a)(43): (F), (G), (P), (R), and (S). Chapter 3: Sentencing Strategies 39

54 Trafficking in vehicles which have had their VIN numbers altered; Obstruction of justice; Perjury, subornation of perjury; Falsifying documents or trafficking in false documents (with an exception for a first offense for which the alien affirmatively shows that the offense was committed for the purpose of assisting, abetting, or aiding only the alien s spouse, child or parent). Note: Many other offenses are aggravated felonies regardless of sentence imposed, such as offenses relating to drug trafficking, firearms, sexual abuse of a minor, or rape. Practice Tip How to get to 364 days or less: Creative Plea-Bargaining If the offense is the type that will be made an aggravated felony by sentence the key is to avoid any one count from being punished by a one-year sentence. If needed, counsel can offer for his client to spend more time in jail in exchange for the shorter over-all sentence imposed in negotiations. Other options include Bargain for 364 days on a single conviction; Plead to two or more counts, with less than a one year sentence imposed for each, to be served consecutively; Plead to an additional or substitute offense that does not become an aggravated felony due to sentence, and take the jail time on that; Waive credit for time already served or prospective good time credits and persuade the judge to take this into consideration in imposing a shorter official sentence, that will result in the same amount of time actually incarcerated as under the originally proposed sentence; Rather than take a probation violation that adds time to the sentence for the original conviction, ask for a new conviction and take the time on the new count; or Vacating a sentence nunc pro tunc and imposing a revised sentence of less than 365 days will prevent the conviction from being considered an aggravated felony. (Matter of Song, 23 I. & N. Dec. 173 (BIA 2001).) Misdemeanor as Aggravated Felony. It is extremely important to remember that the definition of aggravated felony can include misdemeanors. The Ninth Circuit held that a conviction for a Nevada misdemeanor battery offense in which a sentence of one year was imposed and suspended, was a conviction of an aggravated felony. 92 The 92 United States v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir. 2003). Chapter 3: Sentencing Strategies 40

55 state s classification of the offense as a misdemeanor, and the fact that the offense was not punishable by more than a year (the traditional definition of felony) did not prevent the court from making this determination. C. Immigration Provisions Involving Sentence Length 1. Crimes Involving Moral Turpitude (CIMT) as Grounds for Inadmissibility: The Petty Offense Exception Inadmissibility Ground As will be discussed in Chapter Five, a conviction for a CIMT can be grounds for inadmissibility. For example, someone seeking LPR status, or who needs to show good moral character for a citizenship application, faces a bar to those immigration benefits if she has convictions for a CIMT. There is an exception to this rule, however for a crime shown to be a "petty offense." To qualify for the petty offense exception, a noncitizen must show three things. First, he must show that the sentence imposed was not "in excess of six months." Keep in mind that "sentence imposed" includes suspended time. Second, the noncitizen must show that she has committed only one offense involving moral turpitude. Finally, the offense must have a maximum possible penalty of not more than one year. Example: Based upon his marriage to a US citizen spouse, John, a Canadian citizen, is applying for lawful permanent residence (a greencard) in the United States. In order to qualify for a greencard, John must prove that he does not trigger any statutory bars to admission under 8 USC However, John has a conviction for misdemeanor theft under RCW 9A , which is a crime of moral turpitude and, thus, a bar to admission under 8 USC 1181(a)(2)(A)(i)(I). Because John has only one conviction for a crime of moral turpitude, and the maximum possible sentence is not more than one year, John would fall within the petty offense exception of the statute if the actual sentence imposed in his case (regardless of time suspended) was less than 6 months. 2. Crimes Involving Moral Turpitude (CIMT) as Grounds for Deportation A single conviction for a CIMT can be grounds for deportation if the offense was committed within five years of admission and the offense has a maximum possible sentence of one year or more (regardless of whether any sentence is ever actually imposed). 93 Example: Evoria became a lawful permanent resident in In 2005 she is charged with theft in the third degree, which carries a maximum possible sentence of 365 days. If she pleads guilty to this offense she will be deportable under this CIMT ground. However, if she pleads guilty to attempted theft in the 93 8 USC 1227(a)(2)(A)(i); INA 237(a)(2)(A)(i). Chapter 3: Sentencing Strategies 41

56 third degree she will avoid deportation under this provision since the maximum possible sentence is only 90 days. 3. Failure to Appear Offenses Conviction for failure to appear (FTA) to serve a sentence of five years or more is an aggravated felony, as is conviction for failure to appear before court pursuant to court order to answer to or dispose of a charge of a felony for which a sentence of two years imprisonment or more may be imposed. 94 Thus, failure to appear offenses such as bail jumping under RCW 9A will constitute an aggravated felony where the underlying charge is a Class C offense or greater (or any other offense carrying a maximum possible sentence of two years or more). 4. Racketeer Influenced Corrupted Organization (RICO) Offenses An aggravated felony includes an offense described in section 1962 of Title 18 (relating to RICOs), 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 95 Note that there is no requirement that any particular sentence is actually imposed. D. Suspended Sentences and Probation In Chapter Two, we discussed criminal dispositions in terms of whether they include a "finding of guilt" and imposition of punishment, and thereby constitute convictions under immigration law. Next we will look at the immigration consequences that can arise from the length of a sentence. For immigration purposes, a sentence 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. 96 Common sentence dispositions under Washington law have the following immigration effect under this definition. Deferred Sentence: Imposition of sentence suspended, custody (jail time) ordered as a condition of probation. The sentence is the amount of custody time ordered, regardless of the fact that technically no sentence was imposed. Suspended Sentence: Sentence imposed, all or part of the execution of sentence suspended. The entire sentence imposed is the sentence for immigration purposes, regardless of the fact that the defendant will not serve all or part of the sentence USC 1101(a)(43)(Q), (T); INA 101(a)(43)(Q), (T) USC 1101(a)(43)(J); INA 101(a)(43)(J) USC 1101(a)(48)(B); INA 101(a)(48)(B). Chapter 3: Sentencing Strategies 42

57 Probation. Probation alone is never a sentence to confinement, although as stated above if the judge orders the noncitizen to spend time in jail as a condition of probation, the time ordered is a sentence. One strategy to avoid the time imposed after a probation or parole violation from being included within the definition of sentence imposed is to plead to a new offense based on the violation, rather than taking a probation violation on the original offense. Of course, it is important to weigh any immigration consequences that would be triggered by the conviction to the new offense. Example: Clark is convicted of gross misdemeanor theft. Imposition of sentence is suspended (a.k.a. a deferred sentence ), he is placed on two years probation and ordered to spend 20 days in jail as a condition of probation. He has a sentence imposed of 20 days for immigration purposes. Example: Karen is convicted of gross misdemeanor theft. She is sentenced to 365 days in jail, with the execution of 363 days suspended, and given two years probation (a.k.a. a suspended sentence ). For immigration purposes, the imposed sentence is deemed to be one year. As a result, Karen has been convicted of an aggravated felony theft offense. If her defender had succeeded in simply having the sentence be 364 days with 362 suspended, she would have avoided a conviction for an aggravated felony. Time Imposed for a Violation of Probation. The time imposed after a probation or parole violation is included within the definition of sentence imposed. For example, a defendant who initially receives a sentence of less than one year, but then violates his probation or parole and is sentenced to an additional term of imprisonment that, when added to the original term, brings the total sentence imposed to over one year, will be considered to have a one-year sentence imposed for purposes of determining aggravated felon status. 97 Probation and Eligibility for Good Moral Character and Naturalization. While probation is not a sentence imposed, it has some effect on noncitizen defendants. Naturalization to U.S. citizenship will not be granted to an applicant who is on probation or parole on the day of the naturalization interview. Probation or parole during any part of the time for which good moral character must be established can be viewed as a negative factor in a discretionary finding that the applicant lacks good moral character, although it cannot be the sole basis for that finding. 98 Suspended Imposition of Sentence i.e., Deferred Sentences. Suspended imposition of sentence (a.k.a. a deferred sentence) occurs when the court delays imposition of any sentence and imposes probation directly upon the defendant. No sentence to confinement is imposed; the sentencing scheme is, in 97 United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) C.F.R. 316(1)(c)(1). Chapter 3: Sentencing Strategies 43

58 effect, suspended until probation is completed or revoked. Like a suspended execution of sentence (a.k.a. a suspended sentence), a deferred sentence may be revoked if the defendant violates any probationary condition. But unlike a suspended execution of sentence, since no actual sentence has been imposed, the judge may impose any sentence up to the maximum possible sentence allowed by the statute of conviction if defendant violates the terms of the deferred sentence. 99 In the case of a deferred sentence, a court may impose a period of incarceration as a condition of probation and the court may, upon revocation of a deferred sentence, impose an incarcerative term greater than the time served as a condition of the probation. For example, a court may order a defendant to serve five days incarceration as condition of probation under a deferred sentence. If the defendant breaks a condition of probation the court has the discretion to impose the maximum possible sentence under the statute, minus the five days already served. The court would not be limited to imposing a sentence of five days. 100 In a suspended imposition of sentence (a.k.a. deferred sentence) since the court does not impose any actual period of incarceration, but rather suspends the imposition of the whole sentencing process, a suspended imposition of sentence does not trigger immigration consequences that are contingent upon a sentence. The period for which the imposition of sentence is suspended does not constitute a period of incarceration under 8 USC 1101(a)(48)(B). However, often times the court will impose a period of incarceration as a condition of probation in connection with a suspended imposition of sentence. Any period of confinement or jail time specified as a condition of probation will constitute a sentence imposed for immigration purposes under 8 USC 1101(a)(48)(B). Additionally, in virtually all cases, entry of a guilty plea under a deferred sentence procedure will constitute a conviction in perpetuity for immigration purposes, even if the defendant complies with the conditions of probation and is subsequently permitted to withdraw his or her guilty plea. See Chapter Two: Convictions Under Immigration Law. Suspended Execution of Sentence i.e., Suspended Sentence. Suspension execution of sentence occurs when the court has imposed a definite sentence, but the defendant is released on probation for all or part of the sentence. Like the suspended imposition of sentence, if the conditions of probation are not fulfilled, the court may revoke the probation and re-incarcerate the defendant to complete whatever part of the sentence has not yet been served. A judge revoking a suspended sentence may not impose a penalty greater than the penalty previously suspended, minus any incarcerative time already served.101 For immigration purposes, the sentence will be the total amount of time, regardless of any suspended time. 99 Bellevue v. Hard, 84 Wn. App. 453 (1997). 100 Id. 101 RCW , , ; State v. Mortrud, 89 Wn. 2d 720 (1978); State v. Monday, 85 Wn. 2d 906 (1975); Bellevue, supra n. 99. Chapter 3: Sentencing Strategies 44

59 E. Other Sentences and Dispositions 1. Concurrent Sentences RCW 9.94A.589, on consecutive or concurrent sentences, sets forth several rules regarding such sentences. For immigration purposes, when concurrent sentences are imposed, the total sentence is limited to the period of the greatest of the sentences actually imposed, i.e., concurrent sentences are not added together. 102 The BIA has held that the term of imprisonment for immigration purposes is equal to the length of the longest concurrently imposed sentence. 103 Concurrent sentences can be an effective way to resolve a criminal case and avoid an aggravated felony designation where the one-year sentence is an issue. For example, pleading a noncitizen defendant to two counts of assault in the second degree with a sentence of 9 months each to run consecutively will avoid either count being an aggravated felony. 2. Indeterminate Sentence Where a noncitizen was sentenced under an indeterminate sentencing scheme, as was formerly in effect in Washington and as may apply to offenses committed prior to July 1, 1984, the sentence for immigration purposes is the maximum possible sentence which the noncitizen could have served Sentence Enhancements The Ninth Circuit held that where a sentence enhancement is imposed for recidivist behavior, only the maximum possible sentence for the original un-enhanced offense will count in calculating whether a one-year sentence has actually been imposed, to create an aggravated felony. 105 This rule also has been applied to determine whether a drug offense is a felony for purposes of the aggravated felony drug trafficking ground. 106 Whether the maximum possible sentence for this analysis is that under the statutory standard range calculation or the statutory maximum is not clear. The Supreme Court s decision in Blakely v. Washington 107 strengthens the argument that it should be the standard range. (However, whether Blakely is even applicable to immigration proceedings has not yet been determined.) Washington State has numerous other types of sentence enhancement statutes such as drug- 102 Matter of Fernandez, 14 I. & N. Dec. 24 (BIA 1972). 103 Matter of Aldabesheh, 22 I. & N. Dec. 983 (BIA 1999). 104 Matter of D-, 21 I. & N. Dec. 827 (BIA 1994) (Indeterminate sentence is to be "determined" for immigration purposes according to the maximum time that actually could be served under that sentence); see also Matter of Ohnhauser, 10 I. & N. Dec. 501 (BIA 1964). 105 U.S. v. Corona-Sanchez, 291 F.3d 1201 (9 th Cir. 2002)(en banc). 106 U.S. v. Arellano-Torres, 303 F.3d 1173 (9 th Cir. 2002); U.S. v. Ballesteros-Ruiz, 319 F , 1103 (9th Cir. 2003); Corona-Sanchez, supra n. 89, 105, (implicitly overruling holdings in U.S. v. Garcia-Olmedo, 112 F.3d 399 (9 th Cir. 1997) and U.S. v. Zarate-Martinez, 133 F.3d 1194 (9 th Cir. 1998) that a second federal simple possession conviction is a felony for this purpose based on the federal recidivist sentence enhancement). 107 Blakely v. Washington, 124 S.Ct (2004). Chapter 3: Sentencing Strategies 45

60 related enhancements, 108 deadly weapon enhancements, 109 vehicular homicide enhancements 110 and sexual motivation enhancements. 111 While the Corona- Sanchez Court specifically addressed recidivist sentence enhancements, immigration counsel should use this as a starting point to argue that this rule applies to other types of sentence enhancements Community Custody The RCW 9.94A.030(9) provides community supervision as a sentencing alternative to eligible offenders facing incarceration. Generally, community supervision provides that an offender may be released to live in the community subject to crime related prohibitions and other sentence conditions. For purposes of the interstate compact for out-of-state supervision of parolees and probationers community supervision is the functional equivalent of probation and should be considered the same as probation by other states. Community supervision appears to be comprised of two sub-categories: community custody 113 and post-release supervision. 114 However, as a practical matter, in virtually all Washington criminal cases only community custody is imposed. Community custody is not an additional period of incarceration or confinement ordered by the court. Rather, in most cases it should be construed as a condition of sentence akin to probation. Thus, since probation is not a sentence for immigration purposes, community custody should not be a sentence either. 115 Community custody that is served in lieu of earned release time, as provided for under RCW 9.94A.728 will not change the amount of time imposed under the original sentence. 5. First Time Offender Waiver (FTOW) There is a statutory alternative to the standard sentence range for certain first-time offenders under RCW 9.94A The statute allows the courts to impose more lenient treatment and conditions once the offender has plead guilty. Any period of incarceration imposed pursuant to the FTOW will constitute a sentence for immigration purposes. FTOW sentences might conceivably be useful to avoid removal for simple possession offenses and lesser drug crimes. See Chapter Six: Drug Offenses for more details, and discussion, infra, at p RCW 9.94A RCW 9.94A.530(1); RCW 9.94A.533(3). 110 RCW (2). 111 RCW 9.94A But see discussion of United States v. Moreno-Hernandez, 2005 U.S. App. LEXIS 13316; infra n. 299, p. 105, limiting scope of Corona-Sanchez for some non-recidivist enhancements. 113 RCW 9.94A.030(5). 114 Post-release supervision is defined broadly as community placement that is not community custody. RCW 9.94A.030(33). 115 There is some risk that community custody imposed under RCW 9.94A.660 (DOSA) and RCW 9.94A.670 (SSOSA) could arguably constitute a suspended execution of sentence, in which case it would constitute a sentence for immigration purposes. Note that sentences are irrelevant for immigration purposes for cases involving drugs and offenses considered to be sexual abuse of a minor. 116 Washington Sentencing Guidelines Commission, Adult Sentencing Guidelines Manual 2003 at I-28. Chapter 3: Sentencing Strategies 46

61 6. Drug Offender Sentencing Alternative (DOSA) Certain offenders convicted of a Violation of the Uniformed Controlled Substances Act (VUCSA) are eligible for Drug Offender Senentencing Alternative or DOSA sentencing. 117 Offenders who are or become subject to a final order of deportation (removal) are ineligible for DOSA. 118 Thanks to a bill passed during the 2005 legislative session, DOSA now includes a prison-based alternative and a residential chemical dependency treatment-based alternative..119 Should the court elect to impose the DOSA prison-based alternative, it must impose a sentence of one-half of the midpoint of the offender s standard range, to be served in a prison facility. The court must impose the remainder of the midpoint of the standard range as a term of community custody with treatment. 120 The treatment-based alternative includes a term of community custody equal to onehalf of the midpoint of the standard sentence range or two years, whichever is greater, with requirements to enter into treatment including a period of residential treatment. 121 If the offender violates the terms of the DOSA under the prison-based alternative or becomes ineligible for the DOSA after the court has granted it, the offender will serve the portion of community custody as sentence to confinement. 122 Under either type of DOSA the offender can be returned to court for evaluation, and be sentenced to a term of confinement within the standard range of her current offense, as a sanction for violations. 123 If a non-citizen sentenced under the prisonbased alternative is found By the US Attorney General to be subject to a deportation order, she has a right to a hearing, and if she is found to be subject to a valid deportation order the offender may be terminated from the program and reclassified to serve the remainder of the original sentence. 124 Under this scheme, community custody is likely to be determined to be a suspended sentence for immigration purposes. However, most drug-related provisions under the immigration laws have no sentence requirements. And, as a practical matter, noncitizens given DOSAs who serve their time at DOC are not likely to get the 117 RCW 9.94A.660(1)(c),(e), and (f).(2005). DOSA was modified by the Legislature, effective RCW 9.94A.660(1)(d): [t]he offender has not been found by the United States attorney general to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence. If there is no detainer in place, then subject to a[n] order should be argued to refer only to noncitizens who have fully-adjudicated, final orders of removal. 119 RCW 9.94A.660(5) and (6) (2005). 120 RCW 9A.94A.660(5)(a) and (b) (2005) See also Washington Sentencing Guidelines Commission, Adult Sentencing Guidelines Manual 2003 at I RCW 9.94A.660(6)(a)(2005). 122 CW 9.94A.660(5)(b). Also: [i]f the department finds that the offender is subject to a valid deportation order, the department may administratively terminate the offender from the program and reclassify the offender to serve the remaining balance of the original sentence. RCW 9.94A.660(3)(b). 123 RCW 9.94A.660(8) (2005). 124 RCW 9.94A.660(9)(2005). Presumably under the residential treatment-based alternative an offender is not subject to this possibility, once he has been sentenced, since there is no parallel provision. The conditional phrasing may of such administrative termination implies that it is not mandatory. This seems to potentially conflict with 9.94A.660(d), which makes a person eligible for DOSA only if he does not become subject to a deportation order during the period of the sentence. Chapter 3: Sentencing Strategies 47

62 benefit of the DOSA, but rather will be issued orders of removal or deportation and required to serve the entirety of their sentence. 7. Special Sex Offender Sentencing Alternative (SSOSA) SSOSA is a special sentencing alternative that allows for community treatment of certain sex offenders. Unlike DOSA, SSOSA has no immigration related prohibitions to participation. If a court determines that an offender is eligible for SSOSA, 125 the court must impose a sentence within the standard sentence range, suspend execution of the sentence and order the defendant to spend up to six months in confinement. The offender will be placed on court-ordered supervised treatment for the remainder of the SSOSA. 126 In SSOSA cases, the sentence for immigration purposes will be the amount of time originally imposed by the court, regardless of any time suspended pursuant to the SSOSA. 8. Work Ethic Camp (WEC) WEC is an alternative to incarceration for certain non-drug, non-violent, non-sex offenders who have received a sentence between 12 months and 36 months. This alternative allows these offenders to serve their sentence in a WEC instead of prison. Noncitizens subject to an immigration detainer or final order of deportation/removal are ineligible for WEC. Participants who fail to complete the program are required to serve the remaining portion of their sentence in DOC custody. A referral by the sentencing court to a WEC does not alter the underlying sentence imposed by the court, which is what counts for immigration purposes. 9. Reduction or Commutation of a Sentence Where a court reduces a sentence under any legal procedure, or appropriate authorities commute the sentence, only the reduced sentence is the sentence imposed, even if the noncitizen has actually served a longer time period. 127 It is advisable that the record reflect that the sentence was reduced on some legal basis other than humanitarian purposes or immigration concerns. 128 However, the length of sentence imposed is not changed when a non-citizen wins early release for good behavior and does not serve the full term: the length of term imposed by sentencing authorities still constitutes the sentence imposed Juvenile Sentences Sentencing after adjudication in juvenile proceedings is not a sentence imposed as a result of a conviction and hence should have no immigration penalties. Noncitizens 125 SSOSA eligibility requirements and procedures are governed by RCW 9.94A Washington Sentencing Guidelines Commission, Adult Sentencing Guidelines Manual 2003 at I Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. Dec. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation by Board of Pardons and Paroles), quoted in Matter of Song, 23 I. & N. Dec. 173 (BIA 2001). 128 Established law treats a modified sentence as the actual sentence for immigration law purposes. Matter of Song, supra n. 127; Matter of Martin, supra n Burr v. Edgar, 292 F.2d 593 (9th Cir. 1961). Chapter 3: Sentencing Strategies 48

63 tried as adults and committed to the Department of Corrections are considered convicted and sentenced for immigration purposes. 11. Civil Commitments Civil commitment pursuant to RCW 71.05, 71.06, 71.34, 72.68, or following criminal proceedings adjudication is probably not a sentence to confinement or incarceration. RCW sets for procedures for civil commitments where the defendant is believed to be incompetent. The statutory scheme is intended to provide rehabilitative, non-punitive treatment to various types of offenders with mental health issues. The court orders the proceedings stayed and the defendant is turned over to the custody of the Department of Heath and Human Services. No sentence is imposed. This is the case even where the jury returns a special verdict of Not Guilty by Reason of Insanity Conditional Release for Deportation of Noncitizens RCW 9.94a.685 provides for the conditional release of a non-citizen offender to the INS for deportation in lieu of incarceration with the Washington Department of Corrections (DOC). Prior to the actual expiration of the offender's term of confinement with the DOC, he may be "released" and transferred into the custody of immigration authorities for the specific purpose of deportation/removal. This bill was introduced and passed by the legislature in 1993 at the request of the Department of Corrections. Certain offenders are ineligible for the conditional release. These include offenders "serving a sentence for a violent offense or sex offense, as defined in RCW 9.94A.030, or any other offense that is a crime against a person, and offenders who were already once released pursuant to this provision and then illegally re-entered the U.S. The offender's obligations to the Department of Corrections continue while on conditional release. Such an offender must still satisfy any legal financial obligations ordered at sentencing, including restitution. The release continues until the expiration of the statutory maximum sentence provided for the underlying conviction. The Department issues an arrest warrant that remains in effect until the end of the release. Any unserved portion of the term of confinement is tolled as of the release to immigration authorities, and if the offender is arrested while on release, this unserved portion of the term of confinement will be reinstated. 130 RCW and RCW Chapter 3: Sentencing Strategies 49

64 CHAPTER FOUR Carefully Crafting a Noncitizen s Plea: Understanding the Categorical Analysis, the Record of Conviction and Divisible Statutes Overview For purposes of determining deportation/removal, it is the elements of the offense of conviction (not what the person did) that are relevant. To determine the elements of conviction, the courts first look to the actual language of the statute. Under certain circumstances, the courts are permitted to look to the record of conviction (ROC) for the purpose of determining the elements of the offense that the defendant plead to or was found guilty of committing. The ROC includes the judgment, jury instructions, a signed guilty plea, the transcript of the plea proceedings, the sentence, and the transcript of the sentencing hearing. The ROC does not include police reports, affidavits of probable cause, presentence reports, or statements by the noncitizen defendant outside of the judgment and sentencing hearing. When an immigration authority or a judge in a federal prosecution reviews a prior conviction to determine whether it is a ground of inadmissibility, deportability, or falls within the aggravated felony definition, she will consult only a limited number of documents from the criminal proceedings to identify the elements of the offense of conviction. Thus, how defense counsel crafts the defendant s plea is of critical importance. In most instances, criminal defense counsel should keep the record of conviction opaque as to what beyond the minimum statutory language that defines the offense the non-citizen was convicted of. The test for removability under a conviction-based ground is: what was the offense of conviction? and not, what was the underlying conduct? In many cases, removability requires looking beyond the statute to the record of conviction, and if the record of conviction is opaque, the immigrant will not be found removable. This is one of the most important defense strategies for criminal and immigration defense counsel. In many situations, an informed use of this analysis will permit a noncitizen to plead to an offense that is acceptable to the prosecution but does not cause adverse immigration consequences. Chapter 4: Cafefully Crafting a Noncitizen s Plea 50

65 A. Overview: Categorical and Modified Categorical Analysis An immigration judge or other reviewing authority will use categorical analysis (including the modified categorical analysis) in examining a prior conviction. Among other things, the categorical analysis is used to determine whether a prior conviction triggers an immigration law-related penalty such as aggravated felony, firearms offense, or crime involving moral turpitude. This is used in immigration proceedings and in federal prosecutions for illegal re-entry into the United States after being convicted of certain offenses. This section will discuss the elements of categorical analysis and how it employs several key concepts in evaluating the immigration penalties that attach to a conviction, as outlined below. The elements of the offense as defined by statute and case law, and not the actual conduct of the defendant, are used to evaluate whether an offense carries immigration penalties such as being an aggravated felony or crime involving moral turpitude; The minimal conduct that could still be held to constitute the offense must fit within the definition of the immigration ground or category, in order for the offense to do so; Where the statute includes multiple offenses, only some of which carry immigration consequences, the immigration judge or other reviewing authority may look only to a strictly limited official record of conviction to determine the elements of the offense of conviction; and If the above principles are employed and the conviction has not been conclusively proved to be one that carries adverse immigration penalties, the noncitizen will be held not to suffer the penalties. Lack of information or ambiguity is always resolved in favor of the noncitizen. 131 B. Categorical Analysis: Elements of the Offense To identify the elements of an offense that were the subject of a prior conviction, the categorical analysis looks only to the statutory definition of the offense and not to the underlying circumstances. If the person actually committed assault but was able to plead to trespass, the analysis will only focus on the elements of the offense of trespass. Begin by looking only at the elements of the crime as set forth in the statute and the case law of the jurisdiction applying the statute (i.e., not information in the record of conviction). The minimum or least offensive conduct that can violate the statute must involve the adverse immigration consequence e.g., be a moral turpitude offense or aggravated felony in order for a conviction under the statute to have that consequence. In other words, the offense qualifies as an aggravated felony, if and only 131 See, e.g., U.S. v. Rivera-Sanchez, 247 F.3d 905, (9 th Cir. 2001)(en banc); U.S. v. Corona-Sanchez, 291 F.3d 1201, (9 th Cir. 2002) (en banc). Chapter 4: Cafefully Crafting a Noncitizen s Plea 51

