Immigration Consequences of Criminal Conduct. CPCS Immigration Impact Unit 2014

Immigration Consequences of Criminal Conduct CPCS Immigration Impact Unit 2014

Topics of Discussion Types of Immigration Status Immigration Terms of Art Immigration Consequences of Criminal Offenses Analyzing Specific Consequences for Your Client Immigration Enforcement and Post Conviction Relief

Why Do I Need to Know This? Padilla v. Kentucky March 2010 Commonwealth v. Marinho January 2013 duty to advise of consequences prior to pleading duty to advise of consequences prior to trial duty to negotiate with prosecutor and advocate at sentencing for disposition that mitigates consequences Failure to do so is ineffective assistance of counsel

To advise your client you need to know: Immigration status Prior criminal history Pending charges

Types of Immigration Status Legal Permanent Resident Lawful Non-Immigrants U.S. Citizen Refugees & Asylees Temporary Protected Status/DACA Undocumented and Out of Status

Inadmissibility v. Deportability Inadmissible (8 USC 1182 ): Client leaves U.S. and tries to return, he can be stopped at the border if inadmissible. Client never lawfully admitted to the U.S. (i.e. crossed the border illegally) can be removed based on grounds of inadmissibility. Client can be denied green card based on grounds of inadmissibility. Deportable (8 USC 1227): If client was lawfully admitted to the U.S., she can be removed based on grounds of deportability.

Conviction A finding of guilty or admission of sufficient facts, AND The judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. 8 U.S.C. 1101(a)(48)

MA Dispositions Under Federal Immigration Law Massachusetts Disposition CWOF Federal Immigration Law Conviction Pre-trial Probation (no admission) Not a conviction Guilty File Might not be a conviction

MA Dispositions Under Federal Immigration Law Massachusetts Disposition Accord & Satisfaction Federal Immigration Law Not a conviction MGL 277 s70c Not a conviction Civil Infractions are not convictions for immigration purposes

Juvenile Dispositions A finding of delinquency is not a conviction for immigration purposes A youthful offender adjudication may be a conviction for immigration purposes Some grounds of inadmiss/deport don t require a conviction, so juvenile dispositions can still have imm. conseq.

No conviction required for Reason to believe drug trafficker Drug abuser/addict 209A violations Engaging in prostitution Discretionary decisions

Sentence Under immigration law, a sentence includes any term of incarceration whether committed or suspended. EX: A 2 year sentence of imprisonment, 6 months to serve, the balance suspended for 1 year = a 2 year sentence of imprisonment.

Crime Involving Moral Turpitude Intent Reprehensible Conduct CIMT Matter of Silva-Trevino, 24 I&N Dec. 687 (2008)

Examples of Crimes Involving Moral Turpitude murder, manslaughter, assault to rob or kill, ADW, ABDW, most agg. assaults rape, indecent assault and battery, prostitution, failure to reg. arson, robbery, malicious destruction, larceny, shoplifting, any type of fraud or theft (with intent to permanently deprive)

Waivers/Relief from Removal Examples: Cancellation of removal Asylum/withholding/CAT 212(h) 212(c) etc

Types of Consequences Removal of person who had been lawfully admitted to U.S. Denial of admission/denial of green card Bar to naturalization Loss of visa or temporary legal status Denial of asylum Denial of waivers/relief from removal Adverse discretionary findings

Grounds of Inadmissibility and Deportability Inadmissibility (8 USC 1182) Deportability (8 USC 1227) Crimes involving moral turpitude Crimes involving moral turpitude Controlled Substance Offense Controlled Substance Offense Prostitution related offenses Conviction of multiple offenses (5 years or more) Firearms offenses Domestic Violence offenses Aggravated Felonies

Inadmissible Offenses: Crime Involving Moral Turpitude A person is inadmissible based on one crime involving moral turpitude, UNLESS: One crime committed when under 18 years old and at least 5 years before admission or Maximum possible penalty is one year or less and sentence is 6 months or less

Inadmissible Offenses: Controlled Substances Violation of any law RELATING TO controlled substances Any alien who the AG has reason to believe is a drug trafficker.

