Introduction to Analyzing Immigration Consequences of Crimes PRESENTERS IMMIGRATION LAW AND THE IMPACT OF CRIMES

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1 Introduction to Analyzing Immigration Consequences of Crimes Dallas, TX March 25, 2014 PRESENTERS Sarah Bronstein Oakland, CA Susan Schreiber Chicago, IL 2 IMMIGRATION LAW AND THE IMPACT OF CRIMES WHY IS THIS ISSUE SO IMPORTANT IN THE REPRESENTATION OF IMMIGRANTS? 3 1

2 THE SAGA OF SARAH B Sarah B., an immigration attorney with a national nonprofit agency, decided to take advantage of the sales at the Galleria. Realizing the she left her personal credit card at home, Sarah decided to use her agency American Express card, reasoning that her employer would want her to have some new clothes for work. Unfortunately, Sarah s employer didn t see it that way. 4 What happens next? Sarah is charged with theft, and the judge is considering a one year suspended sentence and probation, since this is her first offense. Sarah wants to know if this case will have any immigration consequences for her. 1. What if Sarah is a USC? 2. What if Sarah is an LPR? 3. What if Sarah is applying for residency? 4. What if Sarah is undocumented? 5. What if Sarah is an applicant for asylum? 6. What if Sarah is a refugee? 7. What if Sarah is applying for naturalization? 8. What if Sarah is applying for TPS? 9. What if Sarah is applying for DACA? 5 WHEN DO CRIMES COUNT? Inadmissibility Deportability Good Moral Character Discretion Remedies with specific crime bars (e.g. TPS, asylum, DACA) LPRS who travel abroad 6 2

3 RECOGNIZE THIS QUESTION? Have you ever, in or outside the U.S., been arrested, cited, charged, indicted, fined or imprisoned for breaking or violating any law or ordinance, excluding traffic violations? 7 RECOGNIZE THIS QUESTION? Have you, or any other person included in this application, ever been arrested or convicted of any criminal offense since last entering the United States? 8 RECOGNIZE THIS QUESTION? Have you or any member of your family ever been accused, interrogated, convicted and sentenced, or imprisoned in your country or any other country, including the U.S.? 9 3

4 RECOGNIZE THIS QUESTION? Have you ever been convicted of any felony or 2 or more misdemeanors committed in the U.S.? 10 RECOGNIZE THIS QUESTION? Have you ever been charged with committing, attempting to commit, or assisting in committing a crime or offense? 11 INADMISSIBILITY BASED ON CRIMINAL ACTIVITY : INA 212(a)(2) INCLUDES General crimes, including crimes of moral turpitude, drug violation offenses Multiple convictions Controlled substance trafficking Prostitution and commercialized vice 12 4

5 DEPORTABILITY BASED ON CRIMES: INA 237(a)(2) INCLUDES: GENERAL CRIMES, including crimes of moral turpitude, aggravated felony, high speed flight DRUG OFFENSES FIREARMS OFFENSES CRIMES RELATING TO DOMESTIC VIOLENCE, STALKING, VIOLATION OF PROTECTION ORDER 13 INADMISSIBLITY v. DEPORTABILITY Grounds differ Need to analyze whether client subject to inadmissibility, deportability or BOTH Inadmissibility Grounds apply to applicants for admission, EWI, certain returning residents Deportability Grounds apply to - person who entered with inspection 14 BASIC CONCEPT #1 CRIMES ALWAYS COUNT!!! 15 5

6 BASIC CONCEPT #2 Immigration law has its own definition of a conviction that doesn t depend on whether the case disposition is considered a conviction by the state in which it occurred. 16 IMMIGRATION LAW DEFINITION OF CONVICTION INA 101(a)(48) Court finds guilty or Court withholds adjudication and Judge/jury finds guilty Person admits guilt, or Person enters nolo contendere Person admits sufficient facts and Court orders punishment Example: Sally pleads guilty to a retail theft charge in Illinois and is sentenced to supervision. She also has to pay a fine and court costs. Under Illinois law, supervision is not considered a conviction. Does Sally have a conviction under immigration law? 17 WHAT S NOT A CONVICTION? The following are NOT convictions: Not guilty plea Nolle prossequi Dismissal Juvenile delinquency Conviction that is under direct appeal 18 6

7 JUVENILE OFFENSES Tim was 15 when he was arrested for stealing some clothes from Macy s. Tim was placed in juvenile delinquency proceedings in juvenile court. Tim pled guilty to petty theft and was given probation. Is this a conviction for immigration purposes? 19 BASIC CONCEPT #3 In certain circumstances, admitting criminal conduct can have immigration consequences Inadmissibility Good moral character Discretion 20 INADMISSIBILITY BASED ON ADMISSION Act is a crime (CIMT or drug offense) Advised of essential elements Clearly admits conduct Voluntary admission 21 7