66 if the full range of conduct covered by [the criminal statute] falls within the meaning of that term. 132 Example: Mr. Ye was convicted of burglarizing a car under Calif. P.C. 460(b), an offense similar to vehicle prowling under RCW 9A To determine whether the conviction was an aggravated felony as a crime of violence, (COV) the court considered the most minimal conduct that could violate the statute. Simply reaching into a car through an open window and removing an article could be a violation of the statute, even though it does not satisfy the requisite threat or use of force necessary to constitute a COV as defined in 18 USC 16. Thus, the court found that the offense was not a COV. 133 C. Modified Categorical Analysis: Divisible Statutes and the Record of Conviction 1. Identifying a Divisible Statute The discussion in Part A centered on the pure categorical analysis for determining the immigration consequences of a specific offense based on the minimum behavior required to be guilty of the offense. Where a statute is broad enough to include various offenses, including some that carry immigration consequences and some that do not, it is referred to as a divisible statute. The modified categorical analysis permits the reviewing authority to examine a limited set of documents that clearly establish that a prior conviction would trigger carry an immigration penalty. If this limited review of documents fails to unequivocally identify the offense of conviction as one that carries an immigration penalty, then the penalty does not apply. 134 In terms of immigration consequences, there are several ways that a single criminal code section can be divisible. For example, a code section may contain multiple subsections, some of which involve firearms and therefore trigger the firearms deportation ground, and some of which do not. It may define the crime in the disjunctive, such as sale of a controlled substance, which is an aggravated felony, or (instead of the conjunctive, and ) offer to sell a controlled substance, which is not an aggravated felony. A section may be so broadly or vaguely drawn that it could include different kinds of offenses, such as assault in the fourth degree under RCW 9A , of which an example is given in the following section. 132 U.S. v. Baron-Medina, 187 F.3d 1144, 1146 (9 th Cir. 1999)(citation omitted). The BIA has long followed this rule in determining what constitutes a crime involving moral turpitude and also applies it to aggravated felonies and other grounds. See, e.g., Matter of Palacios, 22 I. & N. Dec. 434 (BIA 1998); Matter of Alcantar, 20 I & N.801 (BIA 1994); Matter of Magallanes, 22 I. & N. Dec. 1 (BIA 1998); and cases cited infra n. 134 & See Ye v. I S, 214 F.3d 1128 (9 th Cir. 2000). 134 U.S. v. Rivera-Sanchez, 247 F.3d 905, 908 (9 th Cir. 2001) (en banc), quoting from Taylor v. United States, 495 U.S. 575 (1990). See e.g., Chang v. I S, 307 F.3d 1185 (9 th Cir. 2002); Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989). Chapter 4: Cafefully Crafting a Noncitizen s Plea 52

67 2. Record of Conviction: Determining the Elements of the Offense To determine deportability under a conviction-based ground (as opposed to ruling on a discretionary application for residency, or for relief from removal) the immigration court and DHS have some restrictions. The immigration judge in removal proceedings may only consult information in the charging papers (and then only the count that has been pled to or proved); the judgment of conviction; jury instructions; a signed guilty plea; the transcript from the plea proceedings; and the sentence and transcript from sentence hearing. Sources such as a prosecutor s remarks during the hearing, police reports, probation or pre-sentence reports, or statements by the noncitizen outside of the judgment and sentence transcript (e.g., to police or immigration authorities or the immigration judge) may not be consulted. 135 A court docket summary prepared by clerical staff may not be consulted. 136 Similarly, information from a co-defendant s case may not be consulted. For example, if a wife was convicted of assault with intent to commit any felony, the immigration authorities could not look to her husband s record of conviction to define the felony. 137 If there is insufficient information in the record of conviction to identify the offense of conviction in a divisible statute, the reviewing authority must rule in favor of the immigrant. Example: Mr. Rivera-Sanchez was convicted of Calif. H&S 11360(a), which punishes both selling and offering to sell controlled substances. Sale is an aggravated felony, but offering to sell is not. A court reviewing his prior record can look only to limited documents in the record of conviction to determine whether he was convicted of sale or offer to sell. If information in the record of conviction fails to establish that he was convicted of sale, the reviewing authority is required to find that he was not convicted of an aggravated felony. U.S. v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001)(en banc). 3. Defense Strategy: Charging Papers and Plea Agreements For information in a criminal charge to be considered in a modified categorical analysis, there must be proof that the defendant pled to or was 135 See, e.g., Taylor v. U.S., infra n This doctrine applies across the board in immigration cases and has been upheld regarding moral turpitude (see e.g., Matter of Mena, 7 I. & N. Dec. 38 (BIA 1979); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989)(co-defendant s conviction is not included in reviewable record of conviction); Matter of Y, 1 I. & N. Dec. 137 (BIA 1941) (report of a probation officer is not included); Matter of Cassissi, 120 I. & N. Dec. 136 (BIA 1963) (statement of state attorney at sentencing is not included)); firearms (see e.g., Matter of Madrigal, 21 I. & N. Dec. 323 (BIA 1996)(transcript of plea and sentence hearing is included); Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996)(police report is not included); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996)(admission by respondent in immigration court is not included)). See also Abreu-Reyes v. I S, 350 F.3d 966 (9 th Cir. 2003)(withdrawing and reversing Abreu-Reyes v. I..S., 292 F.3d 1029 (9 th Cir. 2002) to reaffirm that probation report is not part of the record of conviction for this purpose, in accord with ruling in Corona-Sanchez, supra n. 89, 106, 112). 136 U.S. v. avidad-marcos, 367 F.3d 903 (9 th Cir. 2004). 137 Matter of Short, 20 I. & N. Dec. 136 (BIA 1989). Chapter 4: Cafefully Crafting a Noncitizen s Plea 53

68 convicted of the specific charge. Information alleged in a count is not part of the record of conviction absent proof that the defendant specifically pled guilty to that count. A charge coupled with only general proof of conviction under the statute is not sufficient. 138 A charging paper charging the offense in the language of the statute is proper and often beneficial to the noncitizen. An original or amended charging paper quoting only the language of the statute can prevent consequences under a divisible statute by being vague. (But see discussion below of BIA s treatment of dropped charges.) Washington case law appears to allow an information charging a defendant with the crime in the exact language of the statute. 139 Presumably such an information clearly states a crime. 140 A plea agreement is a definitive source of information about the offense of conviction, i.e., the elements of the offense for which the defendant actually was convicted. Drafting a plea agreement gives criminal defense counsel the opportunity to create the record of conviction that will be determinative in immigration proceedings. Important information should be affirmatively set out in the plea agreement or colloquy. For example, the Ninth Circuit held that where a plea agreement specified the loss to the victim in the count of conviction was $600, the fact that restitution of over Police reports, affidavits of probable cause, or other documents that are not part of the ROC will become part of the ROC where they are incorporated into the plea agreement as the factual basis for the plea such as in an Alford plea. The general rule is never to make an Alford plea (or Alford-like plea) for noncitizens. Dismissed charges are not part of the ROC. Defense counsel should, whenever possible, arrange for an amended charging document containing only the offense(s) to which defendant pleads guilty. The language in defendant s plea statement is a critical part of the ROC. Unless otherwise advised by immigration counsel, the general rule is to plea only to the language of the statute and do not specify beyond that language what defendant actually did. For example, in a plea to 4 th degree assault under RCW 9A , the plea statement should read, I committed an assault that did not amount to an assault 1, 2, or See, e.g., U.S. v. Corona-Sanchez, supra n. 89, 105, 106, 112; infra n. 314; U.S. v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002). 139 [I]t is sufficient to charge in the language of the statute if the statute defines the crime sufficiently to apprise an accused person with reasonable certainty of the nature of the accusation. State v. Grant, 89 Wn.2d 678, 686, 575 P.2d 210 (1978) (citing State v. Royse, 66 Wn.2d 552, 403 P.2d 838 (1965)). State v. Leach, 113 Wn.2d 679, 686 (Wash., 1989). See also RCW It is undoubtedly the rule in this jurisdiction, as in many others, that it is sufficient, in charging a crime, to follow the language of the statute, where such crime is there defined, and the language used is adequate to apprise the accused with reasonable certainty of the nature of the accusation State v. Forler, 38 Wn.2d 39, 43 (Wash., 1951); see also State v. Johnson, 56 Wash.2d 700, 355 P.2d 13 (1960); State v. Bowman, 57 Wash.2d 266, 356 P.2d 999 (1960). Chapter 4: Cafefully Crafting a Noncitizen s Plea 54

69 $10,000 was ordered (based on losses alleged in dismissed counts) did not establish the offense as one in which the loss to the victim was $10,000 and, thus, the offense was not an aggravated felony under 8 USC 1101(a)(43)(M). 141 See Chapter Ten, Section C1: Fraud Resulting in Loss to Victim of $10,000 or More for more on this ruling. The plea agreement can also be used to delete damaging information that was in the count. Where a charging paper alleges an offense within a divisible statute that carries an immigration penalty, criminal defense counsel should not plead to the count. Counsel can bargain for a substitute charging document or, more easily, correct the record as part of a plea agreement (e.g., Defendant pleads guilty to fraud of $600 ). Counsel can specifically plead to the language of a divisible statute in its entirety, if that is the most beneficial or only possible alternative. If the charge is wrongly phrased in the conjunctive ( and ) while the statute is in the disjunctive ( or ), the defendant should specifically make a plea agreement in the disjunctive. For example I admit to entry with intent to commit larceny or any felony. However, if the defendant did not do this, a plea to a charge in the conjuntive does not necessarily prove the multiple acts. 142 Information from the record of conviction should not be used to add in elements that are not part of the offense. The BIA held that a defendant convicted of an assault offense which had no element requiring the use of any weapon, was not deportable under the firearms ground, even though he pled guilty to an indictment alleging an assault with a gun. 143 However, some courts outside the Ninth Circuit have decided otherwise, especially by considering the age of a victim of a sexual crime, even where age was not an element of the offense. In general, criminal defense counsel should keep the record of conviction as empty of potentially damaging information as is possible. Information from dismissed charges should never be considered in this inquiry. For information in a charge to be evidence of the elements of the offense of conviction, there must be proof that the person specifically pled guilty to or was found guilty by a jury of the charge. The BIA, however, has occasionally referred to dropped criminal charges in its decisions. 144 In a case where a dropped charge would identify a defendant s plea as being to a section of a divisible statute with adverse immigration consequences, criminal defense counsel should protect the defendant by creating a specific plea agreement showing conviction of a section that does not carry those consequences. The plea agreement will trump other information. Immigration counsel should also aggressively assert the conclusive Ninth Circuit 141 Chang v. I S, 307 F.3d 1185 (9 th Cir. 2002). Conviction of fraud with a loss to the victim of more than $10,000 is an aggravated felony. See Note Aggravated Felonies. 142 Matter of Espinosa, 10 I. & N. Dec. 90, 98 (BIA 1962); U.S. v. Hirsch, 308 F.2d 562, 567 (9 th Cir. 1962); in Washington an Information may employ the conjunctive "and" where statute uses "or." State v. Rooney, 2 Wn.2d 17, 97 P.2d 156 (1939); State v. St. Clair, 21 Wn.2d 407, 151 P.2d 181 (1944). 143 Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992) 144 Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651 (BIA 2004). See also Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975); Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965). Chapter 4: Cafefully Crafting a Noncitizen s Plea 55

70 precedent bolstered by the Supreme Court s 2005 ruling in Shepard 145 establishing that information in a criminal charge cannot be considered absent proof that the defendant was found guilty of that particular charge Shepard v. United States, 125 S. Ct (U.S., 2005) Shepard ruled that police reports could not be considered. The same principle should exclude dropped charges from the modified categorical analysis. 146 E.g., in United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir., 2002), the Court explained what documents are adequate to provide evidence of the elements of the conviction: if a defendant enters a guilty plea, the sentencing court may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime. Charging papers alone are never sufficient. However, charging papers may be considered in combination with a signed plea agreement. Id. at 1211 (internal citations omitted) (emphasis added.) The requirement that charging papers be considered in conjunction with the plea or judgment logically eliminates the use of a dropped information. Chapter 4: Cafefully Crafting a Noncitizen s Plea 56

71 CHAPTER FIVE Crimes Involving Moral Turpitude Classification of an offense as a crime involving moral turpitude (CIMT) is based on the elements of the offense, not on the facts of the case. Generally, an offense involves moral turpitude if it contains elements of fraud, theft, and intent to cause great bodily harm, and sometimes lewdness, recklessness, or malice. Felony or misdemeanor classification is not determinative unless the felony and misdemeanor offenses actually have different elements. State court rulings on moral turpitude for civil impeachment purposes are not controlling for immigration. Because the definition of moral turpitude is unclear, there is often uncertainty as to whether an offense will be held to be a CIMT. For more discussion of specific offenses, see works listed in the Resources section of Appendix C. If a criminal statute is divisible for moral turpitude meaning it punishes some offenses that are CIMT s and others that are not the reviewing authority can look only to the record of conviction to determine whether the conviction was for the turpitudinous section. See Chapter Four for more on the Record of Conviction. Whether a noncitizen becomes deportable or inadmissible under CIMT grounds depends on the number of CIMT convictions, the potential or imposed sentence, and the date the offense was committed. Convictions of offenses that do not involve moral turpitude e.g., drunk driving, simple assault do not affect this analysis. A. Grounds of Deportation for Crimes Involving Moral Turpitude 147 A noncitizen will be deportable for one conviction of a crime involving moral turpitude (CIMT) if she committed the offense within five years of her last admission to the United States, and if the offense carries a potential sentence of one year. A gross misdemeanor offense under Washington law retains a potential one-year sentence and can be a basis for deportability. If counsel can bargain to a misdemeanor offense that carries only a possible sentence of six-months or 90 days, then the noncitizen defendant will not trigger this ground of deportation. Example: Marta was last admitted to the United States in In 2003 she is charged with theft in the third degree. She has no priors. If she is convicted of misdemeanor theft she will be deportable because her crime was committed within the first five years of her last admission and it carries a sentence of a year or more. Pleading guilty with a deferred sentence will not help her avoid deportability since it is a conviction in perpetuity for immigration purposes. However, if Marta pleads USC 1227(a)(2)(A)(i), (ii); INA 237(a)(2)(A)(i), (ii). Chapter 5: Crimes Involving Moral Turpitude 57

72 guilty to attempted theft she will not be deportable because the offense has a maximum possible sentence of only 90 days. If Marta had waited until 2006 to commit this first offense she would not be deportable regardless of potential sentence, because it would have been beyond the five year time period. A noncitizen is deportable for two or more convictions of crimes involving moral turpitude that occur anytime after admission, unless the convictions arise in a single scheme of criminal misconduct, which is often interpreted to exclude almost anything but two charges from the same incident. Example: Stan was admitted to the U.S. in He was convicted of assault with a deadly weapon in 1998 and passing a bad check in Regardless of the potential or actual imposed sentences, he is deportable for conviction of two moral turpitude offenses since his admission. B. CIMT as a Ground of Inadmissibility 148 A noncitizen triggers the CIMT ground of inadmissibility where he is convicted of one crime involving moral turpitude, whether before or after admission. Triggering this ground of inadmissibility will render him statutorily ineligible for admission (or readmission) to the U.S., ineligible for permanent resident status (a.k.a. a greencard), and ineligible to establish good moral character (a requirement for citizenship as well as for certain other immigration benefits). There are two important exceptions to the rule. 1. Petty Offense Exception 149 If a noncitizen has committed only one moral turpitude offense ever, the offense carries a potential sentence of a year or less, and the sentence imposed was less than six months, the CIMT ground of inadmissibility automatically does not apply to him/her. Example: Freia is married to a U.S. citizen and is about to apply for lawful permanent resident status when she is charged with second degree theft and has no prior CIMT convictions. Her prior conviction of drunk driving, as a non- CIMT offense, does not affect this analysis. Her defense counsel is able to negotiate a plea to attempted second degree theft with a sentence of 180 days imposed/179 suspended. Freia comes within the petty offense exception. She has committed only one CIMT, it has a potential sentence of a year or less, and the sentence imposed was one month. (For more information about calculating sentence imposed, see Chapter Three: Sentencing Strategies.) Thus, she will not trigger the CIMT inadmissibility ground when she applies for her greencard. 2. Youthful Offender Exception 150 A disposition in juvenile delinquency proceedings is not considered a conviction USC 1182(a)(2)(A); INA 212(a)(2)(A) USC 1182(a)(2)(A)(ii)(II); INA 212(a)(2)(A)(ii)(II) USC 1182(a)(2)(A)(ii)(I); INA 212(a)(2)(A)(ii)(I). Chapter 5: Crimes Involving Moral Turpitude 58

73 and has no relevance to moral turpitude determinations. But persons who were convicted as adults for acts they committed while under the age of 18 can also benefit from the youthful offender exception. A noncitizen who committed only one CIMT while under the age of 18 ceases to be inadmissible as soon as five years have passed since the conviction or release from resulting imprisonment. Example: Raoul was convicted as an adult for felony assault with a deadly weapon, based on an incident when he was 17. He was sentenced to a year and was released from imprisonment when he was 19 years old. He now is 24 years old. Unless and until he is convicted of another moral turpitude offense, he is not inadmissible for moral turpitude. 3. Inadmissible for Making Formal Admission of Crime Involving Moral Turpitude A noncitizen who makes a formal admission to officials of all of the elements of a CIMT is inadmissible even if there is no conviction. 151 This does not apply if the case was brought to criminal court but resolved in a disposition that is less than a conviction (e.g., charges dropped, conviction vacated). 152 Counsel should avoid having clients formally admit to offenses that they are not charged with. This ground does not often come up in practice USC 1182 (a)(2)(a)(i); INA 212 (a)(2)(a)(i). 152 See, e.g., Matter of CYC, 3 I. & N. Dec. 623 (BIA 1950) (dismissal of charges overcomes independent admission). Chapter 5: Crimes Involving Moral Turpitude 59

74 CHAPTER SIX Drug Offenses A. Overview of Immigration Penalties for Drug Offenses 1. Aggravated Felony A controlled substance offense can be an aggravated felony under 8 USC 1101(a)(43)(B) in two ways: If it is an offense (and at least arguably a Washington felony) that meets the general definition of trafficking, such as sale or possession for sale, or If it is a Washington or other state felony offense that is analogous to a federal drug crime referenced in the aggravated felony definition whether or not it involves trafficking, such as some prescription offenses. For an analysis of when the aggravated felony definition applies to a noncitizen Chapter One, Section C4: Aggravated Felony. 2. Definition of Illicit Trafficking as an Aggravated Felony Under 8 USC 1101(a)(43), the term aggravated felony applies to an offense described in this paragraph whether in violation of Federal or State law... The drug-related aggravated felony definition at 8 USC 1101(a)(43)(B) includes illicit trafficking in a controlled substance, so it includes any offense that has an actual trafficking element. However, the definition also incorporates a drug trafficking crime as defined in 18 USC 924(c). This in turn includes any felony punishable under the Controlled Substances Act... (CSA) and two other less important federal drug statutes. Although simple possession is punishable under the CSA, 153 a first simple possession is not punishable by imprisonment of more than a year 154 and therefore would not be a federal felony. 155 There is a split in the circuits about whether such a state simple possession felony is within the definition of aggravated felony, but the Ninth USC 844(a) USC 844(a): Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both, except that if he commits such offense after a prior conviction under this subchapter or subchapter II of this chapter, or a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, he shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years United States v. Arrellano-Torres, 303 F.3d 1173, (9th Cir. 2002). Chapter 6: Drug Offenses 60

75 Circuit has now ruled that it is not an aggravated felony for deportation. 156 However, because a federal first simple possession conviction for either more than 5 grams of cocaine base, or any amount of flunitrazepam, is punishable by more than one year, such state convictions will be aggravated felonies Deportability Grounds Noncitizens are deportable under the following circumstances: If they are convicted of any offense relating to controlled substances, or attempt or conspiracy to commit such an offense, causes deportability under 8 USC 1227(a)(2)(B)(i); If they are convinced of aggravated felony under 8 USC 1227(a)(2)(A)(iii); or If they have been a drug addict or abuser since admission to the United States under 8 USC 1227(a)(2)(B)(ii), regardless of whether there is a conviction. A simple possessory offense will not constitute a crime involving moral turpitude, but any drug trafficking offense will be a CIMT and, thus, could be a basis for deportation under 8 USC 1227(a)(2)(A)(i)&(ii). For an analysis of when the deportation grounds apply to noncitizens see Chapter One: Determing Immigration Consequences and Establishing Defense Goals for Your Noncitizen Client. 4. Inadmissibility Grounds Noncitizens will become inadmissible under the following circumstances: If they are convicted of any offense relating to controlled substances, or attempt or conspiracy to commit such an offense, it will cause inadmissibility under 8 USC 1182(a)(2)(A)(i)(II). If they are currently drug addicts or abusers under 8 USC 1182(a)(1)(A)(iv). A noncitizen is inadmissible if immigration authorities have probative and substantial reason to believe that she ever has been or assisted a drug trafficker in trafficking activities, or if she is the spouse or child of a trafficker who benefited from the trafficking within the last five years. 8 USC 1182(a)(2)(C). If he formally admits all of the elements of a controlled substance conviction. 8 USC 1182(a)(2)(A)(i). The latter does not apply, however, if the charge was 156 See Oliveira-Ferriera v. Ashcroft, 382 F.3d 104, 2004 U.S. App. LEXIS (9 th Cir. 2004); Cazarez- Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir. 2004) USC 844(a). Chapter 6: Drug Offenses 61

76 brought up in criminal court and resulted in something less than a conviction 158 (e.g., if the person pled guilty to simple possession but the conviction was effectively eliminated according to Lujan-Armendariz, which is further discussed in section B.4, below.) Simple possessory offenses will not constitute crimes involving moral turpitude. However, any drug trafficking offense will be a CIMT and, thus, could be an additional basis for inadmissibility and/or removal under 8 USC 1182(a)(2)(A)(i)(II). For an analysis of when the inadmissibility grounds apply to a noncitizen see Chapter One: Determing Immigration Consequences and Establishing Defense Goals for Your Noncitizen Client. B. Simple Possession or Less 1. Minor Drug Offense A conviction for even a minor drug offense such as simple possession under RCW , or attempt or conspiracy to possess will make a noncitizen deportable and inadmissible under the controlled substances violations grounds Possession of Less than 30 grams of Marijuana There is an exception for one conviction of simple possession of less than 30 grams of marijuana: the person is not deportable and a waiver of inadmissibility under 8 USC 1182(h) may be available. However, since RCW is simple possession of less than 40 grams of marijuana, it is imperative that defense counsel plead with specificity and make sure that the plea statement and charging document and judgment and sentence if possible clearly reflect that the defendant possessed an amount less than 30 grams. 3. Felony Simple Possession A conviction for simple possession of a controlled substance that is a felony under Washington law RCW is not an aggravated felony for immigration purposes, but is an aggravated felony for purposes of illegal reentry sentence enhancements in prosecutions under 8 USC Thus, a felony possession conviction will not trigger removal/deportation as an aggravated felony but, if a noncitizen is deported/removed and illegally reenters the U.S., he will be subject to severe sentence enhancements as an aggravated felon if convicted of illegal reentry under 8 USC See, e.g., Matter of CYC, 3 I. & N. Dec. 623 (BIA 1950) (dismissal of charges overcomes independent admission). 159 See 8 USC 1182(a)(2)(A); 1227(a)(2)(B)(ii). Chapter 6: Drug Offenses 62

77 For immigration purposes, the measure of whether a state non-trafficking drug conviction is a "felony" and therefore an aggravated felony is whether the analogous federal drug offense is classed as a felony. Because simple possession is a misdemeanor under federal law, even a state felony conviction for simple possession will not be treated as an aggravated felony in immigration proceedings held in the Ninth Circuit. However, for purposes of criminal illegal reentry sentence enhancements, the test is whether the drug offense is classified as a felony under either state or federal law. Most Washington simple possession offenses such as attempt or conspiracy to possess and possession of marijuana are not aggravated felonies, even where the defendant has multiple simple possession convictions and one or more of them are felonies. 160 In its 2004 decision in Oliveira-Ferreira v. Ashcroft, 161 the Ninth Circuit held a second possession conviction is not made a "felony" under federal law by virtue of a recidivist sentence enhancement. The court noted that a contrary case, U.S. v. Garcia-Olmedo, had been overruled by the en banc decision U.S. v. Corona-Sanchez. Thus in the Ninth Circuit the only simple possession convictions that should be held to be aggravated felonies are the simple possession of flunitrazepam or simple possession of more than 5 grams of crack cocaine. Those are the only simple possession offenses punishable as felonies (without the recidivist enhancement, which does not count for this purpose) under federal law. 4. First Conviction for Simple Possession If there are no prior controlled substance convictions, the Ninth Circuit s Lujan-Armendariz decision states that a first conviction for simple possession (felony or misdemeanor including attempt or conspiracy to possess) that is eliminated under rehabilitative provisions will be deemed eliminated for immigration purposes. 162 This is also true if the first conviction is for an offense less serious than simple possession that is not analogous to a federal drug offense, such as being under the influence or possessing paraphernalia, 163 or for giving away a small amount of marijuana (see 21 USC 841(b)(4)). Numerous types of Washington State rehabilitative relief will qualify a noncitizen to fall within the Lujan-Armendariz rule including: Deferred Imposition of Sentence Dispositions: See Chapter 3 on Sentencing Strategies, section D, Suspended Sentences and Probation, pp , supra. 160 See Oliveira-Ferreira v. Ashcroft, 382 F.3d 104 (9 th Cir. 2004); Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002); U.S. v. Robles-Rodriguez, 281 F.3d 900 (9 th Cir. 2002); U.S. v. Arrellano-Torres, 303 F.3d 1173 (9 th Cir. 2002) F.3d 104, 2004 U.S. App. LEXIS (9 th Cir. 2004) 162 Lujan-Armendariz v. I S, 222 F.3d 728 (9 th Cir. 2000), the exception is based on the Federal First Offender Act (FFOA), see 18 USC Cardenas-Uriarte v. I S, 227 F.3d 1132 (9 th Cir. 2000). Chapter 6: Drug Offenses 63

