Immigration and Washington State Criminal Law

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

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

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.

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.

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

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 1999. 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: defendimmigrants@aol.com Telephone: 360-732-0611 Jonathan Moore, resource person Email: jonathan@defensenet.org Telephone: 206-726-3332 WDA Website: http://www.defensenet.org Mailing Address: 810 Third Avenue, Suite 201, Seattle, WA 98104 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: http://www.defensenet.org. 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 206-623-4321 or go to http://www.defensenet.org/form. ii

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

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...5 1. U.S. Citizen...5 2. Noncitizen or Alien...6 B. Step Two: Determine Defense Goals for Your Noncitizen Client...8 1. Defense Goals for Undocumented Client...8 2. Defense Goals for Client with Lawful Immigration Status...14 3. Defense Priorities Where Client s Immigration Status Is Unclear...15 C. Step Three: Understanding Crime-Related Provisions of Immigration Law...16 1. Crime-Related Deportation Grounds...16 2. Crime-Related Inadmissibility Grounds...19 3. Comparing Grounds of Deportability and Inadmissibility...21 4. 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...41 1. Crimes Involving Moral Turpitude (CIMT) as Grounds for Inadmissibility...41 2. Crimes Involving Moral Turpitude (CIMT) as Grounds for Deportation...41 3. Failure to Appear Offenses...42 4. Racketeer Influenced Corrupted Organization (RICO) Offenses...42 iv

D. Suspended Sentences and Probation...42 E. Other Sentences and Dispositions...45 1. Concurrent Sentences...45 2. Indeterminate Sentence...45 3. Sentence Enhancements...45 4. Community Custody...46 5. First Time Offender Waiver (FTOW)...46 6. Drug Offender Sentencing Alternative (DOSA)...47 7. Special Sex Offender Sentencing Alternative (SSOSA)...48 8. Work Ethic Camp (WEC)...48 9. Reduction or Commutation of a Sentence...48 10. Juvenile Sentences...48 11. Civil Commitments...49 12. 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...52 1. Identifying a Divisible Statute...52 2. Record of Conviction: Determining the Elements of the Offense...53 3. 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...58 1. Petty Offense Exception...58 2. Youthful Offender Exception...58 3. Inadmissible for Making Formal Admission of Crime Involving Moral Turpitude...58 Chapter Six: Drug Offenses...60 A. Overview of Immigration Penalties for Drug Offenses...60 1. Aggravated Felony...60 2. Definition of Illicit Trafficking as an Aggravated Felony...60 3. Deportability Grounds...61 4. Inadmissibility Grounds...61 B. Simple Possession or Less...62 1. Minor Drug Offense...62 2. Possession of Less than 30 grams of Marijuana...62 3. Felony Simple Possession...62 4. First Conviction for Simple Possession...63 5. Drug Addiction and Abuse and Drug Court...64 6. Drug Paraphernalia Offenses...65 7. Case Examples...65 8. Defense Strategies for Low Level Drug Offenses...66 C. Drug Trafficking Offenses and Strategies...67 1. Trafficking Provisions...67 2. Counterfeit Provisions...68 3. Solicitation to Deliver or Manufacture Controlled Substance...68 4. Rendering Criminal Assistance...69 5. Delivery of Substance in Lieu of Controlled Substance...69 6. Controlled Substance Not Identified...70 7. Inadmissible for Reason to Believe Assisted Drug Trafficking...70 8. Case Examples...71 v

