Mary Kramer, Law Offices of Mary Kramer, Miami, FL

Transcription

1 How a Criminal Conviction Will Impact Your Client s Future Immigration Status Mary Kramer, Law Offices of Mary Kramer, Miami, FL

2 Mary Kramer, Attorney at Law Miami, Florida **author, The Immigration Consequences of Criminal Activity: A Guide To Representing Foreign-Born Defendants (AILA pubs. 2009)**

3 First: STATUS The immigration law consequence(s) of a criminal conviction (or criminal activity) will often depend upon the STATUS of the client. Accordingly, the initial question should always be: how are you in this country and what is your immigration status?

4 Examples Of Different Statuses Lawful permanent resident status (the socalled green card holder, or resident ) If an individual is a permanent resident, helpful to check the card and determine the date of residency status.

5 Other Statuses - Asylee or refugee (asylum status granted) - Nonimmigrant visa holder (e.g., student, investor, executive manager or director of international company, professional worker, non-professional worker, entertainer, athlete, minister of religion) - K - visa holder (fiancée) - Or, undocumented illegal alien

6 NO STATUS: but there s hope Some individuals will have no status because they entered the country illegally, or, entered legally but then fell out of status ( overstayed the visa). Still, these are people who may be eligible to apply for adjustment of status, asylum, or some other benefit and will suffer detriment (in terms of future hopes) from a criminal conviction.

7 8 USC 1182 and 8 USC 1227 Two separate chapters of the law implicate removability and determine the immigration consequence of crime. Which chapter applies depends upon your client s STATUS ***Although these chapters are similar, they are not identical. Both chapters can be used to charge removability from the United States ***

8 8 USC 1182 (or, INA 212) These are grounds of inadmissibility : Persons who were paroled in, as opposed to lawfully admitted; or persons who entered unlawfully by crossing the border. Persons who have lawful status but travelled abroad, and are seeking re-admission. Note: travelling and applying for admission will change a person s legal posture!

9 8 USC 1227 (or, INA 237) These are grounds of deportability and apply to persons who are physically present in the United States pursuant to a lawful admission. They may be lawfully present and in status. Or, they may now be here illegally, but they were initially lawfully admitted.

10 Some Major Differences Between 1182 and 1227 To be deportable under 1227, an individual must have a final conviction. In comparison, to be inadmissible under 1182, an admission to the essential elements of a crime involving moral turpitude, or a reason to believe involvement in drug trafficking or money laundering is sufficient to charge inadmissibility, even without a conviction.

11 Additional Differences.... Under 1227: To be deportable for one crime involving moral turpitude, the offense must have occurred within five years of admission. In other words, an individual is not deportable for a single offense involving moral turpitude as long as the offense occurred over five years after admission. Under 1282: There is no five year window inadmissible at any time.

12 Under 1182: Additional Differences: There is no FIREARM ground of inadmissibility. There is no DOMESTIC VIOLENCE ground of inadmissibility. There is no AGGRAVATED FELONY ground of inadmissibility. Under 1227: A firearm conviction, and a domestic violence/stalking/ violation of protective order offense are grounds of deportability.

13 Definition Of Conviction The Immigration & Nationality Act contains its own unique definition of conviction at 8 USC 1101(a)(48). A conviction is an admission of guilt or no contest combined with some sort of punishment. NO ADJUDICATION OF GUILT BY A JUDGE OR JURY IS NECESSARY.

14 Examples Of Dispositions Which Qualify As Convictions A withhold of adjudication or deferred prosecution where there is a PLEA of no contest, some sort of program, restraint on liberty, probationary type period, fine, court costs, and upon successful completion, a dismissal of the charge. THIS IS A CONVICTION. A state ameliorative expungement similar to the FFOA. Note: in the Ninth Circuit Court of Appeals jurisdiction, a state expungement similar to an FFOA procedure is HONORED and is not a conviction. Unanswered question: is an expungement under the FFOA a conviction for immigration purposes?

