Ann Benson Washington Defender Association s Immigration Project JJ Rollin Law Offices of Jeffery C. Gonzales David Shamloo The Law Office of N. David Shamloo
PRESENTATION ROADMAP The Categorical Approach Reinvigorated Overview of the framework Moncrieffe & Descamps reframe Analyzing Your Case The Four Key Questions Impacts on WA & OR Crimes Crimes Against Persons, Property & Drug Crimes Oregon Violations and Restraining Orders Practical Strategies for Representing Detained Clients
An inferior court had best respect what the [Supreme Court] says. rather than read between the lines. [W]e take its assurances seriously. If the Justices are just pulling our leg, let them say so. Sherman v. Community Consol. School Dist. 21 of Wheeling Tp., 980 F.2d 437, 448 (7th Cir. 1992).
CATEGORICAL APPROACH Legal framework used to determine whether a conviction triggers: Deportation grounds; Inadmissibility grounds; Bars to relief from removal. It s Your Best Defense!
RECENT BIA & CIRCUIT COURT DECISIONS Compromised integrity of this framework ; eroded its core principles; Resulting in countless unwarranted removals. E.g., Matter of Lanferman & US v. Aguila Montes De Oca
2013 SCOTUS RECALIBRATION Moncrieffe v. Holder US v. Descamaps Landmark legal victories: recalibrate categorical approach framework to original parameters Elements-based test, NOT factsbased test
MINIMUM CONDUCT TEST LIVES! TEST: Does the minimum conduct necessary to violate the statute match the generic immigration definition at issue? ADJUDICATOR S INQUIRY Whether conviction statute requires the State, in every case, to prove elements that match the elements of the generic immigration offense.
Elements Control Not Facts: MEANS VS. ELEMENTS Does not matter what your client did (facts); only what were elements of crime of conviction & minimum conduct necessary to meet them. What Is An Element? Those facts about a crime which must be proved to a jury beyond a reasonable doubt and about which the jury must agree by whatever margin is required to convict in the relevant jurisdiction. Matter of Dieuvu-Forvilus, BIA unpub. 10/3/13.
ELEMENTS CONTROL (NOT FACTS) Jury Instructions First best place to look for elements. State Supreme Court Caselaw Defines elements Examples: WA Assault 4 th degree common law definition Drug Possession -? (paulus argument?)
EXAMPLE WA ASSAULT 4 TH DEGREE DV Deportation Ground AF Crime of Violence Assault 4 th Minimum conduct = placing someone in apprehension of harm or offensive touching. Element of Both: COV under 18 USC 16 Offense has as an element use or threatened use of force against persons or property No use/threat of force Assault 4 th Degree cov NO RESORT TO RECORD OF CONVICTION
MODIFIED CATETORICAL APPROACH LIMITATIONS Review of Record of Conviction (ROC) : Only for statutes that set forth multiple, separately defined offenses, one of which would trigger generic immigration definition. Purpose : ONLY to identify which provision of statute was subject of the conviction. Elements Not Facts: Does not matter what your client did (facts); only what were elements of crime of conviction & minimum conduct necessary to meet them. EXAMPLE: RCW Assault 4 Elements are apprehension of unwarranted touching. Minimum conduct = offensive touching. No force required so never COV.
MISSING ELEMENT STATUTES Where conviction statute is missing and element of the generic definition, crime can CATEGORICALLY never match immigration provision. Example: Minor victim not an element of any WA general assault statutes. So, will never trigger COCA ground.
SCOTUS UNDERLYING RATIONALE BENEFIT OF THE BARGAIN Plea bargaining is not an act of grace by the State, but a contractual agreement where both sides obtain a benefit. US v. Fanco Lopez (also) Sanchez-Avalos v. Holder
CATEGORICAL APPROACH CONTROLS CIMT ANALYSIS Olivas-Mata: 9 th Cir. rejects Silva-Trevino s 3 rd step. CIMT analysis controlled by Moncamps cat. approach Example: WA theft, no intent to permanently deprive, so categorically not CIMT.
The Four Key Questions
THE CATEGORICAL APPROACH PRELIMINARIES When does it apply to my client s conviction? APPLIES: To determine whether conviction-based grounds of inadmissibility or deportation are triggered. DOES NOT APPLY: To conduct-based grounds: o o Reason to Believe Drug trafficking inadmiss. ground No-contact/protection order violations deport. ground Circumstance-specific provisions per Nijhawan. Loss amount for fraud agg felony provision
QUESTION #1 What is the generic definition (elements) of the immigration provision at issue? Defined by reference to statute? COV = crimes that match 18 USC 16 Defined by caselaw? 9 th cir./bia define theft as CIMT when there is 1. taking, 2. w/intent to permanently deprive.
QUESTION #2 Do the elements of the conviction statute categorically match the generic immigration definition? TASK: Critical to ID elements of conviction statute. TEST: What is the minimum conduct necessary to violate elements of criminal statute? Do these acts match generic definition? Defendant s actual conduct irrelevant.