Chapter Seven: Firearms and Other Weapons Offenses...73 A. Firearms Offenses as Grounds for Deportation...73 1. The Firearms Ground of Deportation...74 2. Definition of Firearms and Destructive Devices...74 3. Sentence Length for Firearms Offense Irrelevant...75 B. Firearms Offenses That Are Aggravated Felonies...75 1. Trafficking in Firearms or Destructive Devices...75 2. Other Firearms Offenses...76 3. Crimes of Violence...78 4. Attempt or Conspiracy Convictions...78 C. Additional Safer Pleas & Strategies for Firearms Cases...79 1. Sanitizing the Record of Conviction...79 2. Malicious Mischief as an Alternative...79 3. Negligent Assault...80 Chapter Eight: Domestic Violence, Stalking, Crimes against Children and Prostitution Offenses...81 A. Domestic Violence as a Ground of Deportation...81 1. Definition of Domestic Violence as Ground of Deportation...81 2. Noncitizens in Danger of Deportation for Domestic Violence Convictions...81 3. Evidence Needed to Establish Requisite Domestic Relationship...82 4. 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...90 1. Obtain a Sentence of Less than One Year in Non-Domestic Violence Cases...90 2. Pleas to Assault in the Third Degree...90 3. Pleas to Assault in the Fourth Degree...90 4. Plea to Subsections that Do Not Involve the Use or Threat of Force...91 5. Charges of Harassment...91 Chapter Ten: Burglary, Theft and Fraud Offenses...93 A. Burglary...93 1. Burglary as an Aggravated Felony...93 2. Burglary as a Crime Involving Moral Turpitude...94 B. Theft and Stolen Property Offenses...94 1. Theft as Aggravated Felony...94 2. Theft as a Crime Involving Moral Turpitude...95 3. Stolen Property Offenses...96 4. Stolen Property Offenses as Crimes of Moral Turpitude...96 C. Fraud Offenses...97 1. Fraud Resulting in Loss to Victim of $10,000 or More...97 2. Fraud Constituting Aggravated Felony Theft with Sentence of One Year or More...99 D. Pleas and Strategies for Fraud, Theft or Burglary...100 1. Criminal Trespass in the First or Second Degree...100 2. Malicious Mischief...100 3. Possession of Burglary Tools...100 Chapter Eleven: Driving Offenses...102 A. Immigration Law and Driving Offenses Generally...102 vi

B. Safer Pleas and Strategies for Driving Offenses...102 1. Driving Under the Influence...102 2. Malicious Mischief...103 3. Disorderly Conduct...103 4. Vehicular Assault per DUI prong...103 5. Reckless Driving...103 6. Reckless Endangerment...104 Chapter Twelve: Alternate Pleas with Less Severe Immigration Consequences...105 A. Introduction...105 B. Rendering Criminal Assistance as a Substitute Plea...105 C. Safer Pleas for Violent or Sexual Offenses...106 1. Third and Fourth Degree Assault...107 2. Arguing Simple Assault Is Not a Crime of Violence...107 3. Sexual Motivation Enhancement/Communication with a Minor for Immoral Purposes.107 4. Unlawful Imprisonment...109 D. Sentence of 364 Days or Less...109 E. Using Anticipatory Offenses Step-Down to Avoid Deportability for Attempted Theft 3..109 F. Clients Who Don t Know They Are Citizens...110 H. Compromise of a Misdemeanor...110 I. Aiding and Abetting Offenses...111 Part II: RCW Quick Reference Chart for Determining Immigration Consequences of Selected Washington State Offenses...114 An RCW Quick Reference Chart...116 A. How to Use This Chart...116 1. The Chart An Overview...116 2. Reading the Chart...117 3. Table of Abbreviations...118 B. The RCW Quick Reference Chart for Determining Immigration Consequences...119 C. Quick Guide to Cancellation of Removal for Legal Permanent Residents (LPRs)...138 Appendix A: WDA s Immigration Project Questionnaire...141 WDA s Immigration Project Intake Questionnaire...Error! Bookmark not defined. Immigration Questionnaire - Expanded Version...142 Appendix B: Immigration Safe Language for Agreements...145 Immigration Safe Deferred Adjudication Agreements...145 Alternative Language for Pre-Trial Diversion Agreements/SOCs...146 Appendix C: Additional Resources...147 A. Online Resources...147 B. Books & Written Materials...148 C. Immigration Attorney Referrals for Washington State...148 Conclusion............150 vii

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

Chapter 1: Determining Immigration Consequences and Establishing Defense Goals 2

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

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

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, 2001. 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 1431. 4 3 8 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

The best, most efficient way to obtain proof of acquired citizenship is to apply for a U.S. passport. See http://travel.state.gov/passport/passport_1738.html 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

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