Good Moral Character and Criminal Issues in Naturalization

Transcription

1 Good Moral Character and Criminal Issues in Naturalization C. Lynn Calder (DL), Raleigh, NC Gus M. Shihab, Columbus, OH JoJo Annobil, New York, NY Imperfect Naturalization: Analyzing the Risks of Naturalizing Lawful Permanent Residents With Criminal Offenses Statutues, Regs & Manuals INA 316 Naturalization Statute INA 101(f) Definition of Good Moral Character 8 CFR 316 General Requirements for Naturalization Adjudicator s Field Manual Ch

2 Role of Lawyer Gather Data: Become Fully Informed About Client s Criminal History & Circumstances Research: Research & More Research Counsel: Advice Client Regarding Implications Managing the Client Client Perception Does Client Require Psychological/Psychiatric Treatment? Why Naturalize? Identify Alternative Immigration Strategies Gathering Information Naturalization Questionnaire Obtain Certified Records of Conviction Foreign Convictions Don t Wake Up A Sleeping Giant

3 Good Moral Character Only Convictions Matter November 29, 1990 Conviction Defined INA 101(a)(48) What about Expungement, Vacation, Suspension, Deferral, and Diversion. Statutory Period Can USCIS look outside the statutory period? Good Moral Character Adjudicator s Field Manual Permanent Bars (Murder - Aggravated Felony) Conditional Bars (CIMT, Controlled Substance, Incarceration, False Testimony, Prostitution, Illegal Gambling, and more... Discretionary Bars Evaluating Strategies Relief Application before USCIS? Doctrine of Prosecutorial Discretion The Danger of Mandatory Detention Consider Not Filing

4 Analysis of Risk and Burden of Proof Risk of Naturalization (INA 316) Applicant must prove eligibility from filing N-400 through admission to citizenship Eligibility includes consideration of GMC throughout lifetime! AFM ch. 73.6(a) and (d)(1) Analysis of Risk and Burden of Proof Risk of Naturalization, cont. Effect of probation, parole, suspended sentence Persuasive N-400s when no bar to GMC; AFM ch. 73.6(d)(3)(B), 8 CFR Analysis of Risk and Burden of Proof Risk of removal proceedings Burden on DHS to prove subject to ground of removal under INA 237 Risk of travel outside the U.S. Burden on LPR to prove admissible under INA 212 if seeking admission to U.S. see INA 101(a)(13)(C)

5 Reducing the Risk There s an App for That Affirmative relief prior to removal proceedings? Reducing the Risk Waiver under (former) INA 212(c) Eligibility requirements No relief if conviction after 04/01/1997 Plea agreement v. trial Comparable ground of inadmissibility [Matter of Blake, 21 I&N Dec. 722 (BIA 2005)] Reducing the Risk Cancellation of Removal for LPRs under INA 240A(a) Eligibility requirements Stop-time rule

6 Reducing the Risk Waiver under INA 212(h) Eligibility requirements Stand-alone 212(h) waivers Nunc pro tunc 212(h) waivers N-400 as Relief in Removal Proceedings 8 CFR (f) no termination of proceedings without Matter of Acosta-Hidalgo, 24 I&N Dec. 103 (BIA 2007) N-400 as Relief in Removal Proceedings 8 CFR (f) termination of proceedings if pending N-400 and prima facie eligibility for naturalization Matter of Acosta-Hidalgo, 24 I&N Dec. 103 (BIA 2007) IJ and BIA lack jurisdiction to determine prima facie eligibility

7 Appealing Denial of an N-400 Appeal of denial to USCIS INA 336(a), 8 CFR Review of denial in federal court de novo review by U.S. District Court; INA 310(c) and APA Permanent Bar to Good Moral Character /Trigger Removal INA 101(f); 8 CFR (b)(1)(i)&(ii) Murder Aggravated Felony on or after 11/29/1990 Automatic deportation with limited relief - INA 237(a)(2)(A)(iii) Aggravated Felony before 11/29/1990 Statutorily eligible for naturalization Filing will likely result in NTA Naturalization application will be denied for lack of jurisdiction INA 318