78 Drug Court Agreements: Note that the offense for which the defendant was permitted to enter into drug court must be a qualifying offense. Thus, drug court dispositions will not fall under the Lujan-Armendariz rule the offense was for some other type of crime (i.e., theft or property offenses) related to their drug addiction or problem; Expungements pursuant to RCW 9.94A.640 and RCW ; and First Time Offender Waiver (FTOW) under RCW 9.94A.650: A FTOW could arguably meet the requirements, but only under the broadest possible interpretation of the Lujan-Armendariz analysis. Although an FTOW does not provide for withdrawal of the plea and dismissal of the case upon completion of conditions it is a form of state rehabilitative relief. Thus, where defendant would have qualified for FFOA had he been prosecuted in federal court and he got an FTOW, there is an argument that Lujan-Armendariz applies. However without a dismissal, vacation, or expungement of the judgment of conviction, this argument relies on a broad untested interpretation of the meaning of obtain relief under a state rehabilitation statute. 164 However, this outcome is only ensured where the defendant has actually obtained the rehabilitative relief and completed whatever process is required (e.g., drug court or deferred sentence probationary conditions). Whether the benefit of this analysis applies to a noncitizen who has a court order that would constitute rehabilitative relief such as a deferred sentence order or drug court agreement remains an open question. The Ninth Circuit recently held that simply having the possibility for future expungement of a simple possession conviction such as what would be available under RCW 9.94A.640 or RCW does not count. The defendant must have actually obtained the expungement prior to the initiation or completion of removal proceedings. 165 Except for a first conviction of one of these offenses, any rehabilitative relief (i.e., withdrawal of the plea after probation pursuant to a deferred sentence or an expungement pursuant to RCW 9.94A.640 (felony) and RCW (misdemeanor)) has no effect for immigration purposes, even though state law may consider the conviction to be utterly eliminated. 5. Drug Addiction and Abuse and Drug Court A person is inadmissible if she is a current drug addict or abuser, and deportable if she has been one at any time since admission to the United States. Dispositions such as drug court placement that require admission of drug abuse or addiction will trigger these grounds. While in various immigration contexts more relief might be available to someone deportable for this than for a straight 164 Chavez-Perez v. Ashcroft, 386 F.3d 1284; 1290 (9 th Cir. 2004). 165 See Chavez-Perez v. Ashcroft, 386 F.3d 1284; (9 th Cir. 2004). Chapter 6: Drug Offenses 64

79 conviction, this still can have serious consequences and each case should be analyzed separately. 6. Drug Paraphernalia Offenses Paraphernalia offenses, including using paraphernalia under RCW (1), are considered controlled substance violations under immigration law. 166 However, if this is a noncitizen s first time drug offense, he may fall within the Lujan-Armendariz exception analyzed above. 167 Using drug paraphernalia to propagate [or] manufacture a controlled substance logically might not come with this exception, while personal use of paraphernalia to ingest a controlled substance, if equivalent to mere possession, logically should, under Cardenas-Uriarte Case Examples Marta, a lawful permanent resident (greencard holder) is convicted of felony possession of cocaine, her first offense. This is a controlled substance violation and she will be subject to deportation/removal based upon this conviction. If she is able to avoid detection by immigration authorities until she is able to obtain discharge from probation and an expungement/vacation under RCW 9.94A.640, the conviction will be deemed eliminated for all immigration purposes. Joanne is convicted of her second possession offense, a misdemeanor conviction for possession of marijuana. Her prior offense was an attempted possession of cocaine. Successful completion of a deferred sentence order or drug court will not eliminate the conviction for immigration purposes because it is not her first simple possession offense. Therefore she is now deportable and inadmissible for having a drug conviction. However, since neither offense is an aggravated felony, if Joanna has had had her greencard for at least 7 years (or 5 years and two years in any other lawful status) she will qualify to ask the immigration judge for cancellation of removal. 169 Tariq is charged with felony drug possession. He admits to having a drug addiction and is given the option to participate in drug court. He successfully completes drug court and the charges against him are dismissed. If this is Tariq s first offense, he is not deportable or inadmissible for the conviction under the Lujan-Armendariz rule. Tariq will not have a conviction for a controlled substance violation under immigration law. However, depending upon what admissions by him are in the 166 Luu-Le v. I S, 224 F.3d 911 (9 th Cir. 2000). 167 Cardenas-Uriarte v. I S, 294 F.3d 1132 (9 th Cir. 2000). 168 Id. at 1138, n 6: [W]e can also imagine crime[s] for possession of drug paraphernalia that Congress may consider more serious than simple possession of a controlled substance, if, for example, a defendant were found in possession of the ingredients and machinery to create methamphetamine. 169 For more information, please see Part II, Section C of this manual Quick Guide to Cancellation of Removal for Legal Permanent Residents. Chapter 6: Drug Offenses 65

80 record, Tariq may be deemed inadmissible and/or deportable for being a drug abuser or drug addict. 8. Defense Strategies for Low Level Drug Offenses Solicitation to Possess under RCW 9A : The Ninth Circuit has held that this offense is not a controlled substance violation or a drug trafficking aggravated felony under immigration law. If client has lawful immigration status particularly a permanent residence or refugee/asylee status this offense will avoid deportation/removal. However, a conviction for this offense may constitute a reason to believe (RTB) that the person has engaged in the illicit trafficking of drugs and thus trigger the ground of inadmissibility (it is not a ground of deportability). The Ninth Circuit has not ruled on this issue. For this reason, these noncitizens should not leave the country (even for brief departures abroad). In any case, if a non-citizen were to plea to solicitation in lieu of simple possession as an alternative to a straight drug possession it would be vitally important to try to craft the record of conviction to show that it was solicitation only for the purpose of the person s own, simple possession. If the plea language is carefully crafted and if all the underlying documents such as police report, original information, or certificate of probable cause support that there was no participation in trafficking it might be possible to plea to solicitation to one s own simple and personal possession, without evoking the RTB ground. If solicitation to possess were to trigger the RTB ground of inadmissibility, it would interfere with applications for citizenship and lawful permanent resident status (as well as certain other forms of relief from deportation/removal). For this reason, it is a risky alternative plea for noncitizens who do not yet have lawful status. Attempt or conspiracy to possess with deferred sentence is the best option to ensure that a first offense will not be a conviction under immigration law and thus, not a basis for deportation/removal. Unlike solicitation to possess, attempt or conspiracy to possess will not trigger the reason to believe inadmissibility ground. If successfully completed, it will not trigger and grounds of inadmissibility and, thus, will not create statutory bars to applying for immigration benefits (such as citizenship or permanent resident status). This resolution falls under the Lujan-Armendariz analysis described above. However, the risk of this strategy is that the plea may constitute a conviction under immigration law until the deferral is successfully completed. The Ninth Circuit has not resolved this issue yet. Thus, the person must remain in the country and have no contact with immigration authorities until the deferral is successfully completed. Defense counsel should negotiate for the shortest deferral period possible and advise clients to return for possible early dismissal as soon as possible. Charges dealt with via Drug Court, as with the deferred sentence option, constitute the requisite rehabilitative relief under the Lujan-Armendariz analysis articulated above. Therefore, simple possessory offenses resolved as successfully completed drug court agreements do not constitute convictions under Chapter 6: Drug Offenses 66

81 the controlled substances grounds of deportation or inadmissibility. In addition to the Lujan-Armendariz analysis, drug court agreements using immigration safe language will not constitute convictions for immigration purposes. 170 However, if the record contains documentation or admission that defendant is a drug abuser or drug addict, it will trigger the inadmissibility and deportation grounds relating to drug abuse/addiction. Being inadmissible affects permanent residents and undocumented persons differently. For undocumented persons, it is almost impossible ever to obtain permanent residency or any lawful status once inadmissible under this ground, even if the person has strong equities such as being married to a U.S. citizen or a strong asylum case. A permanent resident who becomes inadmissible, however, faces less severe penalties. The person cannot travel outside the United States, and will have to delay applying to become a U.S. citizen for some years, but will not lose her green card based solely on being inadmissible (as opposed to deportable, which does cause loss of the green card). If the controlled substance in the case is not specifically identified either in the record of conviction or the terms of the statute then the government is deemed unable to prove that the offense involved controlled substances and there are no immigration consequences. 171 Felony or misdemeanor expungements/vacations of first time simple possession (or lesser) offenses will eliminate the immigration consequences by bringing the offense within the Lujan-Armendariz exception. However, this is only effective once the conviction has actually been expunged, which is 5 years after discharge from probation for Class C felonies; 3 years for gross misdemeanor offenses. In the interim, the offense will constitute a conviction for immigration purposes that will subject the noncitizen to the applicable grounds of deportation and inadmissibility. C. Drug Trafficking Offenses and Strategies 1. Trafficking Provisions Convictions under RCW for manufacture, delivery or possession with intent will constitute both controlled substance violations and drug trafficking aggravated felonies under immigration law. There is an argument that the manufacture of drugs or possession with intent to do so is not an aggravated felony. The Washington statute is not a direct analogue to the federal statute, which has an element of knowledge. Since it is possible to manufacture drugs for personal use, there is no establishment of a commercial element necessary for the offense to fall under the common sense definition of trafficking. However, 170 To learn more about immigration safe language for drug court and other deferred adjudication agreements, please go to the Immigration Project link on the WDA s website at Matter of Paulus, 11 I&N 274 (BIA 1965). Chapter 6: Drug Offenses 67

82 these are only arguments. Conservatively speaking, counsel should make every effort to avoid conviction under these provisions. But, if a conviction under one of these statutes is unavoidable, pleading to manufacture or possession with intent to do so is better than pleading to delivery. 2. Counterfeit Provisions Convictions under RCW and RCW involving counterfeit substances will constitute controlled substance violations under immigration law. They are also likely to constitute drug trafficking aggravated felonies. The federal statute defining drug-trafficking aggravated felonies covers counterfeit substances, and prohibits creating, distributing, dispensing and possession with intent to do any of the above. 172 Both the state and federal statutes contain the language create in place of the term manufacture in the controlled substances sections. The term delivery is encompassed in the federal definition of distribute, so it is likely to be an aggravated felony. 173 NOTE: If it were possible to have a conviction solely for possess[ing] a counterfeit [controlled] substance under , without intent to distribute or dispense and with no element relating to illicit trafficking-- analogous to a simple drug possession-- then that would arguably not be an aggravated felony. The bare statutory language seems to allow it (despite the implied logical absurdity). The statute may be theoretically divisible for aggravated felony purposes, since 21 USC 841(a)(2) criminalizes possession with intent to distribute but RCW includes simply possession, of a counterfeit controlled substance. 174 However, it would be better to look for an alternative and use this type of crafting the plea language only as a last resort. 3. Solicitation to Deliver or Manufacture Controlled Substance The Ninth Circuit has held that this offense is neither a controlled substance violation nor a drug trafficking aggravated felony under immigration law. 175 If the noncitizen defendant has lawful immigration status particularly a permanent residence or refugee/asylee status this offense will avoid deportation/removal. However, a conviction for this offense may constitute a reason to believe (RTB) that the person has engaged in the illicit trafficking of drugs and thus trigger that ground of inadmissibility (it is not a ground of deportability). The Ninth Circuit has not ruled on this issue. For this reason, noncitizens with lawful status who are convicted of these offenses should not leave the country (even for brief departures abroad) USC 841(a)(2). 173 See 21 USC 802(11). 174 Under 21 U. S.C. 841(a) which is part of the Controlled Substance Act offenses include knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance. The difference in statutory language is arguably meaningful. 175 See RCW 9A Chapter 6: Drug Offenses 68

83 Additionally, if solicitation to possess does trigger the RTB ground of inadmissibility it will interfere with applications for citizenship and lawful permanent resident status (as well as certain other forms of relief from deportation/removal). For this reason it may not be a useful strategy for noncitizens who are able to apply for lawful status. For noncitizens who are facing certain removal/deportation, a solicitation conviction rather than a drug trafficking conviction under one of the statutes in RCW can be beneficial because it will not subject them to expedited removal as an aggravated felon, nor will it subject them to the more severe sentence enhancements for aggravated felons if they illegally reenter the U.S. and face prosecution under 8 USC See section seven below for more on the reason to believe standard below. 4. Rendering Criminal Assistance RCW 9A is Washington s version of the offense of accessory after the fact 176 and is a good alternate plea to a drug offense. Being an accessory to a drug offense is not considered an offense relating to controlled substances and so does not make the non-citizen deportable or inadmissible for having a drug conviction. Neither is it an aggravated felony, as long as a sentence of a year or more is not imposed. 177 There is some chance, however, that the government will assert that the act of hiding a drug trafficker after he has completed the trafficking is aiding or colluding in the trafficking, and will assert that the conviction gives them reason to believe the person is inadmissible under that ground. See RTB analysis below. While still preferable to a drug-related aggravated felony, RCA may nonetheless be separately treated as a Crime Involving Moral Turpitude. Before accepting a plea to RCA defense counsel should analyze whether your client: a) would be deportable for a crime or crimes of moral turpitude; and b) would be eligible for cancellation of removal 178 or another waiver. 5. Delivery of Substance in Lieu of Controlled Substance If solicitation and rendering criminal assistance are not available as alternatives, negotiating a specific plea under the Burn Statute, RCW , might provide an alternative. Such a plea under this statute should be limited to offering a controlled substance and then giving a substance in lieu of a controlled substance. Although there is no specific case law on this statute in the immigration statute, analysis of other relevant Ninth Circuit case law provides a strong argument that such an offense does not constitute drug trafficking and may not even constitute a controlled substance violation under immigration law. For purposes of the drug trafficking aggravated felony provision, such an offense does not have the requisite commercial element to fall within the common or USC Matter of Batista-Hernandez, 21 I&N 955 (BIA 1997). 178 For more information, please see Part II, Section C of this manual Quick Guide to Cancellation of Removal for Legal Permanent Residents. Chapter 6: Drug Offenses 69

84 ordinary definition of trafficking. And the Ninth Circuit has ruled that offering for sale is equivalent to solicitation and thus, not an aggravated felony for the same reason. Regarding the crime relating to a controlled substance ground, a simulated controlled substance is clearly distinct from a counterfeit substance treated in RCW and in the federal drug statutes incorporated into the aggravated felony definition 179 However, there is no authority to buttress these arguments so it is important to keep in mind that there is still a danger than such an offense could be considered a drug crime under these provisions. 6. Controlled Substance Not Identified If the controlled substance in the case is not specifically identified either in the criminal record of conviction or the terms of the statute of conviction then in the removal proceedings, the government is deemed unable to prove that the offense involved controlled substances and there are no immigration consequences. 180 Example: The defender bargains for a substitute complaint that does not identify the controlled substance involved, which is not identified under the terms of the statute. Even if the offense involved sale, it would not be an aggravated felony or a deportable or inadmissible offense or give the government reason to believe that there was trafficking in a controlled substance. 7. Inadmissible for Reason to Believe Assisted Drug Trafficking A noncitizen is inadmissible if immigration authorities have reason to believe that she ever has been or has assisted a drug trafficker. 181 A conviction is not necessary, but a conviction or substantial underlying evidence showing sale or offer to sell will alert immigration officials and serve as reason to believe. Because reason to believe does not depend on proof by conviction, the government is not limited to the record of conviction and may seek out police or probation reports or use defendant s out-of-court statements. Who is hurt by being inadmissible? Being inadmissible affects permanent residents and undocumented persons differently. For undocumented persons the penalty is quite severe: it is almost impossible ever to obtain permanent residency or any lawful status once inadmissible under this ground, even if the person has strong equities such as being married to a U.S. citizen or a strong asylum case. A permanent resident who becomes inadmissible faces less severe penalties: the person cannot travel outside the United States, and will have to delay applying to become a U.S. citizen for some years. But she will not lose the green card based solely on being inadmissible as long as she does not leave the USA and try to come USC 841(a)(2). A simulated controlled substance is not listed in 21 USC Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965) USC 1182(a)(2)(C); INA 212(a)(2)(C): The verbs are: has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled substance, or endeavored to do so. Chapter 6: Drug Offenses 70

85 back (as opposed to becoming deportable, which could cause loss of the green card). To avoid being inadmissible under this ground, a noncitizen needs to plead to some non-drug-related offense. If that is not possible, an offense like solicitation or rendering criminal assistance 182 (accessory after the fact) is better than a drug offense, but the government may argue that this nonetheless provides reason to believe. The person also should know that, when applying for immigration status, she would be questioned by authorities about whether she has been a participant in drug trafficking. She can remain silent but this may be used as a factor to deny the application. Conviction of straight possession, being under the influence, and use of paraphernalia to ingest a drug do not necessarily give the government reason to believe a person is trafficking (unless it involves a suspiciously large amount of drugs). 8. Case Examples Dan is a lawful permanent resident who is arrested after a hand-to-hand sale and charge with possession with intent to deliver cocaine. His defender negotiates for him to plead guilty to the offense of rendering criminal assistance. This deal avoids Dan becoming deportable for a controlled substance violation and for a drug trafficking aggravated felony. However, Dan can never leave the U.S. because he is now inadmissible and if he does leave, he cannot reenter. The conviction will also interfere with any future applications for citizenship. Nicole is undocumented and charged with sale. Because she is undocumented her first concern is to avoid being inadmissible. To do that, she must plead to an offense not related to trafficking. A first conviction of simple possession with a deferred sentence would not make her inadmissible or deportable once the plea is withdrawn. It is possible but not at all guaranteed that she can avoid inadmissibility if she pleads to a solicitation to manufacture for with a record of conviction that indicates that it was for her personal use. It would at least avoid conviction of an aggravated felony. It would be better if she could plead to an offense not related to controlled substances. She should know that if she was ever to apply for lawful status, immigration authorities would ask her if she had participated in drug trafficking and might consider all evidence available, including police reports. Abdullah is a refugee who is charged with manufacture of a controlled substance. His defender is able to negotiate a plea to the offense of solicitation to manufacture, under RCW 9A The defendant s statement on plea of guilty indicates that the manufacturing was for his personal use. This deal avoids making Abdullah deportable for a controlled substance violation and for a drug trafficking aggravated 182 RCW 9A Chapter 6: Drug Offenses 71

86 felony. However, as a refugee he is entitled in fact required 183 to apply for lawful permanent resident status. This incident may prevent his application from being approved if it is deemed to constitute a reason to believe that he has engaged in drug trafficking. Like Dan, he should not leave the U.S USC 1159(a)(1)(C); INA 209(a)(1)(C) ( shall, at the end of such year period, return or be returned to the custody of the Service for inspection and examination for admission to the United States as an immigrant ). Chapter 6: Drug Offenses 72

87 CHAPTER SEVEN Firearms and Other Weapons Offenses Firearms offenses can trigger removal for noncitizens under two provisions of immigration law: (1) as a ground of deportation under 8 USC 1227(a)(2)(C); and (2) as an aggravated felony under 8 USC 1101(a)(43)(C)&(E). There is no firearms ground of inadmissibility under 8 USC 1182(a)(2). As outlined below, this means that Certain firearms offenses (most) will trigger deportation for noncitizens who have lawful permanent residence (or some other lawful status) as a firearms offense under 8 USC 1227(a)(2)(C) (firearms ground). Certain firearms offenses will constitute aggravated felonies under 8 USC 1101(a)(43)(C)&(E). As such, they will trigger deportation for lawful permanent residents and other lawfully admitted noncitizens pursuant to 8 USC 1227(a)(2)(A)(iii) (aggravated felony ground of deportation). As such, they can subject all noncitizens except LPRs to expedited removal procedures per 8 USC 1228(b). Additionally, firearms offenses that constitute aggravated felonies will subject noncitizens to sentence enhancement requirements in any prosecution for illegal reentry after deportation under 8 USC A firearms offense is not a ground of inadmissibility. An aggravated felony is not a ground of inadmissibility. Thus, if a noncitizen is otherwise eligible to apply for lawful permanent resident status, a conviction for a firearms offense will not trigger statutory bars to applying for (or re-applying for) LPR status. 184 Note that a firearms offense would constitute a negative discretionary factor in an application for status. A. Firearms Offenses as Grounds for Deportation A noncitizen with lawful status or who was lawfully admitted to the U.S. is deportable if, at any time after entering the United States, he is Convicted under any law of: purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry in violation of any law, any weapon, part or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) However, noncitizens subject to expedited removal pursuant to 8 USC 1228(b) because their firearms offense constitutes an aggravated felony will be procedurally barred from applying for LPR status (or virtually all other forms of relief from removal) even if they are statutorily eligible. See 8 USC 1228(b)(5); INA 238(b)(5) USC 1227(a)(2)(C); INA 237(a)(2)(C). (Before April 1, 1997, this was 8 USC 1251(a)(2)(C); INA 241(a)(2)(C)). Chapter 7: Firearms and Other Weapons Offenses 73

88 1. The Firearms Ground of Deportation This firearms provision 186 is a ground of deportation and, as such, applies only to noncitizens who are here in lawful status (e.g., greencard holders, student visas) or who were lawfully admitted (regardless of whether their lawful status has since expired). Note: A conviction for attempt or conspiracy to commit any of the listed offenses will constitute a deportable offense. Thus, these offenses are not safe alternatives. There is no corresponding ground of inadmissibility for firearms offenses contained at 8 USC 1182(A)(2). Thus, firearms offenses do not trigger a statutory ground of removal for persons who entered the U.S. without ever being legally admitted, and have never obtained lawful status. Nor do they trigger most statutory bars to obtaining immigration benefits. However, they might separately constitute crimes of moral turpitude or aggravated felonies (see below, Part B: Firearms That Are Aggravated Felonies), that will trigger removal and/or statutory bars to obtaining immigration benefits. As highlighted below, criminal defense counsel should assume that the firearms deportation ground includes convictions of pure firearms offenses as well as weapons offenses where use of a weapon is an element of the statute and the record of conviction identifies the weapon in the case to be a firearm (e.g., a conviction under RCW 9A (c) for assault in the second degree with a deadly weapon where the record of conviction indicates the weapon was a firearm) Definition of Firearms and Destructive Devices 188 Under 18 USC 921(a), firearm includes guns or firearms, frames and receivers, and silencers. 189 Destructive device includes objects such as bombs, grenades, rockets or similar devices, or parts used to convert or create USC 1227(a)(2)(C); INA 237(a)(2)(C). Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable. 187 See, e.g., Valerio-Ochoa v. I S, 241 F.3d 1092 (9 th Cir. 2001) (discharging a firearm negligently in violation of Calif. P.C is deportable firearms offense). 188 For a thorough analysis of the definition of firearms and destructive devices see N. Tooby, Criminal Defense of Immigrants 4.39 (3d ed. 2003) 189 The federal statutory definition of firearms contains an exception for antique firearms. The Washington definitional statute at RCW defines antique firearms but does not create any similar exception. Therefore, it is arguable that, unless DHS can show by clear and convincing evidence that the firearm at issue was not an antique, a Washington conviction relating to firearms should not be considered a basis of deportation or aggravated felony absent clarification that an antique firearm was not involved. This is a risky proposition and should not be relied upon by defense counsel in analyzing a criminal case. Chapter 7: Firearms and Other Weapons Offenses 74

89 firearms or destructive devices. 190 Shotguns and other guns used for sport do fall under the firearms definition (although 921(a)(4) s definition of destructive devices excludes a sporting shotgun or shell, or a rifle which the owner intends to use solely fo rsporting, recreational or cultural purposes ). Note that the term firearm does not include an antique firearm as defined at 18 USC 921(a)(16). Given the breath of both of these definitional provisions, defense counsel should assume that the firearm or destructive device will fall within them, unless counsel specifically determines that the firearm or device at issue under the Washington Statutes is not listed under the federal statute at 18 USC 921(a). Note that such a determination, although difficult to come by, would render the noncitizen not deportable under this provision. In such an instance, defense counsel must ensure that defendant s plea statement clearly reflects a firearm or destructive device that is not listed under the federal statutes. Immigration Defense Argument: Antique Firearms Immigration counsel should consult K. Brady, California Criminal Law & Immigration, at 6.1(H), and N. Toby, Criminal Defense of Immigrants, at 4.40(1) for more information on antique firearms. See Appendix C: Additional Resources. 3. Sentence Length for Firearms Offense Irrelevant The firearms ground of deportation does not reference any standard maximum or minimum sentence length. Thus, the amount of sentence imposed in relation to a firearms offense is irrelevant. If it constitutes a firearms offense under the immigration statute, it will trigger deportation regardless of the sentence imposed. B. Firearms Offenses That Are Aggravated Felonies Two categories of firearms offenses are listed as aggravated felonies: illicit trafficking in firearms or destructive devices, under 8 USC 1101(a)(43)(C); and miscellaneous federal firearms offenses, under 8 USC 1101(a)(43)(E). 1. Trafficking in Firearms or Destructive Devices 191 The firearms trafficking definition of an aggravated felony is limited to the common-sense definition of trafficking (i.e., selling, dealing, trading). Federal criminal statutory definitions are incorporated only to define the firearms, destructive devices, or explosives that must be the subject of the trafficking. Sale, possession for sale, and other offenses that constitute 190 There is an exception in the definition of destructive devices for rifles used solely for sporting, recreational and cultural purposes. However, there is no such exception in the firearms definition and offenses involving hunting rifles used for one of these purposes do constitute convictions for immigration purposes. See United States v. Meldish, 722 F.2d 26 (2d Cir. 1983), cert. denied, 465 U.S (1984) USC 1101(a)(43)(C); INA 101(a)(43)(C). Chapter 7: Firearms and Other Weapons Offenses 75

90 trafficking in firearms are aggravated felonies. Firearms and destructive devices are defined in 18 USC 921(a)(3) for this purpose. Except for armor piercing ammunition, this section does not mention any criminal offense involving ammunition. Illicit trafficking in explosives materials (as defined in 18 USC 841(c)) also constitutes an aggravated felony. 192 Explosive materials mean explosives, blasting agents, and detonators. 193 Explosives mean any chemical compound mixture, or device, the primary or common purpose of which is to function by explosion. 194 One should note that [s]mall arms ammunition and components thereof are not considered to be explosives except for certain offenses contained in 18 USC 844(d)-(I) involving intent to kill, injure, or intimidate or actual destruction of property. 195 There is no requirement of a sentence of one year or more (or any period) to trigger removal under this provision. 2. Other Firearms Offenses Certain offenses that do not involve trafficking also are aggravated felonies under 8 USC 1101(a)(43)(E). 196 The provisions listed therein identify numerous federal firearms offenses that are aggravated felonies. 197 Additionally, state offenses that are exactly analogous to the federal offenses outlined therein will also constitute aggravated felonies. Most of the federal offenses listed do not appear to have Washington State analogues, with one notable exception: conviction for unlawful possession of a firearm under RCW (1). 198 In order to be an aggravated felony under this provision, the RCW at issue would have to be sufficiently analogous to one of the following felonies referenced by this section: USC 1101(a)(43)(C); INA 101(a)(43)(C) USC 841(c) USC 841(d). The Secretary shall publish and revise at least annually in the Federal Register a list of these and any additional explosives which he determines to be within the coverage of this chapter. Id USC 845(a)(4) USC 1101(a)(43)(E); INA 101(a)(43)(E). Under the IIRIRA 1996 amendment, these offenses are aggravated felonies regardless of the date of conviction in all actions taken on or after September 30, Previously these offenses were aggravated felonies only as to convictions entered on or after October 25, 1994, the date of enactment of the Technical Corrections Act. Immigration and Nationality Technical Corrections Act of Oct. 24, 1994, 222, Pub. L. No , 108 Stat (1994). 197 For a detailed listing of the federal statutes referenced in 8 USC 1101(a)(43)(E) see N. Tooby, Criminal Defense of Immigrants 6.53 (3d ed. 2003). 198 The 9 th Circuit has held that unlawful possession of a firearm in the first degree under RCW (1)(a) is an aggravated felony under 8 USC 1101(a)(43)(E) because it is an offense described in a federal firearms offense definition at 18 USC 922(g)(1). United States v. Mendoza-Reyes, 331 F.3d 1119, (9th Circuit 2003.) See also Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002); U.S. v. Castillo-Rivera, 244 F.3d 1020 (9 th Cir. 2001). 199 See United States v. Mendoza-Reyes, 331 F.3d 1119, (9th Cir. 2003) for analysis of what constitutes a sufficiently analogous Washington State statute. Chapter 7: Firearms and Other Weapons Offenses 76