15 Additional Information On Convictions - A record which is SEALED following a withhold or deferral remains a conviction; - A record which is expunged may still be a conviction, especially if it was an automatic sort of expungement for ameliorative purposes. - A limited or conditional pardon is still a conviction. - A full & unconditional pardon may still be a conviction. Pardons act like waivers of certain grounds of deportability, but do not cure grounds of inadmissibility.

16 Post-Conviction Relief A plea which is vacated on legal / statutory grounds will be honored (i.e., no longer a conviction); however it is important that the motion and the judgment identify a legal (as opposed to equitable) basis for the vacatur.

17 SUSPENSIONS OF SENTENCE A sentence which is suspended is still the sentence imposed for immigration purposes. The Immigration & Nationality Act does not honor suspended sentences. (This is important because many grounds of removability turn on the sentence of imprisonment imposed.) However, post conviction relief which vacates and modifies a sentence can be for ameliorative / equitable purposes and does not have to be on legal grounds.

18 Brief Introduction To Immigration Court Proceedings The Department of Homeland Security institutes removal proceedings. Immigration and Customs Enforcement, Customs and Border Protection, or Citizenship and Immigration Services can issue a NOTICE TO APPEAR, charging someone with removability. Case is scheduled before the Immigration Court, which is an administrative court under the DEPARTMENT OF JUSTICE. The Court has an automated court docketing number at Immigration court proceedings are formal and adversarial in nature, but removability is decided by a judge under extremely relaxed rules of evidence.

19 The Notice to Appear

20 A Bit More On Immigration Court If the charges are inadmissibility under 1182, the non-american citizen ( respondent ) has the burden of proof and persuasion. If the charges are deportability under 1227, the Department has the burden of proof and persuasion.

21 MANDATORY DETENTION Based on 8 USC 1226(c), most (though not all) individuals in removal proceedings for crime must be detained, no bond, during the course of proceedings. Many immigration courts are housed within detention facilities. Otherwise, hearings take place via video or the non- American citizen is transported to a court site for proceedings.

22 FBOP Coordinates With ICE Some prisons are designated for non-american citizens and in close proximity to an ICE facility, or conduct immigration hearings through the Institutional Hearing Program.

23 Detainers To pay or not to pay bail?

24 Classifications Of Crimes Under The Immigration And Nationality Act The INA classifies crimes into categories, or grounds. Common grounds include moral turpitude offenses, aggravated felonies, firearm offenses, prostitution offenses, controlled substance offenses.

25 Moral Turpitude Whether a crime qualifies as a moral turpitude offense depends first and foremost on the elements of the statute. Immigration law takes a categorical approach to analyzing crimes. A crime involves moral turpitude if there is a scienter of knowledge, willfulness, or specific intent. Negligence crimes do not involve moral turpitude. Crimes of recklessness may or may not involve moral turpitude depending on the actor s awareness of the risk. Recklessness is hence a gray area.

26 Common Moral Turpitude Crimes Battery and assault offenses where there is a specific intention to cause bodily harm, or aggravating circumstances such as the use of a weapon. (simple battery will normally not be considered an cimt; aggravated battery or battery with a deadly weapon may be)

27 Moral Turpitude Continued Robbery, burglary of a dwelling w/an underlying intention to commit a violent felony, carjacking, aggravated stalking, etc., are moral turpitude crimes.

28 Moral Turpitude Continued... FRAUD crimes, where there is an intent to defraud or deceive, are cimts. In comparison, possession crimes, such as possession of counterfeit securities, false drivers license, fake work permit, without an intent to use, are not cimts. False statements may or may not be cimts, depending on whether there is a material misrepresentation or intent to deceive.

29 Moral Turpitude Continued... THEFT crimes involve moral turpitude if the statute describes a permanent deprivation or taking. In some instances, a theft crime (if it describes a temporary appropriation) is not a cimt.