8 What Is an Aggravated Felony? Aggravated felony is a term defined by the INA 101(a)(43), 8 USC 1101(a)(43) Some examples of aggravated felonies include: Murder, rape or sexual abuse of a minor Illicit trafficking in a controlled substance Illicit trafficking in firearms/destructive devices/explosive materials Crime of violence w/ sentence of 1 year or more What Is an Aggravated Felony? Theft offense w/ sentence of 1 year or more Certain offenses related to prostitution Offense involving fraud or deceit where loss to victim(s) exceeds $10,000 An attempt or conspiracy to commit an offense counts as an aggravated felony. Aggravated felony INA 101(a)(43)(a-u) Temporary Bar to Good Moral Character/ May Trigger Removal INA 101(f); 8 CFR (b)(2)(i-v)-&(vii)

9 Examples of Temporary Bars Conviction of a crime of moral turpitude (exception single offense, not punishable by sentence of 1 year or more or prison sentence of more than 6 months) Conviction of two or more offenses with an aggregate sentence of 5 years Conviction of controlled substance violation (except single possession of 30 grams or less of marijuana) Examples of Temporary Bars Admission of commission of any of the above even if there was never a charge, arrest or conviction Conviction of two or more crimes involving gambling Confinement in a local, state or federal penitentiary for more than 180 days Prostitution and commercial vice Discretionary Bar to Good Moral Character/May Trigger Removal 8 CFR (b)(3)(iii) Firearm Domestic Violence Crime Against Child Violation of Order of Protection (After 9/30/1966)

10 What Constitutes a Conviction? INA 101(a)(48)(A), 8 USC 1101(a)(48)(A) The term conviction means, with respect to an alien, a formal judgment of guilt of the alien entered by a court, or, if adjudication of guilt has been withheld, where What Constitutes a Conviction? (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien s liberty to be imposed. What Constitutes a Conviction? INA 101(a)(48)(B), 8 USC 1101(a)(48)(B) 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

11 What Is Not a Conviction for Immigration Purposes? Youthful offender adjudication Juvenile delinquency Deferred adjudications and pre trial diversionary programs Nolle prosequi Violations and infractions Conduct Bar to Good Moral Character / Trigger Removal Unlawful Voting (exception each natural parent a USC, child permanently resided in US prior to age 16 and reasonably believed a citizen) False Claim to US citizenship (exception each natural parent a USC, child permanently resided in US prior to age 16 and reasonably believed a citizen) Alien Smuggling Drug Abuser/Addict Post Conviction Relief Matter of Roldan, 22 I&N Dec. 512 (BIA 1999) Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006)

12 Padilla v. Kentucky, 130 S.Ct (2010) Criminal defense counsel mandated by Sixth Amendment of US Constitution to advise criminal defendant of immigration consequences of guilty plea. Failure to advise or misadvise may result in claim for ineffective assistance of counsel. Silence is also deemed to be ineffective assistance. Where the risk is clear, advice must be accurate. Where risk is unclear, should advise of possible risk. Padilla v. Kentucky, 130 S. Ct 1473 (2010) To vacate conviction under Padilla must demonstrate: Counsel s assistance was deficient and defendant suffered prejudice because of deficiency (reasonable probability test) If vacate conviction and obtain dismissal or plead to an offense that does not bar showing of GMC may be able to naturalize Effect of Expungement on Naturalization Application 8 CFR (c)(3)(i-ii) Drug offenses no effect 2 CIMT s where one expunged no effect

13 Effect of Pardons - see, INA 237(a)(2)(A)(vi) Will cure A single or multiple CIMT s INA 237(a)(20)(A)(iii) Aggravated Felony - INA 237(a)(20)(A)(iii) Effect of Pardons on Naturalization 8 CFR (c)(2)(i-ii) Pardon prior to statutory period show reformation and rehabilitation of character Pardon during statutory period one CIMT or two or more crimes with aggregate sentence of 5 years, show extenuating and exonerating circumstances exist to establish GMC Questions & Answers

14 Special Thanks to the AILA Annual Conference WiFi Sponsor