91 18 U.S.C. 842(h), to receive, possess, transport, ship, conceal, store, barter, sell, dispose of,...any stolen explosive materials... shipped or transported in, interstate or foreign commerce, either before or after such materials were stolen, knowing or having reasonable cause to believe that the explosive materials were stolen; 18 U.S.C. 842(i), possession, or shipping or receiving of explosives in interstate or foreign commerce by indictee, felon, fugitive, drug addict or abuser, or mental defective or person committed to a mental institution; an alien who is not an LPR or certain other legal immigrant categories; or a person dishonorably discharged or who has renounced US citizenship; 18 U.S.C. 844(d), transportation or receipt of explosives in interstate or foreign commerce with intent to injure or intimidate people, or damage property; 18 U.S.C. 844(e), communication of threat or false information concerning attempt to injure, intimidate, or damage property by fire or explosive; 18 U.S.C. 844(f), malicious damage by fire or explosive of property of U.S. or organization receiving federal funds; 18 U.S.C. 844(g), illegal possession of an explosive in airport or any building owned or used by the US government; 18 U.S.C. 844(h), use of fire or explosive to commit a federal felony; or the carrying of an explosive during the commission of a federal felony; or 18 U.S.C. 844(i), malicious destruction by fire or explosive of property used in or affecting commerce. Again, most of the Washington firearms statutes appear to not be sufficiently analogous to the federal statutes outlined in this section of the aggravated felony definition (with notable exceptions outlined, infra). However, defense counsel should take care to check it against any of the above referenced statutes in any particular case. The Ninth Circuit has ruled that where conduct could violate a state statute, yet not violate the federal analogue, a state conviction does not constitute an aggravated felony described in the federal statute for federal sentencing purposes. In order for a state offense to be described in a federal one, all of the conduct criminalized by the state law must be included within the conduct criminalized by the federal law. 200 Thus the court found that a Washington state offense of being a noncitizen in possession of a firearm at RCW is not an aggravated felony because it 200 United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000)(reversing 16-level increase in offense level for illegal reentry, since state firearms offense was not described in federal firearms statute). Chapter 7: Firearms and Other Weapons Offenses 77

92 was not sufficiently analogous to the federal offense of being a noncitizen unlawfully present in the United States in possession of a firearm, under 18 USC 922(g)(5). However, a state statute need not contain the federal jurisdictional element (e.g., crossing state lines) of an analogous federal statute in order to be described in the federal statute. Thus the offense of being in unlawful possession of a firearm in the first degree under RCW (1) is an aggravated felony because it is an offense described in a federal firearms offense definition at 18 USC 922(g)(1), despite the fact that the federal offense requires conduct affecting interstate commerce and the state offense does not. This is the rule both in immigration and federal criminal proceedings within the Ninth Circuit. 201 There is no requirement of a one-year sentence to trigger removal as an aggravated felon under this provision. 3. Crimes of Violence 202 An offense that involves firearms or weapons can also separately constitute an aggravated felony as a crime of violence if the criminal statute requires or involves the use or threat of use of force. The offense would have to meet the federal definition of a crime of violence under 18 USC 16. Examples of this type of offense would be assault in the second degree under RCW 9A (1)(c) or robbery in the second degree under RCW 9A.56. In order to be an aggravated felony as a crime of violence, the requisite conviction must have had a sentence imposed (regardless of time suspended) of one year or more. 4. Attempt or Conspiracy Convictions 203 Attempt or conspiracy to commit any of the firearms or destructive devices offenses listed in the above provisions of 8 USC 1101(a)(43)(C) or (E), or any offense that is a crime of violence under 8 USC 1101(a)(43)(F), will be an aggravated felony. However, as discussed in detail in Part D, 201 The Board of Immigration Appeals initially held that a California conviction for felon in possession of a firearm could not be an aggravated felony because it lacked the jurisdictional element relating to interstate commerce in Matter of Vasquez-Muniz, 22 I. & N. Dec (BIA 2000). Thereafter, the Ninth Circuit held that this offense did qualify as an aggravated felony for sentencing guidelines purposes, rejecting the argument that the state offense lacked the federal jurisdictional element requiring an effect on interstate commerce. See U.S. v. Castillo-Rivera, 244 F.3d 1020 (9 th Cir. 2001), The BIA then reversed its earlier decision to be in accord with Castillo-Rivera. Matter of Vasquez-Muniz, 23 I. & N.Dec. 207 (BIA 2002), reversing 22 I. & N.Dec (BIA 2000). U.S. v. Mendoza-Reyes, 331 F.3d 1119 (9 th Cir. 2003) (conviction under RCW (1)(a) of possession of a firearm by person convicted of a serious crime is an aggravated felony, where all offenses included in definition of serious crime have a potential sentence of more than a year) USC 1101(a)(43)(F); INA 101(a)(43)(F) USC 1101(a)(43)(U); INA 101(a)(43)(U). Chapter 7: Firearms and Other Weapons Offenses 78

93 solicitation, rendering criminal assistance and misprision of felony should not be aggravated felonies under these provisions. C. Additional Safer Pleas & Strategies for Firearms Cases 1. Sanitizing the Record of Conviction The record of conviction (ROC) for immigration purposes includes the plea agreement, the judgment & sentence (including sentencing transcript), and the charging document related to the offense(s) to which defendant plead guilty. When dealing with the firearms ground of deportation and the firearms aggravated felony grounds, the government must establish that the elements of the offense at issue involved a firearm or destructive device. In so doing, the government is limited to the documents contained in the record of conviction. Thus, if the ROC does not clearly establish that the weapon at issue was a firearm (or destructive device or explosive), the government will not be able to meet its burden of proof. Whenever possible in firearms cases where the statute only references weapons, defense counsel should avoid any specific reference to a firearm (or destructive device or explosive device) in the record of conviction. This can sometimes be difficult to do as the prosecutor and judge may insist upon identifying the weapon at issue in order to establish a factual basis for the plea. If possible, defendant should push for doing this anyway, at least as to the records at issue. A lesser, but worthwhile alternative to this could be to sanitize the records of any reference to a firearms (or destructive/explosive) device) but agree to identify the specific weapon on the record at the plea and sentencing hearing. While technically these transcripts are part of the record of conviction, it is rare that the government actually obtains and transcribes them for immigration proceedings. 2. Malicious Mischief as an Alternative 204 In any firearms case (or destructive/explosive devices case) defense counsel would do well to negotiate to the alternate offense of malicious mischief. Malicious mischief is not a removable offense. Provided that there is not a sentence of one year or more imposed, it does not trigger any of the grounds of deportation, grounds of inadmissibility, or the provisions of the aggravated felony definition RCW 9A The Ninth Circuit has ruled that this statute is not a crime of moral turpitude. See Rodriguez-Herrera v. I S, 52 F.3d 238 (9th Cir. 1995). It also should not trigger deportation pursuant to the domestic violence ground of deportation since that provision is limited to crimes against a person and malicious mischief is a crime against property. See 8 USC 1227(a)(2)(E)(i); INA 237(a)(2)(E)(i). While malicious mischief may or may not constitute a crime of violence under 18 USC 16, as long as there is a sentence of less than one year imposed (regardless of time suspended) the conviction will not be an aggravated felony under 8 U.S.C 1101(a)(43)(F) s crime of violence provision. Chapter 7: Firearms and Other Weapons Offenses 79

94 3. Negligent Assault 206 In addition to malicious mischief, convictions under the (f) negligence provision of the assault statute will avoid removal. 207 Thus, whenever possible, Assault 3 with negligence, like malicious mischief, is a safe and preferable option to a conviction involving firearms 208. If the negotiated plea is to attempted assault pursuant to this statue, it is important that the sentence imposed (regardless of time suspended) is less than 365 days. For more in sentencing, see Chapter Three: Sentencing Strategies. 206 RCW 9A (f). 207 The BIA has ruled that this statute does not constitute a crime of moral turpitude. See Matter of Perez- Contreras, 20 I. & N. Dec. 615 (BIA 1992). Both the Ninth Circuit and the U.S. Supreme Court have held that in order to constitute a crime of violence (COV) under 18 USC 16, the offense must involve the volitional use of force and negligent actions will not suffice. Thus, this offense does not trigger deportation under the COV provisions of the aggravated felony definition at 8 USC 1101(a)(43)(F); INA 101 (a) (43)(F) or the COV provisions of the domestic violence ground of deportation at 8 USC 1227(a)(2)(E)(i); INA 237(a)(2)(E)(i). 208 Note that RCW 9A (d) also requires only a mens rea of negligence: [w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm. In pleading to this subsection it would be vital to keep any reference to a firearm as opposed to a generic weapon out of the record of conviction. Chapter 7: Firearms and Other Weapons Offenses 80

95 CHAPTER EIGHT Domestic Violence, Stalking, Crimes against Children and Prostitution Offenses A. Domestic Violence as a Ground of Deportation 1. Definition of Domestic Violence as Ground of Deportation Many types of domestic violence (DV) convictions risk triggering the ground of deportation for certain noncitizens. This ground of deportation at 8 USC 1227(a) (2)(E)(i) requires four elements. The defendant must have: A conviction for a crime of violence, as defined at 18 USC 16; o Committed against a person who is a current or former spouse, co-habitant, co-parent, or person protected under state or tribal DV laws. 2. Noncitizens in Danger of Deportation for Domestic Violence Convictions All of the grounds of deportation at 8 USC 1227(a)(2), including the DV ground, apply mainly to persons with ongoing legal status, such as lawful permanent residents (greencard holders), refugees/asylees, or persons with some other lawful status (e.g., Temporary Protected Status, student visas, continuing employment visas such as H1-Bs). A person with no lawful status does not have to worry particularly about the grounds of deportability unless she is eligible to apply for certain forms of immigration benefits. 209 Either way, where a noncitizen is facing removal under the DV ground of deportation for an alleged DV conviction, the government has the burden to establish deportability by clear and convincing evidence. 210 This does not mean that persons without lawful immigration status cannot be hurt by DV or other criminal convictions. It just means that they have different criminal defense goals: they often are more concerned with the grounds of inadmissibility at 8 USC 1182(a) than the grounds of deportability. There is no "domestic violence" ground of inadmissibility. Some but not all convictions involving violence also are "crimes involving moral turpitude," and these can adversely affect the immigration situation of undocumented persons, but under a different legal theory. See Chapter 209 See 8 USC 1229b(b)(2); INA 240A(b)(2) (cancellation of removal for undocumented persons here for over 10 years who can prove that removal would result in outstanding hardship to immediate relatives who are US citizens or lawful residents); 8 USC 1229b(b)(3); INA 240A(b)(3) (cancellation of removal for certain undocumented persons who are survivors of domestic violence). For more information, please see Part II, Section C of this manual Quick Guide to Cancellation of Removal for Legal Permanent Residents. 210 See 8 USC 1229a(c)(3); INA 240(c)(3); Woodby v. I S, 385 U.S. 276 (1966). Chapter 8: Domestic Violence, Stalking, Crimes against Children and Prostitution Offenses 81

96 Nine: Analysis of Crimes of Violence & Strategies for Avoiding a COV Conviction, and Chapter Five: Crimes Involving Moral Turpitude for more information. 3. Evidence Needed to Establish Requisite Domestic Relationship In order to sustain the DV ground of deportability, the government must establish that the requisite relationship existed between the defendant and the victim. In addition to the federal list set forth above, the list will also include persons protected under Washington DV laws as outlined at RCW How the government can meet its burden to establish the relationship requirement has, until recently, been unclear. In U.S. v. Belless, 211 although reviewing a different but similar DV-related statute, the court held that the domestic relationship did not have to be an actual element of the offense. 212 However, it did not address the issue further as the defendant had admitted the spousal relationship in earlier proceedings. In Tokatly v. Ashcroft, 213 the Ninth Circuit held this practice unacceptable and limited the evidence the government could use to establish the requisite domestic relationship to evidence contained in the official record of conviction. 214 The vast majority of DV offenses in Washington courts are not prosecuted under statutes that specifically have the relationship as an element of the offense. However, under the law it appears that the relationship should be treated as an essential element of the offense which must be established if, at a minimum, designation of the offense as domestic violence would subject the defendant to increased penalties. 215 In practice it appears that procedures for determining the domesticity of a relationship vary across the state. Some prosecutors insist upon charging and proving the relationship element in every case. In many more cases the issue is routinely given little attention in the proceedings. While this manual does not advocate sloppy lawyering, failing to make a record that clearly shows the domestic relationship in a DV case could be extremely helpful to noncitizen defendants. Under Tokatly, if all the government has at a deportation hearing were a criminal charging document with a DV stamp on it, it would arguably not meet the government s burden to establish deportability under the DV ground. However, defense counsel should act conservatively and assume until the courts hold 211 U.S. v. Belless, 338 F.3d 1063 (9 th Cir. 2003). 212 Belless at Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004). 214 Prior to Tokatly, it was a point of controversy in immigration proceedings as to whether this domestic relationship must be shown by the official record of conviction, or whether additional evidence of the relationship can be shown at the immigration hearing. Many immigration judges allowed the government to introduce evidence outside of the ROC to establish the relationship, such as new testimony, a marriage certificate, etc. 215 See State v. Oster, 147 Wn.2d 141, 146 (2002); see also Apprendi v. ew Jersey, 530 U.S. 466, 490 (2000); Ring v. Arizona, 536 U.S. 584 (2002). Chapter 8: Domestic Violence, Stalking, Crimes against Children and Prostitution Offenses 82

97 otherwise that even a mere label appearing anywhere in the conviction record will suffice. Counsel should do everything possible to negotiate for a non-dv ROC. While Tokatly did not consider the issue, a requirement of domestic violence counseling as part of the sentence and probation might well be considered evidence in the record of conviction that established a domestic relationship. 4. Defense Strategies to Avoid Triggering the Domestic Violence Ground of Deportation a. Negotiating a Plea to an Offense that is Not a Crime of Violence As perhaps the safest alternative, negotiate a plea to an offense that is not a Crime of Violence. This strategy involves confirmation from an immigration attorney or expert source that the crime is not a COV. One such example is RCW 9A , third degree assault, under the (f) negligence prong. Requiring domestic violence counseling as a condition of probation for conviction of an offense that is not a "crime of violence" will not make the conviction a deportable domestic violence offense. For a detailed analysis and alternatives, see Chapter Nine: Analysis of Crimes of Violence and Strategies for Avoiding COV Convictions. b. Crafting the Record of Conviction The Record of Conviction is of crucial importance in a noncitizen s case and must be crafted carefully. The guiding mantra in domestic violence cases is always to plead generally, being careful not to make admissions of fact which make it clear the crime was a case of domestic violence. It is advisable not to make admissions to the relationship between the defendant and victim, especially if victim and defendant have different last names. It is also highly desirable to craft pleas and conviction records that are silent as to victims ages if, factually, the victims were under 18. See Chapter Four: Carefully Crafting a Noncitizen s Plea for more on crafting the ROC. c. Negotiating Pleas to Crimes Against Property Instead of Persons The immigration statute is limited to crimes against persons. Where counsel can negotiate to a crime against property, such as malicious mischief under RCW 9A , there is a strong argument against deportability. d. Crafting a Record of Conviction for Charge of Harassment 216 Crafting a record of conviction for harassment that could avoid deportation would require negotiating a plea statement and amended charging document that only recite the language of the statutory 216 Harassment under RCW 9A (1). Chapter 8: Domestic Violence, Stalking, Crimes against Children and Prostitution Offenses 83

98 provision at issue and do not specify actions by the defendant that involved threats to use force. Negotiating a plea pursuant to the guidelines outlined in this treatise is an alternative worth pursuing. Practically speaking though, counsel must warn the defendant that immigration authorities may still consider the harassment to constitute a domestic violence offense for immigration purposes. Thus, the noncitizen could still end up in removal proceedings but, a carefully crafted ROC and plea preserves a strong argument to contest deportation (ideally with aid of immigration counsel). Probably the best option for a plea under the harassment statute is to RCW 9A (1)(a)(ii), for threats to damage property, with a sentence under 365 days. This should avoid deportation under the DV ground since it also allows the argument that the offense involved a property crime, not a crime against a person. 217 A sentence of less than 365 days avoids any possibility of an aggravated felony crime of violence charge. 218 B. Deportation for Violation of Protection/No Contact Orders A noncitizen is deportable if a civil or criminal court finds that he or she violated the portion of a [domestic violence] protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the persons for whom the order was issued. 219 The behavior that is the basis of the finding must have occurred on or after September 30, A court finding that the person violated a portion of a protective order without engaging in conduct that violate[d] the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued should not cause deportability. 221 Otherwise, convictions for both misdemeanor and felony violation of a no-contact order and findings of violations of civil protection orders will trigger this ground of deportation. This ground requires only a determination by a court of a violation not a conviction. If the noncitizen must avoid triggering this ground of deportation, a safer strategy is to plead to an alternative offense that will not trigger deportation. If this is not possible, counsel should attempt to craft a plea statement that either specifically states a violation that does not involve threats of violence, repeated harassment, or bodily injury. Or, the alternative is to plead generally such that the statement does not specify whether the conduct constituted any of this listed behavior. 217 Since harassment under RCW 9A (1)(a)(ii)can be fairly analogized to a threat to commit malicious mischief an offense known to not be a CIMT there is an additional argument that this subsection also may not be a CIMT, since a threat to do something not turpitudinous, should not itself be turpitudinous. 218 There are good arguments that a threat to cause physical damage to property does not require the use of force (e.g.: RCW 9A s definition does not require damage by force); but, with a sentence of under 365 days the issue does not arise for aggravated felony purposes. 219 See 8 USC 1227(a)(2)(E)(ii); INA 237 (a)(2)(e)(ii). 220 The date of enactment of IIRIRA. The statute is explicitly not retroactive to convictions before that date. 221 Although, as a practical matter, immigration authorities cannot be counted upon to analyze the statute this carefully. Thus, counsel should assume that convictions/findings for protection order and NCO violations are likely to result in the noncitizen ending up in removal proceedings. Chapter 8: Domestic Violence, Stalking, Crimes against Children and Prostitution Offenses 84

99 Note that violation of a DV protection or no contact order is not listed as a specific ground of inadmissibility. To make someone inadmissible (as opposed to deportable), the NCO violation would have to be independently considered a crime involving moral turpitude. C. Stalking as Ground of Deportation A conviction of stalking under RCW 9A will almost certainly trigger deportation under the stalking ground of deportation at 8 USC 1227(a)(2)(E)(i) regardless of the sentence imposed. The statute does not require a specific sentence to be imposed or that the offense constitutes a COV at 18 USC 16. At present, there is no published case law on what definition of stalking will be used in immigration proceedings to define this offense. However, note that the Board of Immigration Appeals has held that California s stalking statute, which prohibits similar conduct as the Washington statute, was found to be a crime of violence aggravated felony under 8 USC 1101(a)(43)(F) where a sentence of one year or more is imposed (regardless of time suspended). 222 Stalking is not a specific ground of inadmissibility, only deportability. However, stalking will also constitute a crime involving moral turpitude, which is a ground of inadmissibility. See Chapter Five on Crimes Involving Moral Turpitude. D. Child Abuse, Neglect, or Abandonment as Ground of Deportation A crime of child abuse, neglect or abandonment will cause deportability, regardless of sentence. 223 While there is no case law defining child abuse, for this purpose, counsel should assume that child endangerment and other statutes that might not be found to be crimes of violence could still trigger deportability under this ground. Under related case law, the courts should require that in order for a conviction to fall under the child abuse or child neglect provisions of the DV deportation ground, the victim s classification as a child or minor must be an actual element of the offense. Thus, most effective strategy to avoid this ground of deportation is to negotiate an alternative plea that does not have the victim s status as a minor or child as an element of the offense. For example, a defendant is charged with child molestation in the second or third degree, or rape in the third degree. Under all of those offenses, the victim is a minor. An alternative option that would avoid deportation under this ground would be to plead to a straight assault offense, such as third or fourth degree assault per (f) negligence prong. Adding the sexual motivation enhancement under RCW 9.94A.835 should not make the offense a crime of child abuse, a crime of violence, or a sexual abuse of a minor offense. However, it is wise to ensure that the alleged victim s age or minor status is not included in the record of conviction. 222 Matter of Malta, 23 I. & N. Dec. 656 (2004). 223 See 8 USC 1227(a)(2)(E)(ii); INA 237 (a)(2)(e)(ii). Chapter 8: Domestic Violence, Stalking, Crimes against Children and Prostitution Offenses 85

100 In negotiating alternative pleas, counsel must also be avoid any conviction that could also trigger other relevant grounds of deportation or inadmissibility, such as domestic violence offenses, crimes involving moral turpitude, and crimes of violence that are aggravated felonies. E. Prostitution as Ground of Deportation A noncitizen is inadmissible if she engages in prostitution. 224 While no conviction is required for this finding, prostitution is a crime involving moral turpitude. One or more convictions for prostitution will serve as evidence. Customers are not penalized under this ground. There are no decisions holding that a customer also commits a crime involving moral turpitude, but that is a possibility. A safer alternative plea would be to misdemeanor assault where the sentence imposed (regardless of time suspended) is 364 days or disorderly conduct. Convictions of some offenses involving running prostitution or other sex-related businesses are aggravated felonies. 225 A non-citizen is deportable who has been convicted of importing noncitizens for prostitution or any immoral purpose. 226 Noncitizens forced into prostitution (or victims of numerous other serious crimes) may be able to apply for temporary and ultimately permanent status if they cooperate with authorities in any investigation or prosecution USC 1182(a)(2)(D); INA 212 (a)(2)(d). 225 See 8 USC 1101(a)(43)(I), (K); INA 101(a)(43)(I), (K) USC 1227(a)(2)(D)(iv); INA 237 (a)(2)(d)(iv) USC 1101(a)(15)(T), (U); INA 101(a)(15)(T), (U). Chapter 8: Domestic Violence, Stalking, Crimes against Children and Prostitution Offenses 86

101 CHAPTER NINE Avoiding Convictions That Are Crimes of Violence A. Analysis of Crimes of Violence under Immigration Law Offenses deemed to be crimes of violence under 8 USC 16 will trigger two crime-related provisions under immigration law: Where it is a crime against a person (rather than a property offense and regardless of the sentence), it will fall under the domestic violence ground of deportation at 8 USC 1227(a)(2)(E)(i); Where there is a sentence of one year or more imposed (regardless of time suspended), it will be an aggravated felony under 8 USC 1101(a)(43)(F); INA 101(a)(43)(F). For immigration law purposes, a "crime of violence" is defined in 18 U.S.C. 16 as: An offense that has as an element of use, attempted use, or threatened use of physical force against the person or property of another, or 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. What constitutes a crime of violence (COV) under immigration law has been the subject of much recent immigration litigation in the circuit courts as well as the subject of a recent U.S. Supreme Court decision. 228 In analyzing crime-related immigration statutes, the immigration and federal courts engage in the categorical and modified categorical analysis as set forth in Taylor v. United States, 495 U.S. 575 (1990). Under the categorical analysis the court looks to the language of the statute not the underlying facts of the case to determine the elements of the particular offense and whether the minimum conduct required to violate the statute constitutes a COV (or some other crime-related removal ground). Where the statute is broad enough to include multiple offenses, some of which may be COVs and some not, the court is permitted to engage in the modified categorical analysis. This means the court will look to the record of conviction (ROC) to determine which specific 228 Much of this litigation has been in the context of the COV aggravated felony provision, and of sentence enhancements in illegal reentry prosecutions under 8 USC Both the DV deportation ground and the COV provision under the aggravated felony definition, at 8 USC 1101(a)(43)(F), dictate that a COV is determined by reference to the federal definition at 18 USC 16. The Supreme Court held that a Florida felony DUI conviction was not a COV. See Leocal v. Ashcroft, 125 S.Ct. 377 (2004). Chapter 9: Avoiding Convictions that Are Crimes of Violence 87

102 elements of the statute were involved in the conviction at issue. 229 See Chapter Four: Carefully Crafting a Noncitizen s Plea for more on categorical analysis and the ROC. In Leocal v. Ashcroft, 230 the Supreme Court held that in order for an offense to constitute a COV under either 16(a) or 16(b), the offense must involve something more than a negligent mens rea; that COV could not be committed accidentally, but rather involved some level of volitional behavior. However, the Court specifically declined to address whether offenses involving reckless mens rea would constitute COVs. In pre- Leocal cases, the Ninth Circuit has held that statutes penalizing reckless actions involving force would suffice, although their decisions have been conflicting and are now, in the wake of Leocal, open for reevaluation of this question. 231 Thus, RCW 9A s assault in the third degree (and attempted assault third) under the provisions involving a negligent mens rea (sections d & f) cannot constitute COVs for immigration purposes. 232 This will be true of any other offense involving a negligent mens rea or that is a strict liability offense, such as a DUI. However, offenses involving a reckless mens rea, where a sentence of one year or more is imposed (regardless of time suspended) are much more risky, including reckless driving and attempt to elude, because they are potentially crimes of violence. Equally important, the Leocal decision settled another controversy regarding COV by holding that the analysis of the criminal offense must focus on the risk that force will be used, not only the risk that injury or harm may result from the defendant s actions. In finding that an Arizona felony endangerment statute involving a reckless mens rea was not a COV, the Ninth Circuit, in its Hernandez-Castellanos decision, stated: For a crime based on recklessness to be a crime of violence under 16(b), the crime must require recklessness as to, or conscious disregard of, a risk that physical force will be used against another, not merely the risk that another might be injured. In a federal criminal law case, the Ninth Circuit held that a simple battery does not qualify as a domestic violence offense unless the record of conviction shows that the 229 The ROC constitutes only the following documents: information in the criminal charge, where there is evidence that the person was convicted of the specific charge; judgment of conviction; transcript of plea and sentence hearing; written plea agreement; and certain jury instructions in jury trials. It does not include the probation or pre-sentence report, police reports, defendant's or others' statements outside of the judgment and sentence hearings, a court docket summary, or other evidence extrinsic to the official hearing. See U.S. v. Rivera-Sanchez, 247 F.3d 905, 908 (2001); Chang v. I S, 307 F.3d 1185 (9 th Cir, 2002); Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989). Charging documents are only to be considered in conjunction with the plea agreement and, alone, are never sufficient to establish the conviction and/requisite elements of a defendant s guilt. U.S. v. Corona Sanchez, 291 F.3d 1201, 1211 (9 th Cir. 2002). See Chapter Four, Carefully Crafting a oncitizen s Plea for additional analysis. 230 Leocal v. Ashcroft, 125 S.Ct. 377 (2004). 231 See Hernandez-Castellanos, 287 F.3d 876 (9 th Cir); Park v. I S, 252 F.3d 1018 (9 th Cir. 2001). 232 Note that where the requisite weapon under RCW 9A (d) is identified in the record of conviction as involving a firearm, it will trigger deportation under the separate firearms ground at 8 USC 1227(a)(2)(C); INA 237(a)(2)(C). Chapter 9: Avoiding Convictions that Are Crimes of Violence 88