30 Drug trafficking & money laundering crimes Drug trafficking is a crime involving moral turpitude, according to case law Compare: simple possession of a controlled substance is not a cimt Money laundering where the statute describes knowledge of illegal funds is a crime involving moral turpitude; Compare: structuring transactions; failure to file currency reports; operating unlicensed currency transaction business found not to involve moral turpitude

31 Petty Offense Exceptions Both 1227 and 1282 contain petty offense exceptions which are similar but not identical. Basically, a single offense for a cimt for which the maximum penalty possible is less than one year (for 1227) or does not exceed one year (for 1282) will not cause removability.

32 Aggravated Felonies The worst category or classification of crime under the INA. In most (though not all cases) a conviction for an aggravated felony will result in automatic deportation.

33 Aggravated Felony Defined A list of offenses defined at 8 USC 1101(a)(43) Normally, the INA references a federal statute; comparable state statutes also qualify

34 Common Aggravated Felony Offenses Murder, rape, sexual abuse of a minor Controlled substance trafficking as defined by 18 USC 924(c) Certain federal firearm offenses, including possession of a firearm by a convicted felon and transporting or dealing in firearms

35 Common Aggravated Felonies THEFT, BURGLARY, or RECEIPT OF STOLEN PROPERTY, where the term of imprisonment is at least one year. CRIMES OF VIOLENCE as defined by 18 USC 16 where the sentence of imprisonment imposed is at least one year

36 Aggravated Felonies Continued Kidnapping offenses (18 USC 875, 8766, 877, 1202) Child pornography Racketeering / 1 year or more imprisonment imposed Prostitution enterprises Alien smuggling Passport fraud, counterfeiting, mutilation Commercial bribery, counterfeiting, forgery, trafficking in altered vin vehicles / 1 year or more imprisonment imposed

37 Aggravated Felonies Continued Perjury, obstruction of justice, bribery or witness or subornation of perjury / 1 year imprisonment or more imposed Re-entry after deportation after conviction for an aggravated felony Failure to appear to serve sentence if underlying offense punishable by more than 5 years in prison Failure to appear in court if underlying offense punishable by more than 2 years imprisonment

38 Aggravated Felonies Continued MONEY LAUNDERING in an amount over $10,000. CRIMES INVOLVING FRAUD OR DECEIT where loss to a victim exceeds $10,000. TAX EVASION in an amount over $10,000.

39 Aggravated Felonies Continued Attempts Or Conspiracies To Commit Any Of The Above Offenses

40 Aggravated Felony Consequences Mandatory Detention Barred from Most Form of Relief!

41 Controlled Substance Violations A controlled substance conviction makes an individual removable. In the removability context, there is an exception for a single offense of simple possession of less than 30 grams of marijuana. The exception for one simple possession less than 30 grams does NOT APPLY under The exception only applies to deportability.

42 Reason to Believe Under 1182, relating to persons applying for re-entry into U.S., or applying for a benefit (like adjustment of status to residency, asylum, or a visa), a reason to believe someone has been involved in c.s. trafficking is a ground of inadmissibility. Same for money laundering. Applies to spouses and children who have received $$benefit$$ from illicit trafficking or laundering.

43 Other Crimes Grounds of removability include: Prostitution enterprises Alien Smuggling Trafficking in persons

44 Domestic Violence A conviction entered after Sept. 29, 1996, involving domestic violence, stalking, child abuse, or violation of a protective order forms a ground of deportability under A crime of domestic violence involves an act of violence as described by 18 USC 16.

45 Firearm Offenses A firearms conviction is a basis of deportability under This includes even regulatory violations, or innocuous offenses such as CCF. The use or possession of a firearm must be an element of the offense, as opposed to an aggravating factor or sentence enhancement.