Indivisible Statutes: QUESTION #2 CONT D Realistic Probability Test Sets forth only 1 unitary offense = indivisible Categorical match only where all elements necessary to prove conviction match generic definition If missing element, never categorical match. Must be RP that minimum conduct that could be prosecuted actually was/will be prosecuted under the statute. Statutory language alone meets RP test if it expressly reaches conduct in question. May shift BOP to your client.
QUESTION #3 May the IJ go to the modified categorical approach and consult the Record of Conviction (ROC) and, if so, for what purpose? ROC REVIEW ONLY where DIVISIBLE statute Must be multiple, distinct crimes in statute Layers of Divisibility - Is specific provision further divisible or overbroad?
QUESTION #3 CONT D ONLY Purpose for Consulting ROC To identitfy which statutory offense under divisible statute was the subject of the conviction IJ CANNOT review ROC to determine whether facts can be made to match generic definition Means vs. Elements Not the same. Element = jury required to find it.
QUESTION #4 IF PERMITTED TO CONSULT ROC, WHICH DOCUMENTS CAN AN IJ REVIEW? Can Reivew: Charging document Jury instructions Guilty plea & documents incorporated into plea to establish factual basis Plea colloquy Can Not Review Police reports* Cert of probable cause* Prosecutor statements Dismissed charges
ADVOCATING FOR YOUR CLIENT Dramatically altered landscape for the better! Contest Removal Charges Advocate for Relief Eligibility Young v. Holder on reivew Incompatible with Moncamps
Impacts on WA & OR Crimes Crimes Against Persons, Property Drug Crimes
WA & OR CRIMES AGAINST PERSONS Assault Crimes DV-Related Crimes & Issues Sex Crimes Other Crimes Against Persons
OR & WA PROPERTY CRIMES Theft Crimes Possession of Stolen Property Burglary Offenses Forgery Other property crimes
OR & WA DRUG CRIMES Drug Possession Drug Trafficking Other Drug Crimes
MATTER OF ESLAMIZAR Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004) (Oregon violation is not a conviction for purposes of INA 101(a)(48)(A)). Oregon violation proceedings lack(ed): Right to Counsel, Right to Jury, Possibility of Imprisonment, and Guilt Beyond a Reasonable Doubt (vs. Preponderance) But More Importantly: Violation proceedings are not genuine criminal proceedings. Disposition must, at a minimum, be criminal in nature under the Governing Laws of the prosecuting jurisdiction. See also, Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008); Matter of Cuellar-Gomez, 25 I&N Dec. 850 (BIA 2012).
AFTER ESLAMIZAR: OREGON VIOLATIONS State v. Benoit, 354 OR (Oct. 3, 2013) (where the state elects to treat a misdemeanor as a violation, the violation proceeding must include the right to a jury trial under the Oregon Constitution, Art. I, section 11). Under Art. 1, section 11 of the OR Constitution, the right to jury applies to all criminal proceedings. If the arresting officer charges an offense as a misdemeanor, then the right to jury trial attaches, per Benoit. When the jury trial right attaches, the offense is criminal under Oregon law. Therefore If the arresting officer originally charged a misdemeanor, then the violation hearing was criminal, and therefore a conviction for immigration purposes.
VIOLATIONS (CONT). Remaining questions regarding violations. #1: Does State v. Benoit apply prosectively or retroactively? In other words, is a pre-10/03/13 violation finding still not a conviction for immigration purposes? #2: Does the Respondent or the Government have to show whether the violation proceeding was initially a misdemeanor proceeding? Does who bears the burden matter? Do Descamps and Moncrieffe prevent the Court from making this determination?
OREGON DV RESTRAINING ORDERS A noncitizen is barred from Non-LPR Cancellation if they are removable for a conviction. INA 240A(b)(1)(C). Issue: Is an Oregon punitive contempt finding a conviction for immigration purposes? The IJ s say YES, because Oregon s punitive contempt procedures have all constitutional protections afforded criminal defendants except right to jury trial, and they can go to jail or be put on probation. The IJ s say If the person is found guilty beyond a reasonable doubt, it s a conviction. This is the key test under Eslamizar. The better answer is
OREGON DV RESTRAINING ORDERS NO! Why? (1) The threshold test is whether, at a minimum, the defendant was subject to a genuine criminal proceeding under the law of the prosecuting jurisdiction. This is the key, because a foreign conviction may not require the BRD standard, etc. to convict. (2) Under Oregon law, punitive contempt findings have long been held not to be criminal in nature (nor are they civil). No right to jury trial (the key test under the Oregon constitution); No criminal fees; no PCR rights; no expungment, and does not trigger bars that a crime would. (3) The Third Circuit agrees: Castillo v. Att y Gen., 729 F.3d 296 (3d Cir. 2013).