8 INADMISSIBILITY BASED ON ADMISSION Karla attends her interview for adjustment of status and blurts out during the interview that she once stole a sweater from Walmart. Does that statement constitute an admission of a CIMT (crime of moral turpitude)? 22 BASIC CONCEPT #4: IT S COMPLICATED- PROCEED WITH CAUTION! A CRIME MAY HAVE IMMIGRATION CONSEQUENCES EVEN WHERE NO JAIL TIME WAS IMPOSED Lorena, an LPR from Mexico, was convicted of unlawful use of a firearm. She was sentenced to probation. Firearms offenses trigger deportability without regard to any sentence of incarceration. 23 IT S COMPLICATED PROCEED WITH CAUTION! A MINOR CRIME MAY NOT HAVE IMMIGRATION CONSEQUENCES THE FIRST TIME BUT MAY LEAD TO INADMISSIBILITY OR DEPORTABILITY IF THERE IS A SECOND OFFENSE David, an applicant for adjustment of status, was convicted of misdemeanor retail theft in Illinois, punishable by a maximum of 364 days incarceration. He was given a sentence of probation and his lawyer told him the conviction did not make him inadmissible. One year later, David was convicted of the same offense and was given the same sentence. NOW, this conviction does make David inadmissible. 24 8

9 IT S COMPLICATED PROCEED WITH CAUTION! THE SAME CRIME MAY HAVE DIFFERENT IMMIGRATION CONSEQUENCES DEPENDING ON THE SENTENCE IMPOSED Susan and Nancy, LPRs for the past 10 years, each decide to shoplift an IPOD from Target. Both are caught and charged with theft. Susan appears before a more lenient judge who just sentences her to probation. Nancy appears before a stricter judge who gives her a one year suspended sentence and a one year term of probation. Susan has no immigration consequences from her crime, but Nancy now has an aggravated felony conviction that makes her deportable. 25 IT S COMPLICATED PROCEED WITH CAUTION! THE SAME CRIME MAY HAVE DIFFERENT IMMIGRATION CONSEQUENCES DEPENDING ON THE IMMIGRATION STATUS OF THE NON- CITIZEN Juanita, an LPR for 16 years, was just convicted of felony theft and sentenced to two years of probation. Her sister Paloma, an applicant for adjustment of status, was also convicted of felony theft and received the same sentence as Juanita. Juanita isn t deportable for this offense, while her sister Paloma is affected by the same offense it makes her inadmissible. 26 WHAT YOU ALWAYS NEED TO KNOW Actual charge, including statutory cite Actual disposition Client s current status What client is seeking 27 9

10 HOTLINE ATTORNEY S LAMENT Is this enough info? Can this hotline caller be saved? Hi, this is Joanne from Chicago Catholic Charities. I have a client with two arrests for DV. He s applying to naturalize. Leave me a message. Thanks. 28 FIRST STEP: CLIENT INTERVIEW Use immigration form as your screening tool? Enough to ask whether your client has ever been convicted of a crime? What sorts of questions should you ask? 29 NEXT STEPS Consider FBI records check Consider state records check Obtain client s criminal record from police and court(s) Obtain copy of relevant criminal statute(s) Evaluate criminal record and the statute(s) to analyze immigration consequences 30 10

11 WHERE TO START LOOKING FOR RECORDS You interview Jorge, who tells you that he was arrested in Chicago in 2003 under his true name, that he was charged with retail theft, and that the charges were dismissed. What records should you get? You interview Tessa, who tells you that she was arrested three or four (or five) times when she lived in California and Nevada. She s not sure of the dates and she may have used an alias. What records should you get? 31 BASIC CONCEPT #5: YOU CAN HELP BY FINDING OUT THE FACTS Even though this is a complicated area of law, you can really help your clients as you start to learn about these issues if you 32 PRACTICE TIPS Question clients carefully about all prior police contacts Get FBI rap sheet, FOIA Get criminal records Delay applying for any benefits until you analyze impact of crime on eligibility Counsel any client charged with a crime to get immigration legal counseling in addition to criminal defense counseling 33 11

12 RESOURCES CLINIC Crimes e-learning course/clinic Immigration & Crimes Manual (BIA cases) Read BIA decisions and federal court cases National Lawyers Guild Immigration Project web site, publications ILRC publications (esp. 9 th Circuit book) Norton Tooby web site Questions? twitter.com/cliniclegal 415 Michigan Ave., NE Suite 200 Washington, DC national@cliniclegal.org facebook.com/cliniclegal 35 12