46 RELIEF / DEFENSES An individual who is subject to removal may be eligible for relief in the form of a waiver or some other benefit under the law. The law imposes statutory criteria to qualify. Waivers are also available to persons convicted of crime who are applying for adjustment of status to permanent residency (with DHS rather than the immigration court) Eligibility for relief often turns on the conviction & sentence imposed, which is where the criminal defense attorney can help in advance & knowledge of immigration law is key.

47 CANCELLATION OF REMOVAL under 8 USC 1229b A waiver of removability for crime, when the applicant is a lawful permanent resident. Requires 7 years of an ongoing residency prior to commission of the crime; Requires 5 years of lawful permanent resident status; Applicant cannot be convicted of an aggravated felony.

48 Waiver under INA 1182(h) FOR INDIVIDUALS CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE, PROSTITUTION OFFENSE, OR ONE OFFENSE SIMPLE POSS. LESS THAN 30 GRAMS MARIJUANA USUALLY APPLIED FOR WITH ADJUSTMENT OF STATUS TO PERMANENT RESIDENCY, BUT ALSO AVAILABLE IN IMMIGRATION COURT NOT AVAILABLE TO LPRS W/ AGG FELONY CONVICTION (different law in the 5 th Cir., 11 th Cir.)

49 ASYLUM & WITHHOLDING Asylum and withholding of removal are for persons who face persecution in their home country on account of race, religion, membership in social group, political opinion. Asylum leads to permanent residency; withholding does not. [8 USC 1158] Asylum not available to person convicted of aggravated felony. Withholding not available to person convicted of agg felony IF sentenced to over five years in prison (or drug trafficking offense) [8 USC 1231(b)(3)

50 Quick intro to Naturalization A lawful permanent resident convicted of crime jeopardizes eligibility for naturalization. Naturalization generally requires 5 years lawful permanent resident status, coupled with GOOD MORAL CHARACTER. Lesser period of residency required for persons married to U.S. citizens or for service in military. Criminal ACTIVITY or CONVICTION for crime involving moral turpitude interrupts good moral character. 180 days or more in prison interrupts good moral character.

51 Naturalization continued... Criminal ACTIVITY or CONVICTION for crime involving moral turpitude interrupts good moral character. 180 days or more in prison interrupts good moral character. After Nov. 29, 1990, an aggravated felony conviction is a permanent BAR to naturalization.

52 What A Criminal Defense Attorney Can Do? Keep a copy of the Immigration and Nationality Act handy and utilize for quick reference of the various grounds of removability, including the aggravated felony definition. Bring an immigration attorney on board.

53 Fashioning A Plea The goal of fashioning a plea is to either avoid, or ameliorate, immigration consequences. For example, a defense attorney can work to obtain a plea which though resulting in removability will set the client up to be eligible for relief.

54 Examples If the offense charged is FRAUD, and the loss exceeds $10,000., consider a THEFT offense, keeping the sentence of imprisonment below one year. For crimes of violence, negotiate a plea to less than one year imprisonment. Negotiate aggravated battery down to simple battery.

55 Fashioning a plea Negotiate a civil or side reimbursement of the victim or government; then, within the conviction record, keep the $loss$ below $10,000. This means fashioning a plea agreement, and plea colloquy statement, to specify less than $10,000 loss. Avoid attempt charges. Sever co-defendants where the loss attributable to them exceeds $10,000.

56 Fashioning a plea Look for crimes that do not involve intentional conduct (i.e. violence), such as negligence. Avoid statutes with a specific intent to deceive or defraud. For example, structuring to avoid a currency transaction report, or failure to file a currency report when transporting cash, unlicensed money transmission business, are crimes which do not involve moral turpitude and are not aggravated felonies.

57 fashioning a plea continued... REMEMBER: many aggravated felony convictions are based on a year or more sentence of imprisonment imposed; thus avoid the one year sentence for: theft violence racketeering passport offenses commercial bribery counterfeiting forgery perjury

58 Fashioning a plea... Avoid a conviction : Seek Diversion Programs That Do Not Involve Entering A Plea

59 Questions and Answers???