103 battery involved more than mere offensive touching. 233 Thus there is a strong argument, although not a guarantee, that in the Ninth Circuit, simple assault under RCW 9A and similar municipal assault statutes even where the offense involved domestic violence is not a basis for deportability under the domestic violence ground unless the official record of conviction shows that the conduct went beyond mere offensive touching. Similarly, simple assault cannot be an aggravated felony under the crime of violence prong even where the sentence imposed is 365 days. 234 (On a cautionary note, however, it is still imperative to get a 364-day sentence since immigration authorities frequently do not recognize this position.) The Belless case did not involve the domestic violence deportation ground (8 USC 1227(a)(2)(E)(i)), but a similarly worded federal sentence enhancement based on prior conviction of a "domestic violence offense" (18 USC 921(a)(33)(A)(ii)). The prior offense had to include as an element the "use or attempted use of physical force, or the threatened use of a deadly weapon." In Belless, the issue was whether the Wyoming battery conviction could constitute such a prior offense even though it included mere rude or offensive touching. As an example, the Court cited Nixon's poking Khruschev in the chest with his finger during their famous Kitchen Debate. The Court held that the physical force described in the federal statute "is not de minimus." Therefore the battery statute was divisible for this purpose, encompassing a broader range of behavior than the federal statute. Having found that the record of conviction did not adequately demonstrate the degree of force used, the Court found that the conviction for simple battery, although the victim was a spouse, was not a domestic violence offense. The definition in the statute at issue in Belless is close to the definition used under the domestic violence deportation ground for a misdemeanor crime of violence under 18 USC 16(a), which is an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The Ninth Circuit has held in other contexts that the force necessary to constitute a crime of violence [under 18 USC 16] must actually be violent in nature. 235 As the Belless Court noted, Any touching constitutes 'physical force' in the sense of Newtonian mechanics. Mass is accelerated, and atoms are displaced. Our purpose... though, is to assign criminal responsibility, not to do physics. 236 This analysis, importantly, applies to fourth degree assault under RCW 9A since Washington courts have held that it encompasses intentional unlawful touching. 237 Additionally, the Ninth Circuit specifically articulated, in the similar (but not identical) 233 U.S. v. Belless, 338 F.3d 1063 (9 th Cir. 2003). 234 Both the domestic violence deportation ground and the aggravated felony crime of violence provision reference the federal definition for a crime of violence at 18 USC Ye v. I S, 214 F.3d 1128 (9th Cir. 2000). 236 See also Flores v. Ashcroft, 350 F.3d 666 (9 th Cir. 2003) (battery against a spouse is not a deportable domestic violence conviction where the statute can be violated by mere offensive touching). 237 See State v. Davis, 60 Wash. App. 813; 820; 808 P.2d 167 (1991). Assault in Washington generally can also be committed by merely intending to create apprehension of harm. State v. Byrd, 125 Wash.2d 707, 712 (1995) (en banc). Chapter 9: Avoiding Convictions that Are Crimes of Violence 89

104 context of COV s under the U.S. Sentencing Guidelines, that third degree assault under RCW 9A and fourth degree assault under RCW 9A cannot constitute COVs under the categorical approach. There would need to be further proof, by employing a modified categorical approach, that the ROC evinces a risk of a volitional use of violent force. 238 B. Avoiding a Crime of Violence (COV) Offense 1. Obtain a Sentence of Less than One Year in Non-Domestic Violence Cases The best way to avoid an offense triggering the aggravated felony COV provision is to ensure that there is a sentence imposed of less than one year (365 days), regardless of time suspended. Unlike the domestic violence (DV) deportation ground, the aggravated felony COV provision will only apply to a noncitizen where a sentence of one year or more is imposed. For immigration purposes the sentence imposed is related to the specific count pleaded. The sentences will not be aggregated for purposes of deportation. See Chapter Three: Sentencing Strategies for additional information on crafting a sentence. Note that this strategy is not relevant to (and will not work for) the COV issue under the DV ground of deportation, which has no sentence requirement. 2. Pleas to Assault in the Third Degree 239 Under both U.S. Supreme Court and Ninth Circuit case law discussed above, a conviction for assault third under the (f) negligence prong will not constitute a COV under immigration law. This analysis also applies to attempted assault in the third degree. Third degree assault is also not a CIMT under immigration law, so a conviction for this offense will not trigger any statutory grounds of deportation, inadmissibility or aggravated felony provisions. 3. Pleas to Assault in the Fourth Degree 240 In Washington State case law, 241 fourth degree assault includes a number of possible ways to commit the offense, some of which would constitute a COV under immigration law and some of which would not. There are two options to avoid a COV when pleading to assault in the 4 th degree. The best option is to ensure that the charging document only recites the language of the statute and then to craft the plea statement to say only that the defendant engaged in conduct that amounted to offensive touching. The ideal language for such a plea statement would read committed assault by offensive touching without the use or the threat of the use of force. The second option is to plead generally by ensuring 238 U.S. v. Pimentel-Flores, 339 F.3d 959, 969 (9 th Cir. 2003). 239 RCW 9A assault in the third degree pursuant to the (f) provision. 240 RCW 9A assault in the fourth degree. 241 See State v. Davis, supra n Chapter 9: Avoiding Convictions that Are Crimes of Violence 90

105 that the plea document, like the charging papers, simply recites the language of the statute and does not reference any conduct that constitutes the use of force. 4. Plea to Subsections that Do Not Involve the Use or Threat of Force Carefully craft a plea to a provision of a multi-pronged statute that does not involve the use/threat of use of force. This is the least preferable of the alternatives listed here and above. Where a statute has numerous prongs, some of which may involve the use of force and some which may not, counsel should seek a plea to a prong that does not, or at least could be construed as not involving the use of force. For example, harassment under RCW 9A (1)(a) has four separate prongs, some of which do not categorically require the use of force. Counsel should negotiate a plea to one of these specific prongs and ensure that the charging document and the defendant s plea recite only the language of the statute. Since the offense can be committed both in ways that do and do not involve the use of force, under the categorical analysis used in immigration proceedings, the immigration authorities cannot meet their burden to show that this conviction involved the requisite use of force. 242 See Section 5 below on Harassment. See generally Chapter Four: Carefully Crafting a Noncitizen s Plea. 5. Charges of Harassment 243 Negotiating a plea to harassment in the manner proposed here and above is an alternative that should avoid it being a COV. But practically speaking, counsel must warn the defendant that immigration authorities may still consider this offense to constitute a COV offense for immigration purposes. Thus, the noncitizen could still end up in removal proceedings but would have a strong argument to contest deportation (with counsel). Crafting a ROC for harassment that could avoid deportation would require negotiating a plea statement and amended charging document that only recite the language of the statutory provision at issue and do not specify actions by the defendant that involved threats to use force. Provision 9A (1)(1)(ii), of the harassment statute, penalizing threats to to cause physical damage to the property of a person other than that actor, may be the best option for a plea to avoid deportation for a DV offense, since it also allows the argument that the offense involved a property crime, and not a crime against a person. 244 Harassment subsection 9A (1)(iii) penalizes knowingly threatening, to subject the person threatened or any other person to physical confinement or restraint. Counsel should negotiate a plea to this specific prong and ensure that the charging 242 See infra, n. 245: restraint can be by deception. 243 RCW 9A (1). 244 INA 237(a)(2)(E)(i); 8 USC 1227(a)(2)(E)(i); a crime of violence must be committed against a person, protected by DV laws. Chapter 9: Avoiding Convictions that Are Crimes of Violence 91

106 document and the defendant s plea recite only the language of the statute. Since this offense can be committed both in ways that do and do not involve the use of force, under the categorical analysis used in immigration proceedings, the immigration authorities cannot meet their burden to show that this conviction involved the requisite use of force. 245 For additional details on how to craft the plea & ROC, see Chapter Four: Carefully Crafting a Noncitizen s Plea. 245 E.g., the definition of restraint used at RCW 9A (1)(a) includes restriction by deception. Chapter 9: Avoiding Convictions that Are Crimes of Violence 92

107 A. Burglary CHAPTER TEN Burglary, Theft and Fraud Offenses A burglary conviction can be either an aggravated felony or a crime involving moral turpitude (CIMT) but in both cases, a carefully crafted record of conviction may permit a defense. Avoiding a one year sentence is by far the most important way to avoid an aggravated felony. Avoiding specifying the intended offense in the ROC (or, if possible specifying one that is clearly not a CIMT, like malicious mischief) is the most important way to preserve a defense against a CIMT. 1. Burglary as an Aggravated Felony A Washington burglary conviction with a one-year sentence imposed can potentially qualify as an aggravated felony as a burglary, as a crime of violence, or, if it involves intent to commit theft, as an attempted theft offense. 246 With careful pleading, counsel may be able to avoid immigration penalties for aggravated felony. Burglary is not an aggravated felony unless a one-year sentence has been imposed. A sentence of 364 days or less avoids an aggravated felony, and avoids the necessity for using the following analysis. For suggestions on how to avoid a one-year sentence even in a serious case, see Chapter Three on Sentencing Strategies. If a one-year sentence is imposed, a conviction under the RCW statutes for burglary in the first degree, burglary in the second degree and residential burglary will all constitute aggravated felonies under the burglary provision of that definition. The generic immigration law definition of burglary for this purpose is an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. 247 If there is absolutely no alternative to a one-year sentence for residential or second degree burglary 248, then you can still try to control the record of conviction. Under Washington law a dwelling is defined as a building or a structure, and a building can include a fenced area, a railway car, or cargo container. 249 These are outside the definition of a building for the purpose of the 246 See 8 USC 1101(a)(43)(F), (G); INA 101 (a)(43)(f),(g). 8 USC 1101(a)(43)(U); INA 101 (a)(43)(u) makes attempt or conspiracy to commit an aggravated felony also an aggravated felony. 247 Taylor v. United States, 494 U.S. 575 (1990). 248 RCW 9A RCW 9A (5). Chapter 10: Burglary, Theft and Fraud Offenses 93

108 generic federal definition of burglary. 250 Specifying burglary of a fenced area or leaving the record of conviction opaque will preserve a defense against the burglary conviction being an aggravated felony. Vehicle prowl in the second degree, under RCW 9A does not come within this definition of burglary and thus is not an aggravated felony as a burglary offense. Neither is it a crime of violence. 251 However, a conviction under RCW 9A might be held an aggravated felony as attempted theft offense where a sentence of 365 days is imposed (regardless of time suspended) and the record of conviction establishes that the intended crime to be committed was a theft offense. To prevent this, counsel should create a record of conviction that either does not list the crime intended to be committed or specifies that the crime is something other than a theft offense (or other than other than any CIMT offense; see next section, below). 2. Burglary as a Crime Involving Moral Turpitude Burglary should be treated as a crime involving moral turpitude ( CIMT ) only if the intended, underlying offense involved moral turpitude. Entry with intent to commit larceny is a CIMT, while entry with intent to commit an undesignated offense ( a felony ) or an offense such as simple assault or malicious mischief that does not involve moral turpitude is not. For additional analysis on CIMT and their specific immigration consequences, see Chapter Five: Crimes Involving Moral Turpitude. B. Theft and Stolen Property Offenses 1. Theft as Aggravated Felony The immigration statute s theft-related aggravated felony provision designates as one type of aggravated felony any offense that is a "theft offense (including receipt of stolen property)." 252 The generic definition of theft offense is: A taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent. 253 Washington s theft statutes at RCW 9A are broader than the above definition. They include theft of services. Thus, where it is possible that a theft convictions was for theft of services, because it does not involve a taking of 250 United States v. Wenner, 351 F3d 969, 972 (9th Cir. 2003). 251 Ye v. I S, 214 F.3d 1128 (9th Cir. 2000) USC 1101(a)(43)(G); INA 101 (a)(43,(g). 253 United States v. Corona-Sanchez, 291 F.3d 1201 (9 th Cir. 2002)(en banc); Hernandez-Mancilla v. I S, 246 F.3d 1002, 1009 (7th Cir. 2001); United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001). Chapter 10: Burglary, Theft and Fraud Offenses 94

109 property, it should not be considered an aggravated felony theft offense. 254 Therefore, where defense counsel can negotiate for a record of conviction that either specifically states that the offense was for theft of service, or keeps vague the distinction between theft of property and theft of services, the offense is not an aggravated felony as theft. Simply using the language of the statute in the charging document, plea statement and the judgment and sentence will work. For more details on how to do this and why see Chapter Four: Carefully Crafting a Noncitizen s Plea. Unlike the crime of moral turpitude definition of theft, the aggravated felony definition of theft includes a permanent or temporary taking. Thus, RCW 9A taking a motor vehicle without permission with a one-year sentence imposed is an aggravated felony. One-year sentence must be imposed. Theft is not an aggravated felony if a sentence of 364 days or less is imposed. 8 USC 1101(a)(43)(G). But even a misdemeanor theft with a one-year sentence imposed will be an aggravated felony. See Chapter Three: Sentencing Strategies. Theft by Fraud. A conviction of theft that involves fraud where the loss to the victim was $10,000 or more might be charged as an aggravated felony even if a sentence of a year or more was not imposed. See following section for more information. 2. Theft as a Crime Involving Moral Turpitude Theft with intent to permanently deprive the owner is a crime involving moral turpitude (CIMT), while temporary intent such as taking a motor vehicle without permission is not. A single conviction of a CIMT committed within five years of last admission will make a noncitizen deportable only if the offense has a maximum possible sentence of a year or more. 255 Conviction for petty theft or attempted grand theft reduced to a misdemeanor (both with a six-month maximum sentence) as opposed to misdemeanor grand theft (with a one-year maximum) will avoid deportability. A single conviction of a CIMT will make a noncitizen inadmissible for moral turpitude. Under the petty offense exception, however, the noncitizen is not inadmissible if (a) she has committed only one CIMT in her life and (b) the offense has a maximum 254 Not only is the theft of labor [or services] not a part of the [modern generic] definition, but it generally has not been included within the scope of ordinary theft statutes because one's labor is not one's property. MPC 223.7, CIMT. 1. It may be that many states have now enacted separate theft-of services provisions, but that fact does not mean that most states consider labor or services to be property. Corona-Sanchez at USC 1227(a)(2)(A); INA 237(a)(2)(A). Chapter 10: Burglary, Theft and Fraud Offenses 95

110 sentence of a year and an actual sentence of six months or less was imposed (including suspended time) Stolen Property Offenses Stolen property offenses as aggravated felonies. The aggravated felony definition includes a theft offense (including receipt of stolen property) for which the term of imprisonment imposed (regardless of suspension of such imprisonment) is at least one year. 257 To avoid aggravated felony designation, counsel should ensure that the sentence imposed is less than 365 days. Stolen property crimes under RCW 9A are very dangerous to noncitizens, as a conviction under these offenses will constitute a crime of moral turpitude and will also constitute an aggravated felony if the sentence imposed is 365 days or more, regardless of time suspended. Defendants charged under RCW 9A will be subject to the danger of an aggravated felony conviction, if sentenced to a year or more since the Washington state definition of stolen property at RCW 9A clearly states that knowledge of the fact that the property is stolen is an element of the crime. 258 Washington statutes penalize the possession of stolen property (PSP), which is facially distinct from the language of the aggravated felony definition, which specifically identifies receipt of stolen property. However, the Board of Immigration Appeals found that conviction of attempted possession of stolen property is an aggravated felony as theft and receipt of stolen property. 259 While the Ninth Circuit has not ruled on this issue to date, for practical purposes defense counsel must assume that the government will treat all PSP offenses under Washington State law as aggravated felonies, where a sentence of one year or more has been imposed. Since Washington state s definition of PSP includes receipt of a stolen item, 260 it is likely to be deemed to fall within the aggravated felony definition, even if the distinction might otherwise be upheld. 4. Stolen Property Offenses as Crimes of Moral Turpitude The Ninth Circuit has specifically held that Washington State s crime of possession of stolen property is a CIMT offense under immigration law. 261 Although an USC 1182(a)(2)(A)(ii)(II), INA 212(a)(2)(A))ii)(II), defining the petty offense exception." USC 1101(a)(43)(G); INA 101(a)(43)(G). 258 Cf., the Arizona offense treated in Huerta-Guevara v. Aschroft, 321 F.3d 883 (9 th Cir. 2003) ( [W]e cannot tell from the mere fact of Huerta's conviction for possession of a stolen vehicle that she knew the vehicle was stolen or that the vehicle was taken or control was exercised with the requisite criminal intent. ) Since that PSP statute required neither knowledge that the property was stolen, nor intent to deprive the owner, it was not an aggravated felony. 259 Matter of Bahta, 22 I. & N. Dec (BIA 2000). See dissent arguing that because possession of stolen property is a different offense from receipt of stolen property, the former should not be held an aggravated felony. 260 RCW 9A (1). 261 Kim v. I S, 1994 U.S. App. LEXIS (9 th Cir. May 4, 1994). Chapter 10: Burglary, Theft and Fraud Offenses 96

111 unpublished decision, this case provides strong evidence that the courts will view this crime as a CIMT. Additionally, the Board of Immigration Appeals has repeatedly found PSP to be a CIMT. 262 For additional analysis see, supra, the section on theft offences; Chapter 10, Section B. C. Fraud Offenses Convictions of fraud or theft always pose some danger to immigration status. With some technical exceptions, conviction of any offense that includes fraud or theft as an element is a "crime involving moral turpitude." 263 An even more serious threat, however, is that the conviction also may constitute an "aggravated felony," which carries the worst possible immigration consequences. A conviction for an offense involving fraud where the loss to the victim is more than $10,000 is an aggravated felony, as is a theft conviction if a sentence of a year or more was imposed Fraud Resulting in Loss to Victim of $10,000 or More An offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 is an aggravated felony. 265 A 2002 case, Chang v. INS 266 provides a good blueprint, to avoid having a federal conviction for fraud become an aggravated felony, through loss to the victim of $10,000, even when the amount ordered to be paid in restitution is more than $10,000. In Chang v. INS, Mr. Chang presented a written plea agreement from his prior single conviction for bank fraud under 18 USC It showed that he and the government had stipulated that the loss to the victim in the count of conviction was $ Elsewhere in the plea agreement he agreed to pay total restitution of over $30,000 for the entire scheme. His sentence agreement also reflected the $30,000 restitution amount. While the INS charged that the restitution amount was the loss to the victim, the Ninth Circuit held that under a categorical analysis the INS had to take the plea agreement as the agency finds it. 267 The detailed information in the plea agreement trumped the restitution amount ordered, and the conviction was held not to be an aggravated felony. Under Chang it is not enough to plead guilty to fraud of less than $10,000 the loss to the victim must also be specified in the plea statement as less than $10,000. Since Chang, Washington state defenders have been counseled that they could avoid an aggravated felony conviction for their noncitizen client by specifying in a written 262 See Matter of Salvail, 17 I. & N. Dec. 19 (BIA 1979) and cases cited therein. 263 See discussion in Chapter Five, Crimes Involving Moral Turpitude. 264 See 8 USC 1101(a)(43)(M)(i) ($10,000 fraud loss) and 1101(a)(43)(G) (theft) and Note: Aggravated Felonies and Note: Theft and Fraud Offenses at USC 1101(a)(43)(M)(i). INA 101(a)(43)(M)(i). 266 Chang v. I S, 307 F.3d 1185 (9 th Cir. 2002). 267 Chang v. I S, 307 F.3d 1185, 1190 (9 th Cir. 2002). Chapter 10: Burglary, Theft and Fraud Offenses 97

112 plea agreement that the loss to the victim from the offense of conviction was less than $10,000, even if a total restitution of more than $10,000 was ordered. The Ninth Circuit recently added a new wrinkle by holding a California welfare fraud conviction to be an aggravated felony, in Ferreira v. Ashcroft. 268 The plea agreement did not specify a loss of less than $10,000 to the victim, and restitution of $23,000 was ordered. The Ninth Circuit distinguished this case from Chang, and found it was an aggravated felony, for two reasons. First, the defendant lacked the Chang statement in the plea agreement that the loss to the victim was less than $10,000. Second, and of greater concern, the Court noted, California law provides that a restitution order in favor of a government agency shall be calculated based on the actual loss to the agency. The Court cited California law 269 that a restitution order must equal the loss to the victim. 270 Washington state s restitution statutes and case law is distinguishable from California s, so the Ferreira analysis and holding should not apply. Also, Ferreira lacked the all-important Chang-type explicit plea statement on loss to the victim. However, counsel must take care to carefully craft plea agreements following the advice given here. Noncitizen clients should be told that immigration authorities could still try to use Ferreira to justify starting removal proceedings. In that case the noncitizen would have good legal arguments to contest deportation, but would nonetheless be fighting removal charged as an aggravated felon (and, thus, possibly subject to mandatory detention until the case was over). Under Washington state restitution statutes 271 the general rule is that an order of restitution must be based on a causal relationship between the offense charged and proved by the state and the loss or damage incurred by the victim of the crime. Restitution need not be proven with specific accuracy but by evidence sufficiently accurate to afford a reasonable basis for estimating the loss. 272 It is possible that the Ninth Circuit could find the restitution process sufficiently similar to the California statutes analyzed in Ferreira. However, RCW 9.94A.753 differs significantly from CPC (f), in that it imposes a specific statutory restitution ceiling higher than the loss amount: [t]he amount of restitution shall not exceed double the amount of the offender's gain or the victim's loss from the commission of the crime. 273 Washington case law clearly supports the proposition that restitution can exceed the 268 Ferreira v. Ashcroft, 390 F.3d 1091, (9 th Cir. 2004). 269 California Penal Code (f) (providing that a victim of crime shall receive restitution directly from a defendant "in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court") and People v. Crow, 6 Cal.4th 952, , 26 Cal.Rptr.2d 1, 864 P.2d 80 (1993). 270 Ferreira, 390 F.3d 1091, ). 271 See RCW 9.94A.753, RCW (2) and RCW (2). 272 See State v. Hughes, 110 P.3d 192 (Wash. 2005); State v. Biggness, 103 Wn. App (2000). 273 RCW 9.94A.753(3). See also RCW 9A (1) where restitution as an alternative to a fine may not exceed double the amount of the defendant's gain or victim's loss from the commission of a crime. Chapter 10: Burglary, Theft and Fraud Offenses 98

113 actual loss, 274 and that restitution in Washington is a form of punishment with other goals than just compensating victims. 275 Washington law also allows a court to order restitution for uncharged crimes when a defendant pleads guilty to fewer or lesser crimes and agrees to pay restitution for uncharged crimes that the prosecutor agrees not to pursue. 276 This provides a key for defenders to negotiate plea agreements that at least arguably will not be aggravated felonies per the fraud provision. To be sure of avoiding an aggravated felony conviction, counsel should get a Chang written plea agreement to plead guilty to a count (say, one month of welfare) in which the loss to the victim is set at $10,000 or less. Where the plea agreement is accompanied by an agreed restitution order for a larger amount that exceeds $10,000, counsel could also include a statement in the plea that the stipulated restitution is based on an agreement that the restitution figure does not constitute a specific determination of the actual loss to the victim. This comports with Chang and sets up a basis to distinguish Ferreira, if necessary. Two additional suggestions for trying to avoid this provision: If a plea can be put off until the person pays back enough of the money so that the plea agreement can reflect a loss to the victim and restitution payment of under $10,000, the conviction is not an aggravated felony as fraud. If a civil suit had been brought, an order could reflect that restitution would be paid according to the civil suit settlement. 2. Fraud Constituting Aggravated Felony Theft with Sentence of One Year or More Immigration authorities are likely to charge that many fraud crimes also constitute theft offenses and, hence, are aggravated felonies under that separate provision if a sentence of a year or more is imposed, even if the loss to the victim did not equal $10,000. Immigration defense counsel can argue that fraud is not theft and does not fit within the definition of an aggravated felony offense because the 274 State v. Tindal, 50 Wn. App. 401, 748 P.2d 695 (1988). (Imposition of restitution in an amount greater than the maximum fine provided is clearly permissible, up to twice the amount of the victim's loss); see also In re Gardner, 94 Wn.2d 504, 617 P.2d 1001 (1980): [T]he compensatory function of restitution under the sentencing reform act is secondary [U]nder the sentencing reform act, restitution is part of an offender's sentence and is primarily punitive in nature. See RCW 9.94A.010; RCW 9.94A.145(10); State v. Young, 63 Wash. App. 324, 332 n.4, 818 P.2d 1375 (1991). State v. Edelman, 97 Wn. App. 161, 166 (Wash. Ct. App., 1999). 275 (Restitution itself carries out purposes of the SRA including those of punishing and of protecting the public by making crimes unprofitable) State v. elson, 53 Wn.App 128, , (1988); (Superseded by statute on issue of civil remedies, as stated in State v. Wiens, 77 Wn. App. 651 (Wash. Ct. App., 1995). 276 State v. Biggness, supra n. 272, citing State v. Raleigh, 50 Wn. App. 248, 252, 748 P.2d 267 (1988). Chapter 10: Burglary, Theft and Fraud Offenses 99

114 elements are distinct. 277 Still, criminal defense counsel should avoid a year s sentence imposed on any single count of an offense that can be construed as theft. D. Pleas and Strategies for Fraud, Theft or Burglary 1. Criminal Trespass in the First or Second Degree 278 This offense is not a crime of violence or a crime involving moral turpitude under the immigration statutes. It will not trigger any provisions under the grounds of deportation, inadmissibility or the aggravated felony definition. If defendant is convicted under this statute, as a cautionary measure (given the dynamic state of immigration law) it is prudent to ensure a sentence of 364 days or less is imposed. 2. Malicious Mischief 279 The Ninth Circuit has specifically held that malicious mischief under the RCW is not a crime involving moral turpitude. 280 It is possible that malicious mischief offenses could constitute crimes of violence under the federal definition of a crime of violence. 281 If so, they would then constitute aggravated felonies under 8 USC 1101(a)(43)(F), when the sentence imposed (regardless of time suspended) was 365 days or more. So to be safe, counsel should ensure that the sentence imposed is less than 365 days. If the case involves domestic violence, malicious mischief should be an immigration-safe alternative since, even if it were a COV, it is a crime against property. The domestic violence ground of deportation is limited to crimes against persons Possession of Burglary Tools See Soliman v. Gonzales, (4th Circuit 2005) 2005 U.S.App. LEXIS for a case arguing that the elements of the two aggravated felony grounds, theft offense v. fraud, are distinct. The case is partly based on a statutory distinction between credit card theft and credit card fraud in Virginia state law. 278 RCW 9A & RCW 9A Rodriguez-Herrera v. I S, 52 F.3d 238 (9th Cir. 1995) USC USC 1227(a)(2)(E)(i); INA 237(a)(2)(E)(i). 283 RCW 9A Chapter 10: Burglary, Theft and Fraud Offenses 100

115 This offense is not likely to trigger any provisions under the grounds of deportation, inadmissibility or the aggravated felony definition. However, criminal trespass and malicious mischief offense are safer alternatives. If defendant is convicted under this statute, as a cautionary measure (given the dynamic state of immigration law) it is prudent to ensure a sentence of 364 days or less is imposed. For more on sentencing, please see Chapter Three: Sentencing Strategies. Chapter 10: Burglary, Theft and Fraud Offenses 101