Practical Strategies for Representing Detained Clients
TO POST BAIL/RO OR NOT TO POST BAIL/RO, 3 or more weeks before THAT S a bond hearing THE is scheduled QUESTION! in Tacoma. Contact PD or criminal attorney immediately to inform of your involvement, but make sure PD understands your involvement is limited to ICE release issues, unless you want to get involved in Padilla issues and you are hired to address Padilla issues. Procedurally, where is the criminal case, book/release, PTC, early resolution, drug call, trial. Work with the PD or criminal attorney very closely. Tell your client not to discuss with ICE the fact and circumstances of any of their arrests/conviction or uncharged crimes or drug or alcohol use without the presence of an attorney, if afraid to return inform officer of this fear, but not in detail. Be aware of MTS issues, if any LPR v. EWI!
TO POST BAIL OR NOT TO POST BAIL, THAT S THE QUESTION! Set-overs: some local judges do not give set-overs for immigration bond/release purposes, but may for immigration consequences issues/padilla. Risk: FTA charge and warrant must be discussed before RO or Bail. Relief available, but for conviction(s) in criminal case. Diversion for drug/prostitution/theft/duii involves guilty pleas, so it is a conviction for immigration purposes. Must enter diversion with 30 days or soon after first appearance depending on program. Golden 48 hours to approach ICE even if not in physical custody of ICE but subject to detainer.
TO POST BAIL OR NOT TO POST BAIL, THAT S THE QUESTION! Prepare your Habeas Petition and be ready to file, as your window to file will close once your client goes over state lines. Can file online [amend later], but need to setup an account and $5.00! You can still file your Habeas petition in Seattle, WA. Help the client file their Habeas petition pro se in Seattle, WA. Overwhelm system until ICE changes its position. I would not ask for a bond hearing in Tacoma and go straight to Federal Court/argue futility [Matter of Rojas]. Alwady v. Beebe, 43 F. Supp. 2d 1130 (D. Or. 1999) If you have a bond hearing and lose either on Matter of Rojas or merits the government will argue exhaustion in your Habeas case.
WHAT HAPPENS TO THE MONEY I PAID FOR RELEASE? We have no bail bonds men/women in Oregon, as the Oregon Supreme Court ruled in the 70s it is kidnapping to arrest a person on an out of state or in state warrant unless you are LE. Before you advise client s family/friend to pay any money consider the following: Are you the poster s attorney when giving advise about their liability? The court will automatically keep 15% of the deposit posted for administrative release costs. The court may order that the remainder of the deposit be applied toward payment of any fines, costs, assessments, restitution, attorney fees or other financial obligations imposed in this case or any case in the county.
WHAT HAPPENS TO THE MONEY I PAID FOR RELEASE? Any refund will be made payable to the person who posted the money as shown by the court records, or as otherwise ordered by the court. It is your responsibility to notify the court if your address changes. It usually takes from two to three weeks after all matters in the case have been completed before a refund is processed.
WHAT HAPPENS TO THE MONEY I PAID FOR RELEASE? The individual posting the bail may be intimidated by the staff and discouraged from posting bail given detainer or ICE may be called on the individual posting bail. Make sure the person has legal status posting bail. SOLUTION: Place the bail money on the defendant s books and have him/her selfpost security.
DEALING WITH ICE 48 hours or less to make contact locally. Go down to the office to speak with the officer assigned to the case. Buses leave by 2 p.m. G-28 in place [specify release only so you are not on the hook for all matters, including service of NTA or any other documents] ICE follows Matter of Rojas.
DEALING WITH ICE DON T HIDE ARRESTS/CONVICTIONS or pending charges FROM MUNICIPAL COURT: Warts and All approach to all arrests and convictions, as they have access to OJIN and other criminal data. Establish credibility and work with the criminal history. If person crimes/convictions ICE will contact victims in making a release determination. DO NOT ADMIT CHARGES OF REMOVABILITY, but you can talk about the conviction(s). Offer minimum bond $1500.00
DEALING WITH ICE If arrest only or dismissed charges, ICE contacts LE or DA for police reports and victims for their statements. DO TALK ABOUT RELIEF AVAILABLE. If there is a potential self-petition or UVISA, address it immediately.
RODRIGUEZ, ET AL. V. ROBBINS, ET AL. The panel affirmed the district court s grant of a preliminary injunction in favor of a certified class of non-citizens who challenge their prolonged detentions, requiring the government to identify those detained in subclasses pursuant to 8 U.S.C. 1226(c) (certain criminal or terrorist aliens) and 1225(b) (arriving aliens), and to provide each with an individualized bond hearing before an Immigration Judge.The panel held that petitioners-appellees were likely to succeed on the merits of their claim that 1225(b) must be construed to authorize only six months of mandatory detention, after which detention is authorized by 1226(a) and a bond hearing is required. The panel also held that the preliminary injunction is necessary to ensure that individuals whom the government could not prove constitute a flight risk or danger to public safety are not needlessly detained, and that appellees therefore clearly showed a risk of irreparable harm.
WHO IS SUPPOSED TO PRESENT EVIDENCE AT THE HEARING? At a Rodriguez bond hearing, only the government not you is required to prove by clear and convincing evidence that: (1) you are a flight risk or (2) a danger to society in order to keep you detained. However, it will probably strengthen your argument for release on bond if you can present evidence on your own behalf.