Inadmissible Offenses: Prostitution Engaging in prostitution Procuring a prostitute Receiving the profits from prostitution (pimps)

Inadmissible Offenses: Multiple Offenses Multiple offenses - 2 or more convictions for which aggregate sentence is more than 5 years

Deportable Offenses: Crime Involving Moral Turpitude One CIMT within 5 years of admission, where a sentence of at least one year may be imposed OR Two CIMTs at any time, not arising out of a single scheme of criminal misconduct

Deportable Offenses: Controlled Substance Offenses Conviction for ANY drug offense makes a person deportable - Except 1 offense of 30 grams or less of marijuana - Includes conspiracy or attempt

Deportable Offenses: Firearm Offenses Includes a conviction for any crime of buying, selling, using, owning, possessing or carrying any firearm or destructive device Includes conspiracy and attempt May also include crimes for which possession or use of a firearm is an element of the offense

Deportable Offenses: Domestic Violence Includes conviction for: Crime of domestic violence Stalking Child abuse Child neglect Child abandonment or Violation of criminal or civil protective orders

Deportable Offenses: Aggravated Felony To be avoided at all costs! 8 U.S.C.1101(a)(43) federal statutory definition Minor offense can be AF Misdemeanor can be AF

Deportable Offenses: Aggravated Felony Consequences Nearly automatic deportation Permanent exile from the U.S. Bar to almost every form of relief from deportation Mandatory detention.

Deportable Offenses: Aggravated Felony Conviction-based AFs Conviction of specified offense Sentence-based AFs Conviction of specified offense + sentence of imprisonment of one year or more

Deportable Offenses: Aggravated Felony Common Convictionbased Murder Rape Sexual abuse of a minor Drug Trafficking (any offense other than simple possession) Common Sentencebased Crimes of violence Theft offenses Burglary; B&E in a building. Witness Intimidation

Topics of discussion Types of Immigration Status Immigration Terms of Art Immigration Consequences of Criminal Offenses Analyzing Specific Consequences for Your Client Immigration Enforcement and Post Conviction Relief

Analyzing Individual Consequences Step One: Does the offense fall into any of the categories of inadmissibility or deportability?

Grounds of Inadmissibility and Deportability Inadmissibility Deportability Crimes involving moral turpitude Crimes involving moral turpitude Controlled Substance Offense Controlled Substance Offense Prostitution related offenses Conviction of multiple offenses (5 years or more) Firearms offenses Domestic Violence offenses Aggravated Felonies

Analyzing Individual Consequences Step Two: Your client s status and immigration history

Analyzing Individual Consequences Step Three: Your client s prior record

Analyzing Individual Consequences Step Four: Determine how your client s charges, immigration history, and prior record impact the analysis

Analyzing Individual Consequences Step Five: Determine your client s priorities.

Topics of discussion Types of Immigration Status Immigration Terms of Art Immigration Consequences of Criminal Offenses Analyzing Specific Consequences for Your Client Immigration Enforcement and Post Conviction Relief

Immigration Enforcement How your client gets caught CAP Secure Communities Detainers Getting clients back from ICE custody

Post Conviction Relief Motion for New Trial or to Vacate Plea Violation of immigration warning statute M.G.L. ch.278, 29D Ineffective assistance of counsel (Padilla, Clarke) Motion to Revise and Revoke

Most Important Things to Remember Determine client s immigration status Consider client s prior record, inc. CWOFs that were dismissed Determine client s goals Talk to client s immigration attorney Avoid aggravated felony conviction AND..

Most Important Things to Remember Tell client not to talk to immigration official, apply for anything, or leave U.S. without talking to immigration attorney first GET HELP analyzing immigration consequences

CPCS Immigration Impact Unit 21 McGrath Highway Somerville, MA 02143 TEL: 617-623-0591 FAX: 617-623-0936 iiu@publiccounsel.net [Please fill out the intake form!!]