116 CHAPTER ELEVEN Driving Offenses A. Immigration Law and Driving Offenses Generally Driving and alcohol-related offenses are not a category of offenses specifically listed in the crime-related provisions of the Immigration & Nationality Act. However, these types of convictions can trigger deportation, inadmissibility or aggravated felony provisions where the statute of conviction constitutes either a crime involving moral turpitude (CIMT) or a crime of violence (COV) under immigration law. Whether a specific driving or alcohol-related offense constitutes either a CIMT or a COV under the relevant immigration provisions will depend upon the language of the statute at issue, not necessarily the conduct of the defendant. In order to ensure that a conviction for a particular driving or alcohol-related offense does not render a noncitizen defendant deportable, inadmissible or an aggravated felon under immigration law, counsel must ensure that the offense does not constitute either a CIMT or a COV. For an analysis of what constitutes a crime of moral turpitude under immigration law, see Chapter Five: Crimes Involving Moral Turpitude. For an analysis of what constitutes a crime of violence under the aggravated felony definition, see Chapter Nine: Crimes of Violence. Given the plethora of driving offenses under Title 46, it is not possible to analyze each offense specifically here. However, counsel should consult WDA s website at under the Immigration Project link. A specific analysis of each driving offense and safer alternative strategies are provided there. B. Safer Pleas and Strategies for Driving Offenses The following list of offenses provides safer alternatives for noncitizen defendants accused of driving offenses that are crimes involving moral turpitude or crimes of violence. 1. Driving Under the Influence 284 Pursuant to the U.S. Supreme Court s decision in Leocal v. Ashcroft, DUI convictions under this statute will not trigger deportation or inadmissibility under immigration law. Counsel must be very careful, however, to note that reckless driving is not an immigration safe alternative (see below). 284 RCW Chapter 11: Driving Offenses 102

117 2. Malicious Mischief 285 The best (most immigration safe ) alternative to the problematic category of driving offenses that are crimes involving moral turpitude is to negotiate a plea to malicious mischief, or attempted malicious mischief, in any degree under RCW 9A Given the significant possibility that conduct such as reckless driving would (or did) cause damage to property, one argument is to assert that the defendant s conduct could constitute an attempt to diminish the value of property as contemplated in the definition of malicious mischief at RCW 9A It is important to remember to request a sentence of 364 days imposed (regardless of time suspended) if the plea is to malicious mischief in the third degree so that it does not become an aggravated felony. 3. Disorderly Conduct 286 Disorderly conduct is neither a CIMT nor a COV under immigration law. It does not trigger grounds of deportation, inadmissibility or any provisions of the aggravated felony definition. 4. Vehicular Assault per DUI prong 287 Vehicular Assault under the strictly DUI subsection is neither a CIMT nor a COV under immigration law. It has no greater level of intent than a DUI. It does not trigger grounds of deportation, inadmissibility or any provisions of the aggravated felony definition. Note that the other two provisions of this statute, (a) in a reckless manner; and (c) with disregard for the safety of others, are not safe alternatives for noncitizens as they are crimes involving moral turpitude. Where a sentence of one year or more is imposed, RCW (a) is highly likely to constitute an aggravated felony crime of violence; and RCW (c) is in danger of being deemed so. 5. Reckless Driving 288 Caution: Reckless driving is not a safe alternative for noncitizens. Under immigration law there are arguments to say that reckless driving is not a CIMT. However, the law is not well settled here. Furthermore, a reckless driving conviction with a 365-day sentence imposed may very likely constitute a crime of violence under the aggravated felony provisions. The question remains unresolved in the federal courts. Thus, where possible, defense counsel must attempt to negotiate a plea to another offense listed herein. If a defendant must plead to reckless driving, it is imperative that counsel obtain a sentence of less than 365 days. For immigration purposes, a DUI conviction is preferable to a reckless driving offense. 285 RCW 9A RCW 9A RCW (b). 288 RCW Chapter 11: Driving Offenses 103

118 6. Reckless Endangerment 289 Caution: Between the attempt to elude, reckless driving, and reckless endangerment, reckless endangerment with a sentence of less than 365 days, is the best of the three if malicious mischief, DUI, and disorderly conduct are not available options. Under present case law, reckless endangerment it is not an entirely immigration safe alternative. Defense counsel must exercise caution before choosing this as an alternative plea offense. The Ninth Circuit (and the immigration courts) will consider the reckless endangerment statute subject to the modified categorical analysis. Thus, structuring the plea is critical here. See Chapter Four: Carefully Crafting Alternative Pleas for Noncitizens. 289 RCW 9A Chapter 11: Driving Offenses 104

119 CHAPTER TWELVE Alternate Pleas with Less Severe Immigration Consequences A. Introduction This chapter offers a brief explanation of proposed safer offenses in addition to those already mentioned in Chapter 11. Some of these analyses have been affirmed in published opinions, while others are speculations of the authors as to how courts are likely to rule. A plea to the offenses below will give immigrant defendants a greater chance to preserve or obtain lawful status in the United States. However, almost no criminal conviction is entirely safe from immigration consequences. Caution: It is always important to remember that any conviction will be considered a negative discretionary factor that may warrant denial of any application for immigration benefits, including citizenship, permanent residence (i.e., greencard), or a work permit. Some convictions, while not triggering removal/deportation, can create problems for lawful readmission to the U.S. after departure. It is strongly advised for defendants with any criminal convictions to consult with competent immigration counsel prior to applying for any immigration benefits or leaving the United States. Some of the offenses discussed below are safer alternatives only because they are divisible statutes. A divisible statute is one that includes offenses that carry adverse immigration consequences as well as those that do not. Faced with a divisible statute, immigration authorities will look only to the record of conviction (the charging papers, plea colloquy or judgment, and sentence) to determine which offense was actually the subject of the conviction. If the record of conviction is vague enough so that it is possible that the noncitizen was convicted under a part of the statute without immigration consequences, the immigration consequences do not apply and the noncitizen wins. For the defendant to gain an advantage from a divisible statute, the defense counsel must carefully control what information appears in the record of conviction. For further discussion see Chapter Four: Carefully Crafting a Noncitizen s Plea. B. Rendering Criminal Assistance as a Substitute Plea Washington state s version of the offense of accessory after the fact, rendering criminal assistance 290 is useful because it does not take on the character of the principal s offense. A conviction of rendering will not be held to be a conviction relating to violence, controlled substances, firearms, domestic violence, fraud, etc. For example, 290 RCW 9A Chapter 12: Alternative Pleas with Less Severe Immigration Consequences 105

120 the Ninth Circuit held that accessory after the fact was not a crime of violence under 18 USC 16, where the principal offense was murder for hire. 291 The Board of Immigration Appeals (BIA, the national administrative appeals board for deportation cases) held that accessory after a drug trafficking offense is not a deportable drug conviction or an aggravated felony drug conviction. 292 Through hard bargaining, some noncitizen defendants who might have been convicted as principals have pled to rendering criminal assistance in order to avoid becoming deportable. Rendering criminal assistance carries some significant immigration consequences: The BIA held that accessory after the fact with a one-year sentence imposed is an aggravated felony as obstruction of justice. Matter of Batista-Hernandez, 21 I&N 955 (BIA 1997). It is possible that the Ninth Circuit someday will overturn this decision, which is flawed. See Batista-Hernandez dissents and Matter of Espinoza, 22 I&N 889 (BIA 1999) (subsequent BIA decision holding that the similar offense misprision of felony is not obstruction of justice). The BIA held, in an older, pre-batista-hernandez decision, which also could be challenged, that accessory after the fact is a crime involving moral turpitude under an obstruction of justice theory. Matter of Sanchez-Marin, 11 I&N 264 (BIA 1965). As stated above, accessory after the fact/rendering criminal assistance to a drug trafficking offense is not a conviction relating to controlled substances and will not cause deportability under that ground or, absent a one-year sentence imposed, be an aggravated felony. But the government may still argue that the person is inadmissible because the conviction gives them reason to believe the noncitizen assisted a trafficker in the enterprise. See 8 USC 1182(a)(2)(C) and Chapter Six: Drug Offenses. C. Safer Pleas for Violent or Sexual Offenses Conviction of an offense that comes within the definition of a crime of violence (COV) under 18 USC 16 can cause two types of adverse immigration consequences. If a sentence of a year or more is imposed, it is a COV aggravated felony under 8 USC 1101(a)(43)(F). Regardless of sentence, if the defendant had a domestic relationship with the victim it is a deportable offense as a crime of domestic violence under 8 USC 1227(a)(2)(E). Under 18 USC 16(a), an offense is a crime of violence if it has as an element intent to use or threaten force against a person or property. Under 18 USC 16(b) a felony offense is a crime of violence even without intent to use force, if it is an offense that by its nature involves a substantial risk that force will be used. Offenses that involve an intent to use great force or sexual intent are also commonly held to be crimes involving moral turpitude. 291 U.S. v. Innie, 7 F.3d 840 (9th Cir. 1993). 292 Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997). Chapter 12: Alternative Pleas with Less Severe Immigration Consequences 106

121 1. Third and Fourth Degree Assault Third degree assault pursuant to (f) negligence provision 293 is not a crime of violence under the federal definition. Neither is fourth degree assault 294 if the record of conviction does not reflect which way the offense was committed. Thus they should not trigger deportation under either the aggravated felony or the domestic violence ground of deportability, regardless of the sentence imposed or the defendant s relationship to the victim. (Of course, a sentence of 364 days or less definitively removes the possibility of being charged with one of the two COV grounds: as an aggravated felony crime of violence.) If there is a plea to assault 4, be sure that the record does not indicate that defendant used force. See Chapter Eight: Domestic Violence, Stalking, Crimes Against Children and Prostitution Offenses. 2. Arguing Simple Assault Is Not a Crime of Violence Simple assault is commonly held to be a crime of violence, and therefore can cause deportability under the domestic violence ground if the victim was a current or former spouse, co-parent of a child, or date of the defendant. 295 Additionally, where simple assault has a sentence of one year or more imposed, it can constitute an COV as an aggravated felony under 8 USC 1101(a)(43)(F). The Ninth Circuit, however, recently held, in a non-immigrationrelated domestic violence context, that simple assault is not a crime of violence unless the record of conviction shows that there was more than mere touching, which is the minimum act to violate most battery statutes. 296 Under this decision, if the record of conviction is kept clear of information that the assault involved some violence, it will not trigger the domestic violence deportation ground or the aggravated felony COV provision. See Chapter Five, Eight, and Nine for further discussion of these issues. 3. Sexual Motivation Enhancement 297 and Communication with a Minor for Immoral Purposes 298 A sexual motivation finding serves as a sentence enhancement. The Ninth Circuit case U.S. v. Corona-Sanchez, held that a recidivist sentence enhancement was not part of the underlying conviction. 299 Consistent with that reasoning, a finding of sexual motivation should not be part of the underlying assault conviction for purposes of the immigration analysis. 293 RCW 9A (f); see Leocal v. Ashcroft, 125 S.Ct. 377 (2004) (force cannot be used negligently). 294 RCW 9A assault in the fourth degree; see, e.g., U.S. v. Belless, 338 F.3d 1063 (9 th Cir 2003) (offensive touching does not require use of force). 295 See 8 USC 1227(a)(2)(E)(i); INA 237(a)(2)(E)(i). 296 See U.S. v. Belless, 338 F.3d 1063 (9 th Cir 2003). 297 RCW 9.94A RCW 9.68A.090(1) F.3d 1201 (9 th Cir. 2002). See also United States v. Pimentel-Flores, 339 F.3d 959, (9th Cir. 2003). (Enhancement for violation of a court order also comes under the Corona-Sanchez rule.) Chapter 12: Alternative Pleas with Less Severe Immigration Consequences 107

122 Thus, an assault 3 conviction would not become a crime of violence, crime of moral turpitude or any other deportable offense simply because it is accompanied by a finding of sexual motivation. However, in United States v. Moreno Hernandez 300 a Ninth Circuit panel in 2005 distinguished such recidivist enhancements from one based on the presence of a victim s minor child at the offense. 301 The Court ruled that Corona-Sanchez was not entirely clear as to whether it was enunciating a rule only for recidivist sentencing enhancements 302 The Court ruled that the exclusion of enhancements from the categorical analysis appl[ies] only to enhancements not based directly on the facts of the offense of conviction. and that Corona-Sanchez s rule does not apply to sentence factors based on specific characteristics of the offense itself rather than on some aspect of the offender s legal history. 303 We do not have case law yet directly applying the Corona-Sanchez decision to sexual motivation enhancements. The Ninth Circuit has ruled that, abuse requires more than improper motivation; it requires conduct that is abusive. 304 This may help to keep an assault with a sexual motivation finding from being treated as an aggravated felony for sexual abuse of a minor, 305 although not necessarily from being a CIMT. Counsel must be careful to sanitize the record of the victim s age and relationship to defendant whenever possible. The question of how this enhancement will be treated has not been resolved. A possible alternative charge for a sexual offense that would be an aggravated felony as either rape or sexual abuse of a minor, could be Communication with a Minor for Immoral Purposes (CMIP). 306 A divided Ninth Circuit panel ruled in July, 2005 that this offense included conduct that went beyond the definition of abuse. 307 However, this avoids being an aggravated felony only if the record of conviction does not specify that the offense of conviction is for conduct that comes within the definition of sexual abuse of a minor. 308 It is still likely to be a CIMT, but this alone may not make the person deportable, or, if an LPR, the non-citizen may preserve eligibility for cancellation of removal. 309 If the record of conviction cannot be restricted to the statutory language, CMIP is likely to be treated as an aggravated felony. 300 F.3d (9th Cir.2005); 2005 U.S. App. LEXIS Or. Rev. Stat (3)(c). Fourth degree assault in Oregon U.S. App. LEXIS 13316, at Id. at United States v. Pallares-Galan, 359 F.3d 1088, (9th Cir. 2004) USC 1101(a)(43)(A); INA 101(a)(43)(A). 306 RCW 9.68A.090(1). 307 Parilla v. Gonzalez, No ; F.3d (9 th Cir. 2005); U.S. App. LEXIS 13810, at Parilla treats the 2002 version of CMIP; however, there don t seem to be any substantive differences that would restrict its application to the current statute. 308 Id. at For more information, please see Part II, Section C of this manual Quick Guide to Cancellation of Removal for Legal Permanent Residents. Chapter 12: Alternative Pleas with Less Severe Immigration Consequences 108

123 4. Unlawful Imprisonment 310 As long as the record of conviction does not indicate that unlawful restraint was done by force, this should not be a COV aggravated felony or a crime involving moral turpitude. Nor will it be a Sexual Abuse of a Minor (SAM) aggravated felony since the victim s age is not an element of the offense. D. Sentence of 364 Days or Less Many offenses become aggravated felonies only because a sentence of a year or more is imposed. These include crime of violence, theft, receipt of stolen property, burglary, bribery of a witness, commercial bribery, counterfeiting, forgery, trafficking in vehicles that have had their VIN numbers altered, obstruction of justice, perjury, subornation of perjury, and with some exceptions false immigration documents. 311 Often defense counsel has more leeway in avoiding a one-year sentence for a particular count than in pleading to an alternate offense. For suggestions about how to arrive at less than a one-year sentence even in somewhat serious cases, see Chapter Three: Sentencing Strategies. Many other offenses are aggravated felonies regardless of the sentence imposed. For example, sexual abuse of a minor, rape, and firearms and drug offenses are examples of such offenses. Fraud and money laundering offenses depend on whether $10,000 was lost or involved, not on the sentence imposed in determining whether or not they are aggravated felonies. Avoiding a one-year sentence in these cases will not prevent an aggravated felony. See Chapter One, Step Three, for more on Aggravated Assault. E. Using Anticipatory Offenses Step-Down to Avoid Deportability for Attempted Theft 3 Attempt takes on the character of the principal offense for immigration purposes. For example, attempt to commit a drug offense has the same adverse immigration consequences as the drug offense itself. However, attempt does offer a particular benefit in avoiding the deportability ground for conviction of theft in the third degree, a crime involving moral turpitude, because an attempt to commit a theft in the third degree will only be a simple misdemeanor 312 which carries a maximum possible sentence of 90 days, not the possible sentence of one year or more required to trigger this ground of deportation. A noncitizen is deportable if convicted of a single crime involving moral turpitude, committed within five years of last admission, if the offense carries a potential sentence of one year or more. 313 See Chapter Three: Sentencing Strategies for more information. 310 RCW 9A ; the definition of restraint at RCW 9A (1)(a) includes by deception. 311 See 8 USC 1101(a)(43); INA 101(a)(43). 312 RCW 9A (3)(e) USC 1227(a)(2)(A)(i)(I-II); INA 237(a)(2)(A)(i)(I-II). Chapter 12: Alternative Pleas with Less Severe Immigration Consequences 109

124 F. Clients Who Don t Know They Are Citizens A United States citizen faces no immigration consequences for any conviction. A citizen cannot be prosecuted for any offense for which alienage is an element (such as illegal re-entry). All persons born in the United States and Puerto Rico are U.S. citizens. Many people who were born in other countries also are U.S. citizens and may not know it. Many people born abroad inherited U.S. citizenship at birth from a parent without being aware of it. Others who were permanent residents as children may have automatically become citizens when a parent was naturalized. 314 To begin the inquiry, ask the defendant the following two threshold questions: When you were born did you have a parent or a grandparent who was a U.S. citizen? At any time before your 18 th birthday did the following take place (in any order): you were a permanent resident, and one or both parents naturalized to U.S. citizenship? If the answer to either threshold question might be yes, additional information needs to be collected, after which the case may be analyzed according to a citizenship chart. For assistance contact an immigration attorney or resource center; local non-profit immigration organizations also have expertise in this area, and if your local U.S. Passport office is not overburdened it might offer assistance. Note that if the client is a U.S. citizen, generally it is faster and better to apply for an American passport at a U.S. passport agency as proof of citizenship than to ask the immigration authorities for a citizenship certificate. The defendant can assert citizenship as a defense in removal proceedings and have the immigration judge terminate the case against her. But she will still need to apply for a passport or certificate, to prove citizenship. G. Bail Forfeiture as an Alternative Bail forfeiture as a disposition, without a guilty plea or other stipulation to facts, is a terrific alternative, wherever possible, for avoiding potential immigration consequences. It does not constitute a conviction for immigration purposes. Thus, regardless of the charged offense, it will not trigger grounds of deportation, inadmissibility, or any provisions of the aggravated felony definition. Note, however, that it is imperative that counsel ensures that there are no written admissions of guilt by the defendant to the charged offense. H. Compromise of a Misdemeanor The disposition known as Compromise of a Misdemeanor, pursuant to RCW is, like bail forfeiture, a great alternative for noncitizen defendants. It will avoid a conviction 314 The conditions for LPR children under 18 to automatically become U.S. citizens upon the naturalization of a parent were liberalized by the Child Citizenship Act of 2000, Pub. L. No , Act of Oct. 30, 2000, 114 Stat. 1631, which took effect on INA Sec 320; 8 USC The change was not retroactive. Chapter 12: Alternative Pleas with Less Severe Immigration Consequences 110

125 that may otherwise trigger deportation. Like bail forfeiture, compromise of a misdemeanor does not constitute a conviction for immigration purposes. Thus, regardless of the charged offense, it will not trigger grounds of deportation, inadmissibility or any provisions of the aggravated felony definition. However, also like bail forfeiture, it is imperative that counsel ensures that there are no written admissions of guilt by the defendant to the charged offense. I. Aiding and Abetting Offenses The Ninth Circuit has held that because of the breadth of the California definition of aiding and abetting, a conviction for aiding and abetting an offense such as theft is not an aggravated felony as theft even if a sentence of a year or more is imposed. 315 The Court s analysis also applies to Washington state s aiding and abetting laws. The Ninth Circuit further has recognized that under California law, an accusatory pleading against an aider or abettor may be drafted in a form identical to an accusatory pleading against the person alleged to have directly committed the offense. Again, the same analysis will apply under Washington law. 316 Therefore a plea of guilty to a charge alleging that the defendant directly committed, e.g., theft, does not prove that he or she did not plead guilty under an aiding or abetting theory, and does not prove that the offense of conviction was an aggravated felony Martinez-Perez v. Ashcroft, 393 F.3d 1019 (9 th Cir. 2005) (a plea to aiding and abetting grand theft under Calif. P.C. 487(c) would not be an aggravated felony even if a sentence of a year or more were imposed). Martinez-Perez originally held that the record of conviction in that case established that the person was not convicted under an aiding and abetting theory. However in Martinez-Perez v. Gonzales, No ,(9 th Cir., ); 2005 U.S. App. LEXIS (9th Cir., 2005) the Court reopened the case on its own motion and amended its decision in light of the U.S. Supreme Court decision in Shepard v. Ashcroft, 125 S. Ct (March 7, 2005). The Ninth Circuit corrected its earlier ruling and found that he was not convicted of an aggravated felony, under the analysis of California law described above and discussed in Penuliar v. Ashcroft, 395 F.3d 1037, (9 th Cir. 2005) (vehicle taking in violation of Cal. V.C (a); see discussion in United States v. Corona-Sanchez, 291 F.3d 1201, (9th Cir. 2002)(en banc) ( petty theft with a prior in violation of Cal. P.C. 490, 666). The Court held that Shepard applies to immigration cases, and that a charging document cannot be used in the modified categorical approach if the person pled to a different offense. The Court cited to Shepard s requirement that a ROC must also contain a plea agreement, transcript, explicit finding by a trial judge, or other specific evidence of the elements pled to, to establish those elements as the offense of conviction. 316 See RCW 9A ; State v. Rodriguez, 78 Wn.App. 769, 898 P.2d 871 (1995) (A defendant who has been found guilty under the current accomplice liability statute has been sufficiently apprised of the nature of the charges when charged in the information only as a principal); State v. Williams, 28 Wn. App. 209, 212 (Wash. Ct. App., 1981) (When accomplice liability is before the jury as an alternate theory, the trial court need not specially instruct the jurors that they are required to unanimously agree upon whether the defendant is a principal or an accomplice in order to convict); State v. Brown, 75 Wn.2d 611, 452 P.2d 958 (1969) (An information charging an aider and abettor as a "principal" is sufficient to put an accused on notice of charges against him); See also State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974), overruled on other grounds, State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984). 317 Penuliar v. Ashcroft, 395 F.3d at (9 th Cir. 2005) (noncitizen s plea to a charge alleging that he unlawfully took a vehicle did not make him deportable as an aggravated felon, because it did not eliminate the possibility that he was convicted as an aider and abettor); Corona-Sanchez, supra n. 314; see Cal. Penal Code 971, 31; see also People v. Greenberg, 111 Cal. App. 3d 181, 188, 168 Cal. Rptr. 416 (Ct. App. 1980). In Martinez-Perez v.gonzales (supra n. 314) the Court held that the record of conviction, with only Chapter 12: Alternative Pleas with Less Severe Immigration Consequences 111

126 This opens an opportunity for defense counsel. As long as the record of conviction does not exclude the possibility under Washington law that the defendant was convicted for aiding and abetting, the offense is not an aggravated felony, at least as defined by general terms such as theft, sexual abuse of a minor, etc. This theory might not hold up for aggravated felonies defined in relation to federal statute, if the federal statute itself includes broadly defined aiders and abettors. The government might argue that this would not apply to $10,000 fraud cases as well, since aiding and abetting might be held an offense that involves fraud in which the loss to the victim was $10,000. Note that as a practical matter, this is an argument that a noncitizen is likely to have to assert in removal proceedings if the conviction constitutes an otherwise removable offense since the immigration authorities are not likely to concede these points and will still likely pursue removal. an original charging document and an abstract of judgment for a different charge, did not permit the Court to determine if Mr. Martinez was convicted of the generic theft offense-- an actual taking or of aiding or abetting. Chapter 12: Alternative Pleas with Less Severe Immigration Consequences 112

127 113

128 Part II AN RCW QUICK REFERENCE CHART FOR DETERMINING IMMIGRATION CONSEQUENCES OF SELECTED WASHINGTON STATE OFFENSES 114

129 115

130 An RCW Quick Reference Chart A. How to Use This Chart The chart contained in this section provides a distilled analysis of the immigration consequences of selected criminal offenses listed under RCW Titles 9, 9A, 26, 46 and 69. Each offense has been analyzed under current, controlling immigration law. The chart is organized numerically by code section. In using this chart, please remember the following: Need for Individual Analysis: This chart and notes are a summary of a complex body of law. They are intended to be consulted on-line or printed out and carried to courtrooms and client meetings for quick reference. However, a more thorough individual analysis of a noncitizen defendant s immigration situation is required to give competent defense advice. For more assistance please contact the WDA s Immigration Project and/or see Appendix B: Additional Resources. Providing Feedback About the Chart: Contact us if you disagree with an analysis, see a relevant new case, want to suggest other offenses to be analyzed or propose other alternate safer pleas or provide any other feedback about the chart. Send s to: [email protected] and [email protected] Additional Online Analysis: Please go to WDA s website at for additional, in-depth analysis on the crimes listed in this chart. 1. The Chart An Overview The chart contained in this section provides a distilled immigration analysis of each of the criminal offenses listed under Titles 9, 9A, 46 and 69 of the Revised Code of Washington. Each offense has been analyzed under current, controlling immigration law. The chart divides the relevant crime-related immigration provisions into three categories: Aggravated Felony Crime of Moral Turpitude Other Grounds The chart then indicates the likelihood that an offense would be deemed to be an aggravated felony, crime of moral turpitude and/or some other specified crime-related ground under immigration law. Part II, A: How to Use RCW Quick Reference Chart 116

131 For more detailed information on aggravated felonies, crimes involving moral turpitude and other grounds of deportation and inadmissibility, please see Part One, supra. The analysis contained in those chapters provides critical supplemental information in determining the immigration consequences in a given case. 2. Reading the Chart Columns one and two indicate the code section and title of the RCW offense. The analysis under columns three, four and five is broken down into five possible classifications: 1. YES The immigration statute and/or caselaw clearly deem this offense to constitute an aggravated felony or crime of moral turpitude and/or whatever additional grounds are identified under column LIKELY The immigration statute and/or caselaw may not be directly on point or clearly indicate that this offense is an aggravated felony, crime of moral turpitude, etc. However, analyzed in the context of relevant immigration caselaw, the offense is likely to be deemed as such by INS and/or the immigration courts. 3. POSSIBLE The immigration statute and/or caselaw are unclear as to whether this offense would constitute an aggravated felony, crime of moral turpitude, etc., and there are unresolved legal issues both for and against such classification. Such a designation may be avoidable, depending upon such factors as how defense counsel structures a plea agreement or which particular prong of the offense defendant is convicted under. 4. NOT LIKELY The immigration statute and/or caselaw may not be directly on point or clearly indicate that this offense is not an aggravated felony, crime of moral turpitude, etc. However, analyzed in the context of relevant immigration caselaw, the offense is not likely to be deemed as such by INS and/or immigration courts. 5. NO The statute and/or caselaw clearly indicate that this offense is not an aggravated felony, crime of moral turpitude, etc. Part II, A: How to Use RCW Quick Reference Chart 117

132 3. Table of Abbreviations CS = Controlled Substance Violations under the grounds of inadmissibility and the grounds of deportability; P = Prostitution offenses under the grounds of inadmissibility (NOTE: these offenses are not a specific ground of deportability); T = Security and Terrorism offenses under the grounds of inadmissibility and the grounds of deportability; DV = Domestic violence offenses under the grounds of deportability. (NOTE: these offenses are not a specific ground of inadmissibility although some DV offenses are crimes of moral turpitude); CAC = Crimes against children offenses under the grounds of deportability. (NOTE: these offenses are not a specific ground of inadmissibility); PV = Protection order violations under the grounds of deportability. (NOTE: these offenses are not a specific ground of inadmissibility); COV = Crime of Violence will constitute aggravated felonies where sentence imposed is one year or more and DV deportation ground where committed against a person; FTA = Failure to Appear offenses are aggravated felonies; PSP = Possession of Stolen Property offenses are aggravated felonies where one year or more sentence imposed; ROC = Record of Conviction for immigration purposes; SAM = Sexual Abuse of a Minor offenses are aggravated felonies regardless of sentence; Firearms = Firearms offenses under the grounds of deportability. (NOTE: these offenses are NOT a specific ground of inadmissibility although some DV offenses are crimes of moral turpitude); RTB = Reason to Believe the person has been involved in drug trafficking or has aided those involved in drug trafficking. (NOTE: this is a ground of inadmissibility, not deportability and does not require a conviction.) Part II, A: How to Use RCW Quick Reference Chart 118

133 B. The RCW Quick Reference Chart for Determining Immigration Consequences of Selected Washington State Offenses RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): Class C Felony Felony (1)(a) Class B Felony (1)(b) Class C Felony Simple Misdemeanor Simple Misdemeanor Class C Felony Class C Felony Class A Felony Identity Theft Fraud: Yes if loss to victim = $10k or more. Theft & Forgery: Yes if sentence imposed = 1 year or more. Incendiary devices First Degree Unlawful Possession of Firearms- Ownership, possession by certain persons Second Degree Unlawful Possession of Firearms- Ownership, possession by certain persons Carrying Firearms Alteration of Identifying marks: 1) No person may change, alter, remove, or obliterate the name of the maker, model, manufacturer's number, or other mark of identification on any firearm. 2) Possession of any firearm upon which any such mark shall have been changed, altered, removed, or obliterated, shall be prima facie evidence that the possessor has changed, altered, removed, or obliterated the same. Alien's license to carry Firearms Unlawful Firearms Use of a machine gun in felony. Explosives: Likely Firearms: No Firearms Trafficking: No Firearms: Likely Firearms Trafficking: No Firearms: Possibly (may depend on nature of predicate conviction.) Firearms Trafficking: No Firearms: No Firearms Trafficking: No Firearms: Possibly Firearms Trafficking: No Firearms: No Firearms Trafficking: Possible Firearms: Yes COV: Yes if sentence imposed = 1 year. Firearms: Likely Likely Possible No No No Not Likely No No Possible Other Grounds No Firearms: Possible Firearms: Yes Firearms: Yes Firearms: Yes Firearms: Yes (NOTE: conviction under the second sentence of statute is definitely deportable; but the 1 st sentence includes some conduct outside the removal statute.) Firearms: Yes Firearms: Yes Firearms: Yes Part II, B: RCW Quick Reference Chart 119

134 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): Gross Misdemeanor Gross Misdemeanor Simple Misdemeanor Gross Misdemeanor Gross Misdemeanor Simple Misdemeanor Simple Misdemeanor (1) Gross Misdemeanor Aiming or Discharging Firearms, Dangerous Weapons Dangerous Weapons Dangerous Exhibitions Weapons apparently capable of producing bodily harm -- Unlawful carrying or handling Possessing Dangerous Weapons on School Facilities (S)Obstruction of public servant No person shall intentionally obstruct or attempt to obstruct a public servant in the administration or enforcement of this chapter by using or threatening to use physical force or by means of any unlawful act. COV: Possibly Firearms Trafficking: No Firearms: No Firearms Trafficking: No Firearms: Possible COV: Possibly if sentence imposed = 1 year. Firearms Trafficking: No Firearms: No Firearms Trafficking: No; Firearms: No COV: Possibly if sentence imposed = 1 year. Firearms Trafficking: No Firearms: Possible COV: No, because 1 year sentence is not possible for simple misdemeanor. Obstruction: No, because 1 year sentence is not possible for simple misdemeanor. Possibly No No Possibly No Not likely, but possible, if force is method of obstructtion. Better to leave unlawful act unspecified. Slander of woman No No No Other Grounds Firearms: Yes, if ROC shows weapon was gun. DV: likely if ROC shows relationship to victim. Firearms: Likely, if ROC shows weapon was gun under 2 or silencer under 3. Firearms: Likely if ROC shows weapon was gun. Firearms: Possibly, if ROC shows weapon was gun. DV: Likely if ROC shows relationship to victim. Firearms: Yes, if ROC shows conviction for gun under (1)(a). No Telephone harassment No Possible DV: Possible if ROC shows conviction under (1)(c) threat is against a person & ROC shows relationship to victim. Part II, B: RCW Quick Reference Chart 120

135 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): (2)(a) Class C Felony (2)(b) Class C Felony Simple Misdemeanor Class B Felony/Gross Misdemeanor/ Simple Misdemeanor Simple Misdemeanor Class C Felony 9.68A.040 Class B Felony 9.68A.050 Class C Felony 9.68A.060 Class C Felony 9.68A.070 Class C Felony 9.68A.080(1) Gross Misdemeanor 9.68A.090 Felony/Gross Misdemeanor 9.68A.100 Other Grounds Telephone harassment No No DV: Possible if ROC shows conviction based on (1)(c) threat is against a person; and if ROC shows relationship to victim. Telephone harassment COV: Likely if sentence Likely DV: Yes if ROC shows imposed = 1 year or more. relationship to victim. Telephone harassment -- No Possible No Permitting telephone to be used "Erotic material" Child Porn: Not Likely Not likely No "Sexually explicit material" Child Porn: Not Likely No No Promoting pornography Child Porn: Not Likely Possible No Sexual exploitation of a minor Dealing in depictions of minor engaged in sexually explicit conduct Sending, bringing into state depictions of minor engaged in sexually explicit conduct Possession of depictions of minor engaged in sexually explicit conduct (Failure to engage in) Reporting of depictions of minor engaged in sexually explicit conduct Communication with minor for immoral purposes Patronizing juvenile prostitute SAM: Likely COV: Likely, if ROC shows it s under (1)(a) & if sentence imposed = 1 year or more. Child Porn: Yes SAM: Likely Child Porn: Yes Likely Likely CAC: Yes CAC: Likely Child Porn: Yes Likely CAC: Likely SAM: Possible Child Porn: Yes Likely CAC: Possible Child Porn: Possible Possible CAC: Possible SAM: Possible. If ROC is kept to minimum statutory language, will not be SAM. Likely CAC: Possible SAM: Possible Likely CAC: Possible Part II, B: RCW Quick Reference Chart 121

136 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): Gross Misdemeanor Leaving children unattended in parked automobile Other Grounds No No CAC: Possible Food stamps--unlawful No No No sale Food stamps -- Trafficking. No Possible No Class C Felony/Gross Misdemeanor 9A Felony 9A Felony/Simple Misdemeanor/Gross Misdemeanor 9A Felony/Simple Misdemeanor/ Gross Misdemeanor 9A Felony/ Simple Misdemeanor/ Gross Misdemeanor 9A Class A Felony 9A Class A Felony 9A Class A Felony 9A Class A Felony 9A Class B Felony Attempt, solicitation, or conspiracy based on felonies defined outside Title 9A RCW Criminal attempt Criminal solicitation Criminal conspiracy Attempt & Conspiracy: Yes if underlying offense is AF. But see section on solicitation, which is distinct from underlying offense. Attempt: Yes if underlying offense is AF. Not AF. (NOTE: Solicitation to deliver or possess drugs is NOT an AF under (B) Drug Trafficking or (U) Attempt/ Conspiracy.) Attempt & Conspiracy: Yes if underlying offense is AF. Yes, if underlying offense is CIMT Yes, if underlying offense is CIMT Possible, if underlying offense is CIMT; or if Courts were to rule solicitation is itself a CIMT Yes if underlying offense is CIMT Likely if underlying offense is removable offense. But see section on solicitation, which is distinct from underlying offense. Likely if underlying offense is removable offense. CS: No RTB: Possible if drugrelated. Likely if underlying offense is removable offense. Murder in the first degree Murder: Yes Yes DV: Likely if ROC shows relationship to victim. Murder in the second degree Murder: Yes Yes DV: Likely if ROC shows relationship to victim. Homicide by abuse Murder: Yes Yes DV: Likely if ROC shows relationship to victim. Manslaughter in the first degree Manslaughter in the second degree COV: Likely if sentence imposed = 1 yr or more. COV: Possible if ROC indicates use of force and sentence imposed = 1 year or more. Yes No DV: Likely if ROC shows relationship to victim. DV: Possible if ROC shows relationship to victim. Part II, B: RCW Quick Reference Chart 122

137 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): 9A Class A Felony 9A Class B Felony 9A (1)(a) Class C Felony 9A (1)(b) Class C Felony 9A (1)(c) Class C Felony 9A (1)(d) Class C Felony 9A (1)(e) Class C Felony 9A (1)(f) Class C Felony 9A (1)(g) Class C Felony 9A (1)(h) Class C Felony 9A Gross Misdemeanor 9A Class B Felony 9A Gross Misdemeanor Assault in the first degree Assault in the second degree Assault in the third degree 1(a) Assault in the third degree 1(b) Assault in the third degree 1(c) Assault in the third degree by means or a weapon or other instrument 1(d) Assault in the third degree 1(e) Assault in the third degree 1(f) Assault in the third degree 1(g) Assault in the third degree 1(h) COV: Yes if sentence imposed = 1 year or more. COV: Yes if sentence imposed = 1 year or more. Firearms Trafficking: No Firearms: No COV: Likely if ROC shows use of force & sentence imposed = 1 year or more. Obstruction of Justice: Possible if sentence imposed = 1 year or more. COV: Likely if ROC shows use of force & sentence imposed = 1 year or more. COV: Likely if ROC shows use of force & sentence imposed = 1 year or more. COV: if ROC shows sentence imposed = 1 year or more-- Not Likely Firearms Trafficking: No Firearms: No COV: Likely if ROC shows use of force & sentence imposed = 1 year or more. Yes Yes Likely Possible Possible Not Likely Possible COV: No No DV: No COV: Likely if ROC shows use of force & sentence imposed = 1 year or more. COV: Likely if ROC shows use of force & sentence imposed = 1 year or more. Assault in the fourth degree COV: Yes, if ROC shows use of force and sentence imposed = 1 year or more. Drive-by shooting COV: Yes if sentence imposed = 1 year or more. Reckless endangerment COV: Unlikely, but possible if sentence imposed = 1 year or more. Possible Possible No. Yes Likely Other Grounds Firearms: Yes, if used gun under (1)(a). DV: Likely if ROC shows relationship to victim. Firearms: Yes if ROC shows weapon was gun. DV: Yes if ROC shows relationship to victim. No No No DV: No. Firearms: Yes, if ROC shows weapon was gun. No No No DV: Yes, if ROC shows use of force and relationship to victim. Firearms: Yes. DV: Yes, if ROC shows relationship to victim. DV: Likely if ROC shows relationship to victim. Part II, B: RCW Quick Reference Chart 123

138 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): 9A Gross Misdemeanor 9A Class C Felony 9A Class A Felony 9A Class B Felony 9A Class C Felony 9A Gross Misdemeanor 9A Class A Felony 9A Class B Felony 9A Class C Felony Coercion Malicious harassment Assault of a child in the first degree Assault of a child in the second degree Assault of a child in the third degree Interfering with the reporting of domestic violence Kidnapping in the first degree Kidnapping in the second degree Unlawful imprisonment COV: Yes if sentence imposed = 1 year or more. UNLESS conviction under (2)(b) for a threat defined in 9A (25), e.g., (e) and (f) that doesn t require the use of force. COV: Likely if sentence imposed = 1 year or more. (Possible defense where ROC shows that threat to harm or injure was by a means not requiring or involving use/threat of force.) COV: Yes if sentence imposed = 1 year or more. SAM: No but possible if w/sex. motive. COV: Yes if sentence imposed = 1 year or more; SAM: No but possible if w/sex. motive. COV: Not likely; SAM: No but possible if w/sex. motive. COV: Yes if interference involved use/threat of force and sentence imposed = 1 year or more. Obstruction of Justice: Possible if sentence imposed = 365 suspended. COV: Likely if sentence imposed = 1 year or more. Ransom: Possible COV: Likely if sentence imposed = 1 year or more; (H)Ransom: Not likely COV: Likely, if ROC shows violence and sentence imposed = 1 year or more. Ransom: Not likely Possible Likely Yes Yes No Likely Yes Likely Not likely Other Grounds DV: Likely if ROC shows relationship to victim, UNLESS conviction under (2)(b) for a threat defined in 9A (25), e.g., (e) and (f) that doesn t require use of force. DV: Likely if ROC shows relationship to victim EXCEPT a conviction under (1)(b), for property damage only. DV: Yes if ROC shows relationship to victim. CAC: Yes DV: Yes if ROC shows relationship to victim. CAC: Yes DV: No CAC: Yes DV: Yes if interference involved use/threat of force against person. DV: Possible if ROC shows relationship to victim. T: Possible DV: Likely if ROC shows relationship to victim. DV: Possible if ROC shows relationship to victim and use of force. Part II, B: RCW Quick Reference Chart 124

139 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): 9A Class C Felony 9A Class B Felony 9A Class C Felony 9A Class B Felony 9A Class C Felony 9A Gross Misdemeanor 9A Class A Felony 9A Class A Felony 9A Class C Felony 9A Class A Felony 9A Class A Felony 9A Class C Felony Luring Criminal mistreatment in the first degree Criminal mistreatment in the second degree Abandonment of a dependent person in the first degree Abandonment of a dependent person in the second degree Abandonment of a dependent person in the third degree Rape in the first degree Rape in the second degree Rape in the third degree Rape of a child in the first degree Rape of a child in the second degree Rape of a child in the third degree COV: Not likely (but clearly not where sentence imposed is < 1 year.) COV: Not likely (but clearly not where sentence imposed is < 1 year.) COV: Not likely (but clearly not where sentence imposed is < 1 year.) COV: Not likely unless ROC shows use/threat of force and sentence imposed is 1 yr or more. COV: Not likely unless ROC shows use/threat of force and sentence imposed is 1 yr or more. COV: Not likely unless ROC shows use/threat of force and sentence imposed is 1 yr or more. Rape: Yes COV: Yes if sentence imposed = 1 year or more. Rape: Yes COV: Yes if sentence imposed = 1 year or more. Rape: Yes COV: Likely if sentence imposed = 1 year or more. Rape & SAM: Yes COV: Yes if sentence imposed = 1 year or more. Rape & SAM: Yes COV: Yes if sentence imposed = 1 year or more. Rape & SAM: Likely COV: Possible if sentence imposed = 1 year or more. Likely Yes Yes Yes Yes Possible Yes Yes Yes Yes Yes Yes Other Grounds CAC: Yes where ROC shows victim is a minor. CAC: Yes DV: Not likely since no use/threat of force required. CAC: Yes DV: Not likely unless ROC shows use/threat of force. DV: Not likely unless ROC shows use/threat of force. CAC: If ROC shows victim is minor. DV: Not likely unless ROC shows use/threat of force. CAC: If ROC shows victim is minor. DV: Not likely unless ROC shows use/threat of force. CAC: If ROC shows victim is minor. DV: Possible if ROC shows relationship to victim. DV: Yes if ROC shows relationship to victim. DV: Yes if ROC shows relationship to victim. DV: Yes if ROC shows relationship to victim. CAC: Yes DV: Yes if ROC shows relationship to victim. CAC: Yes DV: Yes if ROC shows relationship to victim. CAC: Yes Part II, B: RCW Quick Reference Chart 125

140 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): 9A Class A Felony 9A Class B Felony 9A Class C Felony 9A Class C Felony 9A Gross Misdemeanor 9A Class B Felony 9A Simple Misdemeanor 9A Simple Misdemeanor 9A Class C Felony/Gross Misdemeanor 9A Class A Felony Child Molestation in the first degree Child Molestation in the second degree Child Molestation in the third degree Sexual misconduct with a minor in the first degree Sexual misconduct with a minor in the second degree Indecent liberties SAM: Yes COV: Possible if sentence imposed = 1 year or more & ROC shows use of force. SAM: Yes COV: Possible if sentence imposed = 1 year or more and ROC shows use of force. SAM: Yes COV: Possible if sentence imposed = 1 year or more and ROC shows use of force. SAM: Likely COV: Likely if sentence imposed = 1 year or more & ROC shows use of force. SAM: Likely COV: Possible if sentence imposed = 1 year or more & ROC shows use of force. SAM: Possible, if ROC shows victim was minor. COV: Likely if sentence imposed = 1 year or more Yes Yes Yes Yes Yes Yes Other Grounds Court-ordered requirements upon person charged with crime -- Violation No Possible PV: Yes Order restricting contact No Possible PV: Yes Stalking Arson in the first degree COV: Likely if sentence imposed = 1 year or more and where ROC shows use/threat of force. Obstruction of Justice: Possible if sentence imposed = 1 year or more if (5)(f) COV: Likely if sentence imposed = 1 yr or more. Likely Yes DV: Possible if ROC shows relationship to victim & use of force. CAC: Yes DV: Possible if ROC shows relationship to victim & use of force. CAC: Yes DV: Possible if ROC shows relationship to victim & use of force. CAC: Yes DV: Likely if ROC shows relationship to victim & use of force. CAC: Yes DV: Likely if ROC shows relationship to victim & use of force. CAC: Yes DV: Likely if ROC shows relationship to victim. Stalking crimes are specific ground of deportation. PV: Yes if Sec. 5(a) or (b). DV: Unlikely even with relationship to victim since this only covers property damage and not violence against a person. Part II, B: RCW Quick Reference Chart 126

141 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): 9A Class B Felony 9A Class C Felony 9A Gross Misdemeanor 9A Class B Felony 9A Class C Felony 9A Gross Misdemeanor/ Simple Misdemeanor 9A Class A Felony 9A Class B Felony 9A Class B Felony 9A Gross Misdemeanor 9A Simple Misdemeanor Arson in the Second degree Reckless burning in the first degree Reckless burning in the second degree Malicious mischief in the first degree Malicious mischief in the second degree Malicious mischief in the third degree Burglary in the first degree Residential burglary with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle Burglary in the second degree Criminal trespass in the first degree Criminal trespass in the second degree COV: Likely if sentence imposed = 1 yr or more. COV: Likely if sentence imposed = 1 yr or more. COV: Likely if sentence imposed = 1 yr or more. COV: Likely if sentence imposed = 1 yr or more & ROC shows use/ threat of force. COV: Likely if sentence imposed = 1 yr or more & ROC shows use/ threat of force. COV: Likely if sentence imposed = 1 yr or more & ROC shows use/ threat of force. COV & Burglary: Yes if sentence imposed = 1 year or more. COV & Burglary: Yes if sentence imposed = 1 year or more. COV & Burglary: Yes if sentence imposed = 1 year or more. Yes Yes Yes No No No Likely Likely Likely, unless ROC reflects crime of intent was not itself a CIMT (e.g.: Mal. Mischief) No Not likely No No Not likely No Other Grounds DV: Unlikely even with relationship to victim since this only covers property damage and not violence against a person. DV: Not likely since this is property crime. DV: Not likely since this is property crime. DV: Not likely since this is property crime. DV: Not likely since this is property crime. DV: Not likely since this is property crime. DV: Possible if ROC shows relationship to victim. DV: Possible if ROC shows relationship to victim; esp. if intended crime is one against person not property crime. DV: Possible if ROC shows relationship to victim esp. if intended crime is one against person. Part II, B: RCW Quick Reference Chart 127

142 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): 9A Class C Felony 9A Gross Misdemeanor 9A Class B Felony 9A Class C Felony 9A Gross Misdemeanor 9A Class C Felony /Gross Misdemeanor 9A Class B Felony Vehicle prowling in the first degree Vehicle prowling in the second degree Theft in the first degree -- Other than firearm Theft in the second degree -- Other than firearm Theft in the third degree Unlawful issuance of checks or drafts Taking motor vehicle without permission in the first degree COV: No Theft/Burg: Possible if sentence imposed = 1 year or more. COV & Theft/Burg: No Theft: Yes if sentence imposed = 1 year or more; however theft of services or labor is not an aggravated felony under this ground. Theft: Yes if sentence imposed = 1 year or more; however theft of services or labor is not an aggravated felony under this ground. Theft: Yes if sentence imposed = 1 year or more; however theft of services or labor is not an aggravated felony under this ground. Laundering: Possible if loss to victim = $10k or more. Theft: Yes if sentence imposed = 1 year or more. (M) Fraud: Yes if loss to victim = $10k or more. Theft: Yes if sentence imposed = 1 year or more. Possible, unless ROC reflects crime of intent was not itself a CIMT (e.g., Mal. Mischief) Possible; unless ROC reflects crime of intent was not itself a CIMT (e.g., Mal Mischief) Yes Yes Yes Yes Yes Other Grounds No No No No No No No Part II, B: RCW Quick Reference Chart 128

143 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): 9A Class C Felony 9A Class B Felony 9A Class C Felony 9A Gross Misdemeanor 9A Class A Felony 9A Class B Felony 9A Class B Felony 9A Class B Felony 9A Class C Felony 9A Class B,C Felony 9A Class B Felony 9A Class C Felony Taking motor vehicle without permission in the second degree Possessing stolen property in the first degree Possessing stolen property in the second degree Possessing stolen property in the third degree Robbery in the first degree Robbery in the second degree. Theft of a Firearm Theft: Possible if sentence imposed = 1 year or more; unless ROC shows intent to deprive was de minimis; also, if offense is restricted to driv[ing] away or voluntarily riding in a car, it may not amount to the requisite minimum or temporary taking. PSP: Yes if sentence imposed = 1 year or more. PSP: Yes if sentence imposed = 1 year or more. PSP: Yes if sentence imposed = 1 year or more. COV: Yes if sentence imposed = 1 year or more. Theft/Burg: Yes if sentence imposed = 1 year or more. COV: Yes if sentence imposed = 1 year or more. Theft/Burg: Yes if sentence imposed = 1 year or more. Theft: Yes if sentence imposed = 1 year or more. Firearms Trafficking: No Firearms: No Possessing a Stolen Firearm Theft: Yes if sentence imposed = 1 year or more. Firearms Trafficking: No Firearms: Possible Forgery Forgery: Yes if sentence imposed = 1 year or more. Fraud: Likely if loss to victim = $10k or more. Incest Rape/SAM: Likely; COV: Possible if sentence imposed = 1 year or more. Perjury in the first degree Obstruction: Yes if sentence imposed = 1 year or more. Perjury in the second degree Obstruction: Possible if sentence imposed = 1 year or more. Possible; however taking without intent to permanently deprive ( joyriding ) may not be a CIMT Yes Yes Yes Yes Yes Likely Yes Yes Yes Yes Yes Other Grounds No No No No Firearms: Likely if ROC shows weapon is firearm. No Firearms: Yes Firearms: Yes No CAC: Yes if ROC shows minor victim. DV: Possible No No Part II, B: RCW Quick Reference Chart 129

144 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): 9A Class B Felony 9A Class C Felony 9A Gross Misdemeanor 9A Simple Misdemeanor 9A Class C Felony/Gross Misdemeanor 9A Gross Misdemeanor/ Simple Misdemeanor 9A Simple Misdemeanor 9A Class A,B,C Felony/ Simple Misdemeanor 9A Intimidating a witness Tampering with a witness Obstructing a law enforcement officer Obstruction: Yes if sentence imposed = 1 year or more. COV: Possible if sentence imposed = 1 year or more and ROC shows use/threat of force. Obstruction: Yes if sentence imposed = 1 year or more. COV: Not likely Obstruction: Yes if sentence imposed = 1 year or more. COV: No Yes Likely Possible Resisting arrest No. No No Rendering criminal assistance in the first degree Rendering criminal assistance in the second degree Rendering criminal assistance in the third degree Bail jumping Making a false or misleading statement to a public servant Obstruction: Possible if sentence imposed = 1 year or more. COV: Possible if sentence imposed = 1 year or more; if ROC shows use or threat of force under (4) or (6). Obstruction: Yes if sentence imposed = 1 year or more. COV: Possible if sentence imposed = 1 year or more; and probably only if ROC shows use or threat of force under (4) or (6). Likely Likely Other Grounds No No No Firearms: Possible only if ROC shows weapon used per (6) was a firearm. Firearms: Possible only if ROC shows weapon used per (6) was a firearm. No Not likely Firearms: Possible only if ROC shows weapon per (6) was a firearm. FTA (sentence): Yes if Not likely No convicted of a felony offense punishable by 5 years or more. FTA (charges): Yes if charged with a felony offense punishable by 2 years or more. No Possible No Part II, B: RCW Quick Reference Chart 130

145 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): 9A Class B,C Felony 9A Class B Felony 9A Simple Misdemeanor 9A Simple Misdemeanor 9A Gross Misdemeanor 9A Class C Felony/ Simple Misdemeanor 9A Simple Misdemeanor 9A Class B Felony 9A Class C Felony 9A Simple Misdemeanor 9A Simple Misdemeanor (1) Gross Misdemeanor (4) Class C Felony Trafficking in stolen property in the Money laundering Theft/PSP: Likely if sentence imposed is one year or more. RICO: Possible if sentence of one year or more may be imposed. Trafficking in vehicles: Possible if sentence imposed = 1 year or more. Laundering: Yes if loss to victim = $10k or more. Yes Possible Failure to disperse No No No Disorderly conduct No No No Other Grounds False reporting COV: Not likely, but ensure Not Likely No sentence of <1 yr. Indecent exposure SAM: Possible Possible PV: Possible Prostitution No Yes No Promoting prostitution in the first degree. SAM: Possible if ROC shows victim is minor. COV: Likely if sentence imposed = 1 year or more. Pimping: Likely Yes DV: Possible Pimping: Likely Yes No Promoting prostitution in the second degree Permitting prostitution No Yes No Patronizing a prostitute Pimping: Unlikely Possible No Violation of order Violation of order COV: Possible if sentence imposed = 1 yr or more and ROC shows use/threat of force. COV: Possible if sentence imposed = 1 year or more and ROC shows use/threat of force. Possible Likely No No DV: Possible where ROC shows requisite relationship. PV: Yes if ROC shows violation was for threats of violence, harassment or bodily injury. DV: Likely where ROC shows requisite relationship. PV: Yes Part II, B: RCW Quick Reference Chart 131

146 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): (5) Class C Felony Simple Misdeamnor Class B, C Felony/Gross Misdemeanor Simple Misdemeanor Simple Misdemeanor Simple Misdemeanor Class C Felony Gross Misdemeanor Gross Misdemeanor Simple Misdemeanor Gross Misdemeanor Violation of order Duty on striking unattended car or other property Duty in caseof personal injury or deathor damage to attended vehicle or property Obedience to police officers, flaggers, or fire fighters Refusal to give information to or cooperate with officer COV: Possible if sentence imposed = 1 year or more and ROC shows use/threat of force. Likely COV: No Not Likely No COV: No Likely, some provisions, e.g., (2) involving only property damage are less likely to be CIMTs. Other Grounds DV: Possible where ROC shows requisite relationship. PV: Yes if ROC shows violation was for threats of violence, harassment or bodily injury. No COV: No Not Likely No COV: No Obstruction of Justice: No Possible, (provision of false info more likely to be CIMT than mere refusal). Not Likely Failure to obey officer COV: No Obstruction of Justice: No No Attempting to elude police COV: Likely, if sentence Likely No vehicle imposed = 1 year or more. Reckless driving COV: Possible if sentence Possible No imposed = 1 yr or more. Driving under the influence COV: No No CS: Possible if DUI is for being under influence of cont d substance. Driver under twenty-one consuming alcohol Physical control of vehicle under the influence No No No No COV: No No CS: Possible if DUI is for being under influence of cont'd substance. Part II, B: RCW Quick Reference Chart 132

147 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): (1)(a) Class A Felony (1)(b) Class A Felony (1)(c) Class A Felony (1)(a) Class B Felony (1)(b) Class B Felony (1)(c) Class B Felony Simple Misdemeanor Civil infraction Civil infraction Simple Misdemeanor Section (1) Gross Misdemeanor Section (2) Gross Misdemeanor Simple Misdemeanor Simple Misdemeanor Vehicular homicide while under the influence of intoxicating liquor or any drug Vehicular homicide In a reckless manner; Vehicular homicide with disregard for the safety of others Vehicular assault In a reckless manner and causes substantial bodily harm to another Vehicular assault while under the influence of intoxicating liquor or any drug and causes substantial bodily harm. Vehicular assault with disregard for the safety of others and causes substantial bodily harm to another Negligent driving - First degree Opening or consuming liquor in public place Sales to persons apparently under the influence of liquor Drinking in public conveyance Furnishing liquor to minors Furnishing Furnishing liquor to minors MIP Minor purchasing or attempting to purchase liquor Minors frequenting off-limits area Other Grounds COV: No No CS: Possible if DUI is for being under influence of cont d substance. COV: Likely, if sentence Likely No imposed = 1 yr or more. COV: Possible, if sentence Possible No imposed = 1 yr or more. COV: Likely, if sentence imposed = 1 yr or more. Likely COV: No No CS: Possible if DUI is for being under influence of cont d substance. COV: Possible if sentence imposed = 1 yr or more. Possible No No CS: Possible if under influence of illegal drug. No No No No No No No No No No No No Possible but unlikely No No No No No No No No No No Part II, B: RCW Quick Reference Chart 133

148 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): 9A Criminal solicitation No. NOTE: Solicitation to deliver/possess drugs is NOT an AF under Drug Trafficking or Attempt/ Conspiracy (2)(a) Class B Felony (2)(b) Class B Felony (2)(c) Class C Felony (2)(d) Class C Felony (2)(e) Class C Felony Class B, C Felony Manufacture, deliver, or possess with intent to manufacture or deliver: Schedule I or II narcotic drug or flunitrazepam Manufacture, deliver, or possess with intent to manufacture or deliver: amphetamine or methamphetamine Manufacture, deliver, or possess with intent to manufacture or deliver: other controlled substance classified in Schedule I, II, or III, Manufacture, deliver, or possess with intent to manufacture or deliver : substance classified in Schedule IV, except flunitrazepam Manufacture, deliver, or possess with intent to manufacture or deliver : substance classified in Schedule V Counterfeit substances Drug Trafficking: Yes, but see solicitation at 9A , supra. Drug Trafficking: Yes, but see solicitation at 9A , supra. Drug Trafficking: Yes, but see solicitation at 9A , supra. Drug Trafficking: Yes, but see solicitation at 9A , supra. Drug Trafficking: Yes, but see solicitation at 9A , supra. Drug Trafficking: Yes, but see solicitation at 9A , supra. See possible exception if limited to possess only. (M) Fraud: Likely if loss to victim = $10k or more. Possible if underlying offense is CIMT Yes. Yes Yes Yes Yes Yes, unless successful in limiting to possess. Trafficking is a CIMT; simple poss. is not. Other Grounds CS: No RTB: Possible if drugrelated. CS: Yes, but see solicitation at 9A RTB: Possible CS: Yes, but see solicitation at 9A RTB: Possible CS: Yes, but see solicitation at 9A , supra. RTB: Possible CS: Yes, but see solicitation at 9A , supra. RTB: Possible CS: Yes; but see solicitation at 9A RTB: Possible CS: Yes, but see solicitation at 9A RTB: Possible Part II, B: RCW Quick Reference Chart 134

149 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): Class C Felony Class C Felony Gross Misdemeanor Class C Felony (1)(a), (b),(c) Class C Felony Burn statute. Delivery of substance in lieu of controlled substance. Possession of controlled substance Possession of forty grams or less of marihuana Involving a person under eighteen in unlawful controlled substance transaction Unlawful distribution & dispense by licensed practioner Drug Trafficking: Possible, despite good arguments to contrary; but see solicitation at 9A offering for sale should be equivalent to solicitation. Fraud: Yes if loss to victim = $10k or more. Likely Other Grounds CS: Possible, despite good arguments to contrary; but see solicitation at 9A ; also offering for sale should be equivalent to solicitation. RTB: Possible Drug Trafficking: No Not likely CS: Yes, but see solicitation at 9A ; or FFOA exception. RTB: Not likely Drug Trafficking: No Not likely CS: Yes, but see solicitation at 9A ; FFOA exception; and exception for single offense of less than 30 gms. RTB: Not likely Drug Trafficking: Yes, but not, if limited to solicit ; see solicitation at 9A COV: YES if based on threaten & if sentence = 1 year or more. Yes but if limited to solicit unclear & possibly not CS: Yes; but not, if limited to solicit[ing]; solicitation at 9A RTB: Possible Drug Trafficking: Yes Likely CS: Yes RTB: Likely (1)(d), (e) Class C Felony (1)(f) Class C Felony Class C Felony Class A,B Felony Unlawful distribution & dispense by licensed practioner Maintaining Place for drug use/sale Obtaining Drugs through prescription/registration fraud Distribution to persons under age eighteen. Drug Trafficking: Yes These offenses are analogous to 21 U.S.C. 842(a(5), and (6)). Drug Trafficking: Yes if for sale of drugs; no fed. analog or trafficking element if use only. Drug Trafficking: Yes Fraud or deceit: Yes if loss to victim = $10k or more. Likely Likely Yes CS: Yes RTB: Possible CS: Likely RTB: Likely CS: Yes RTB: Yes Drug Trafficking: Yes Yes CS: Yes RTB: Yes Part II, B: RCW Quick Reference Chart 135

150 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): Felony Class C Felony (1) Simple Misdemeanor (2) Simple Misdemeanor (4) Simple Misdemeanor Civil infraction Class B Felony Class C Felony Class B Felony Class B,C Felony Class C Felony Conspiracy Sell for profit any controlled substance or counterfeit substance in schedule I Use of drug paraphernalia Deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia Advertisement of paraphernalia Drug paraphernalia -- Selling or giving Controlled substances homicide Counterfeit substances prohibited Possession of ephedrine with intent to manufacture methamphetamine Manufacture, distribute, or possess with intent to distribute, an imitation controlled substance Unlawful use of building for drug purposes -- Liability of owner or manager Drug Trafficking: Yes Attempt & Conspiracy: Yes Likely Other Grounds CS: Yes RTB: Likely Drug Trafficking: Yes Yes CS: Yes RTB: Yes (B) Drug Trafficking: Yes for any use of paraphernalia related to manufacture or trafficking. No, if ROC shows use only for personal ingestion, etc. Possible; Yes if linked to manufacture or trafficking Drug Trafficking: Yes Yes CS: Yes RTB: Yes CS: Yes even if just use. RTB: Likely unless ROC shows use only for personal ingestion, etc. Drug Trafficking: Yes Possible CS: Yes RTB: Possible Drug Trafficking: No No CS: No RTB: Possible Drug Trafficking: Yes Yes CS: Yes COV: Not likely RTB: Yes Drug Trafficking: Yes- both Yes CS: Yes subsections have fed. RTB: Likely analogs in the CSA: 21 U.S.C. 841(a)(2)&843(5) Fraud or deceit: Possible if loss to victim = $10k or more Drug Trafficking: Yes Yes CS: Yes RTB: Yes Drug Trafficking: Likely - but good arguments to contrary; but see solicitation at 9A ; also offering for sale of (3) may be equivalent to solicitation; (M) Fraud or deceit: Possible, if loss to victim = $10k or more - likely Drug Trafficking: Likely but if 9A solicitation is not possible, possible defense where ROC shows storing or giving away (vs. other offenses). Yes Likely CS: Likely despite good arguments to contrary; but see solicitation at 9A ; also offering for sale of (3) may be equivalent to solicitation. RTB: Likely CS: Likely RTB: Likely Part II, B: RCW Quick Reference Chart 136

151 RCW Section: Offense: Aggravated Felony (AF): Crime Involving Moral Turpitude (CIMT): Class C Felony Class C Felony Unlawful fortification of building for drug purposes Unlawful use of fortified building Drug Trafficking: Likely Drug Trafficking: Likely but if 9A solicitation is not possible, possible defense where ROC shows storing or giving away (vs. other offenses). Drug Trafficking: Likely Drug Trafficking: Likely, but if 9A solicitation is not possible, possible defense where ROC shows storing or giving away (vs. other offenses). Likely Yes Other Grounds CS: Likely RTB: Likely CS: Likely RTB: Likely Part II, B: RCW Quick Reference Chart 137

152 C. Quick Guide to Cancellation of Removal for Legal Permanent Residents (LPRs) If your client is a legal permanent resident (LPR) (i.e., has a green card ), then this may help you find out if your client would be eligible for Cancellation of Removal for Certain Permanent Residents, if found to be removable. Despite being deportable under the criminal grounds, qualifying permanent residents who are put into removal proceedings are eligible for the general cancellation of removal waiver, and if is granted they preserve their legal resident status. However, conviction of any aggravated felony is a bar to cancellation. This waiver is only available from the Immigration Judge, and thus must be applied for while in removal proceedings. This means there is a good chance the person will be detained during the proceeding. 318 The waiver is discretionary, and can be denied even though the person was eligible to apply. There are three main statutory requirements, the legal permanent resident must: (1) ha[ve] been an alien lawfully admitted for permanent residence for not less than 5 years, 319 (2) ha[ve] resided in the United States continuously for 7 years after having been admitted in any status, 320 and (3) ha[ve] not been convicted of any aggravated felony. 321 Insufficient residence time in the U.S., or a conviction for an aggravated felony at any time, are the most common bars to this waiver, but there are some others. 322 (If your client originally got her papers through suspension of deportation; or has previously received cancellation 323 or the pre waiver known as 212(c) she is ineligible for cancellation now.) 318 Most but not all immigrants charged as removable under the criminal grounds will also be subject to mandatory detention. See 8 USC 1226(c)(1); INA 236(c)(1) U.S.C. 1229b(a)(1); INA 240A(a)(1) U.S.C. 1229b(a)(2); INA 240A(a)(2) U.S.C. 1229b(a)(3); INA 240A(a)(1) U.S.C. 1229b(c); INA 240A(c). 323 That includes the waiver discussed here, and two other forms of cancellation mainly designed to provide relief to non-citizens without criminal convictions. 8 U.S.C. 1229b(b)(1&2); INA 240A(b)(1&2). Part II, C: Quick Guide to Cancellation or Removal of LPR s 138

153 Be aware that the 7-year continuous residence requirement is subject to a peculiar additional requirement the stop-time rule. 324 The seven years begin to run from the date of lawful admission in any status. (Your client could have come in as a student or visitor and then gotten her residency, and that original admission should count). It ends when the alien is served a notice to appear that begins removal proceedings, or when the alien has committed a criminal offense referred to in the criminal grounds of inadmissibility, that makes her removable. This means that, even though you may have been in the US after a legal admission for more than 7 years, commission of some crimes will stop the 7-year clock (e.g., CIMTs) but others (e.g., firearms; DV offenses) will not. 325 For example: an offense that causes deportability only under the firearms or DV ground does not stop the clock for purposes of acquiring the seven years residence required for cancellation. (However, a firearms or DV offense that also is a crime involving moral turpitude, such as assault with a firearm, would stop the clock if the person became inadmissible or deportable under the moral turpitude ground.) If you are a WDA member and are trying to preserve eligibility for cancellation for an LPR client, who you think is or is going to become deportable despite your best efforts, please feel free to contact the WDA Immigration Project to help figure this out. Finally, aside from needing to be statutorily eligible, the cancellation of removal eligibility is a discretionary waiver. The seriousness of the offense is weighed against the immigrant respondent s positive factors, or equities. As the offense becomes more serious, greater countervailing equities may be needed to balance the seriousness of the adverse factors. Rehabilitation, including expression of remorse for criminal conduct, is among the most important of these equities. Other equities include long-term residence in the U.S., family and community ties, payment of child support, recentness of the offense and other criminal history, health problems, evidence of psychological or economic hardship, and many others. Your client will have to testify and can expect to be put under a microscope. Documents that cannot be used to establish deportability, such as police reports, can still be examined in the discretionary or relief phase. ****** INA 240A, 8 U.S.C. 1229b, Cancellation of Removal; Adjustment of Status (a) Cancellation of Removal for Certain Permanent Residents The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien: USC 1229b(d); INA 240A(d). The continuous residence requirement is also waived for an LPR who served 24 months on active duty in the armed forces and was honorably separated INA 240A(d)(3), 8 USC 1229b(d)(3). 325 See 8 USC 1229b(d); INA 240A(d). That section provides that a clock-stopping offense must be one that is referred to in 8 USC 1182(a)(2); INA 212(a)(2). Because that section does not include a firearms offense, such an offense does not stop the clock. Matter of Campos-Torres, 22 I&N Dec (BIA 2000). Part II, C: Quick Guide to Cancellation or Removal of LPR s 139

154 (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony. (c) Aliens Ineligible for Relief (6) An alien whose removal has previously been cancelled under this section or whose deportation was suspended under section 244(a) or who has been granted relief under section 212(c), as such sections were in effect before the date of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of (d) Special Rules Relating to Continuous Residence or Physical Presence (1) Termination of Continuous Period For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end: (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 239(a), or (B) when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest. (3) Continuity Not Required Because of Honorable Service in Armed Forces and Presence upon Entry into Service The requirements of continuous residence or continuous physical presence in the United States under subsections (a) and (b) shall not apply to an alien who: (A) has served for a minimum period of 24 months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and (B) at the time of the alien's enlistment or induction was in the United States. Part II, C: Quick Guide to Cancellation or Removal of LPR s 140

155 Appendix A WDA s Immigration Project - Intake Questionnaire This information is confidential and protected by attorney-client privilege. For technical assistance, please provide the following information to Jonathan Moore by or telephone at: Information About You [email protected] telephone: (206) Your ame: Date of Inquiry: Relationship to oncitizen Defendant: (e.g. defense attorney): Agency or Firm Telephone County address Information About the oncitizen Defendant 1. Client s country of origin. 2. Client s current immigration status. OTE: some possibilities are: Refugee/Asylee; Undocumented; Lawful Permanent Resident (LPR) (greencard holder). 3. If client has lawful status, how and when did s/he get it? (E.g. Client entered the U.S. in 1981 as a refugee from Cambodia; client got greedcard through her U.S. citizen spouse in 1993; client entered on a toursist visa.) 3. Client s current charge and any offers. 4. Client s criminal history. Include convictions, sentence (imposed and suspended) and juvenile history. 5. If possible list client s immediate relatives (spouse, parent(s) and/or child(ren)) who are U.S. citizens or lawful permanent residents (greencard holders). Appendix A: Expanded Immigration Questionnaire 141

156 Immigration Questionnaire - Expanded Version For all non-citizen defendants Purpose: To obtain the facts necessary for an immigration expert to determine current immigration status, possible immigration relief, and immigration consequences of a conviction and. Documents: Photocopy any immigration documents/passport. Criminal History: Rap sheets and possible current plea-bargain offenses needed before calling. Note: While completing this questionnaire, on a separate sheet of paper create one chronology showing dates of criminal acts and convictions as well as the immigration events discussed in the questionnaire. YES NO Client's Name Date of Interview Immigration Hold ( ) Client's Immigration Lawyer Telephone Number Client s DOB 1. Entry: Date first entered U.S.? Visa Type: Significant departures: Date: Length: Purpose: Date last entered U.S.? Visa Type: Relief: Undocumented persons here for 10 yrs with citizen or LPR family might be eligible for non-lpr cancellation. See CCLI Immigration Status: Lawful permanent resident? YES NO If so, date client obtained green card? Relief: Consider cancellation of removal for long-time residents; See CCLI Other special immigration status - circle any that apply: (refugee) (asylee) (temp. resident) (work permit) (TPS) (Family Unity) (ABC) (undocumented) Visa - type : Date obtained? Did anyone ever file a visa petition for you? YES NO If so, name and #: Date:. Appendix A: Expanded Immigration Questionnaire 142

157 Type of visa petition: Was it granted? YES NO 3. Prior Deportations: Ever been deported or gone before an immigration judge? YES NO Date? Reason? Do you have an immigration court date pending? YES NO Date? Reason? 4. Prior Immigration Relief: Ever before received a waiver of deportability [ 212(c) relief or cancellation of removal] or suspension of deportation? YES NO Which: Date: 5. Relatives with Status: Do you have a U.S. citizen (parent), (spouse), (childs DOB(s) ), (brother) or (sister)? Do you have a lawful permanent resident (spouse) or (parent)? YES Relief: Consider family immigration, see CCLI NO 6. Employment: Would your employer help you immigrate (only a potential benefit to professionals)? YES NO Occupation: Employer's name/number: 7. Possible Unknown U.S. Citizenship: Were your or your spouse's parent or grandparent born in the U.S. or granted U.S. citizenship? YES NO Were you a permanent resident under the age of 18 when a parent naturalized to U.S. citizenship? YES NO 8. Have you been abused by your spouse or parents? YES NO Relief: Consider VAWA application, see CCLI In what country were you born? Would you have any fear about returning? YES NO Why? Relief: Consider asylum/withholding, or if recent civil war or natural disaster, see if entire country has been designated for TPS. See CCLI , 7. Appendix A: Expanded Immigration Questionnaire 143

158 10. Are you a victim of serious crime or alien trafficking and helpful in investigation or prosecution of the offense? YES NO Appendix A: Expanded Immigration Questionnaire 144

159 Appendix B Immigration Safe Deferred Adjudication Agreements The immigration statute contains a definition at 8 U.S.C. 1101(a)()(A), which states in relevant part: The term conviction means, with respect to an alien 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. The crux of the issue here is what constitutes a conviction for immigration purposes. In short, even though the deferral scheme may allow for a dismissal under Washington state law of the offense(s), any deferral scheme which requires the defendant, at the time of the deferral, to agree to admissibility of the police report, and/or stipulate to facts and/or enter a guilty plea puts a non-citizen at risk that the deferral scheme will be a conviction for immigration purposes regardless of whether the case is subsequently dismissed by the Court after defendant complies with the condition(s). In the case Matter of Roldan, Int. Dec (BIA 1999), the Board of Immigration Appeals interpreted the statutory language extremely broadly such that any admission of guilt will constitute a conviction in perpetuity for immigration purposes. The recent Ninth Circuit decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) tempers this broad interpretation only for first-time simple possession and lesser drug offenses. Meanwhile, as a practical matter, the DHS treats virtually all diversionary schemes as convictions for immigration purposes where, at a minimum, the police report was admitted into evidence at the time of the deferral and/or the defendant stipulated to facts. As an alternative, non-citizen defendants could agree to a deferral scheme that was structured as follows: Rather than admission of the police report at the time of the deferral, non-citizens would agree to waive their right to object and/or contest ANY evidence presented at any subsequent violation/revocation hearing and agree that the judge will review the evidence presented at that time (which would be the police report) and make a decision as to her/his guilt based solely on that evidence. Thus, it would be understood at the time that the deferral scheme is agreed upon by the parties, that the prosecutor would present the police report at a subsequent violation/revocation hearing if the defendant does not comply with conditions. However, if the defendant complies with the conditions, the case is dismissed without any admissions by the defendant and the police report will not have been entered into evidence for purposes of determining guilt. This will (hopefully) avoid the offense being deemed a conviction for immigration purposes. Appendix B: Immigration Safe Deferred Adjudication Agreements 145

160 Alternative Language for Pre-Trial Diversion Agreements/SOCs [NOTE: If boilerplate forms are used, it is necessary to cross-out/eliminate language referencing admissions or stipulations of guilt/police reports/facts and substitute in the following language.] I understand that I have a right to contest and object to evidence presented against me. I give up the right to contest and object to any evidence presented against me as to my guilt or innocence regarding the underlying charge at any future hearings if I fail to comply with the conditions of this agreement. I also understand that I have the right to present evidence on my own behalf. I give up the right to present evidence on my own behalf as to my guilt or innocence regarding the underlying charge. I understand that if I do not comply with the conditions of this agreement, evidence will be presented against me at a future hearing and I understand that the judge will read and review that evidence in determining my guilt or innocence. Appendix B: Immigration Safe Deferred Adjudication Agreements 146

161 Appendix C Additional Resources In addition to the resources provided by WDA s Immigration Project, the following sources also provide information concerning the immigration consequences of crimes. A. Online Resources Board of Immigration Appeals (BIA) Decisions This website can be accessed from a good government website. Go to Click on virtual law library and look for BIA/AG administrative decisions. Law Offices of Norton Tooby Norton Tooby s website offers a very valuable collection of archived articles and a free newsletter. Other services, including constant updating of Mr. Tooby s books, are offered for a small fee. Go to Immigrant Legal Resource Center This website offers material on a range of immigration issues, including a free downloadable manual on immigration law affecting children in delinquency, dependency and family court, and information about immigration applications for persons abused by U.S. citizen parent or spouse under the Violence Against Women Act (VAWA). Go to National Immigration Project of the National Lawyers Guild This website offers practice guides and updates on various issues that can affect criminal defendants. The National Immigration Project provides information and a brief bank on immigration and criminal issues, on VAWA applications for persons abused by citizen or permanent resident spouse or parent, and applications under the former 212(c) relief. The Project also will post a chart of immigration consequences of federal offenses. Go to New York State Defenders Association The New York State Defenders Association website has excellent practice guides as well as a chart of immigration consequences of New York offenses. Go to National Defending Immigrants Project The National Defending Immigrants Project is located at the National Legal Aid and Defender Association and posts information about criminal defense of immigrants. Among other resources the NLADA website provides links to charts similar to this one, showing immigration consequences of offenses under New York, New Jersey, Florida, Texas and Illinois law. Go to Appendix C: Additional Resources 147

162 B. Books & Written Materials Immigrant Legal Resource Center The ILRC publishes California Criminal Law and Immigration, by Katherine Brady, author of this chart and notes, and an immigration attorney for the last twenty years. It is a comprehensive and in-depth analysis of California criminal laws and immigration. It also discusses eligibility for immigration relief, categories of immigration penalties, and plea strategies. The 2004 edition is available in May To order publications, or to a list of other publications, including those written for non-immigration attorneys, go to publications at or contact the Immigrant Legal Resource Center, 1663 Mission St., Suite 602, San Francisco, CA 94103, tel , fax Law Offices of Norton Tooby A criminal practitioner of thirty years experience who has become an expert in immigration law as well, Norton Tooby has written several books that are national in scope. Criminal Defense of Non-Citizens includes an in-depth analysis of immigration consequences and moves chronologically through a criminal case. Aggravated Felonies and Crimes Involving Moral Turpitude provide general discussion of these areas, and also discuss and digest in chart form all federal and administrative immigration opinions relating to these categories. Other books include studies of means of obtaining postconviction relief under California law, and nationally. Go to or call , fax National Immigration Project, National Lawyers Guild The National Immigration Project publishes a comprehensive and encyclopedic national treatise, Kesselbrenner and Rosenberg, Immigration Law and Crimes. To order, call West Group at C. Immigration Attorney Referrals for Washington State These attorneys are private immigration practioners. While they are all based in the Seattle/Tacoma/Olympia area, they all represent noncitizens and their families throughout the state of Washington. All of these attorneys have considerable expertise in the confluence between immigration law and criminal law. All are members of the Washington State Chapter of the American Immigration Lawyers Association. Vicky Dobrin and Hilary Han Law Offices of Dobrin & Han, Seattle Telephone: Website for contacts and information: Robert Gibbs, Robert Pauw, Signe Dortch & Chris Strawn Law Offices of Gibbs, Houston & Pauw, Seattle, WA Telephone: Website for contacts and information: Appendix C: Additional Resources 148

163 Carol Edward Law Offices of Carol Edward, Seattle, WA Telephone: For Carol Edward: for Eric Lin: Dan Smith MacDonald, Hoague & Bayless, Seattle, WA Telephone: Website for contacts and information: Karl Hack Law Offices of Karl Hack, Olympia, Washington telephone: Website for contacts and information: Glen Prior Prior Law Offices, Fife/Tacoma, WA Telephone: Bart Stroupe Law Offices of Bart Stroupe, Seattle, WA Telephone: The Northwest Immigrant Rights Project (NWIRP) Website for contacts and information: NWIRP is a nonprofit organization that provides direct representation to low-income noncitizens and their families on immigration-related matters. NOTE: Due to the tremendous need for their services and limited resources, NWIRP can only provide direct representation to a small percentage of noncitizens who need it. NWIRP has two offices in Washington State: NWIRP Seattle Office NWIRP Yakima Valley Office th Avenue, Seattle, WA P.O. Box 270, Granger, WA Tel: Tel: Appendix C: Additional Resources 149

164 CONCLUSION 326 [T]he procession moved on, three of the soldiers remaining behind to execute the unfortunate gardeners, who ran to Alice for protection. 'You shan't be beheaded!' said Alice, and she put them into a large flower-pot that stood near. The three soldiers wandered about for a minute or two, looking for them, and then quietly marched off after the others. --- Alice in Wonderland, Lewis Carroll There is no public defender or court-appointed counsel, when an immigrant faces the Department of Homeland Security trial attorney and an Immigration Judge at a deportation hearing. Nor do the criminal rules of evidence apply. Probably, she or he will be in jail for the duration of the proceeding. A public defender or criminal defense lawyer may be the last chance a non-citizen has to be represented, often the last chance to ever talk to a lawyer. That s why it s important to get it right. 326 Tut, tut, child! said the Duchess. Everything's got a moral, if only you can find it. - Alice in Wonderland, Lewis Carroll Conclusion 150

165

166 Washington Defender Association 110 Prefontaine Pl. S. Suite 610 Seattle, WA (206)