Guide to Immigration Consequences for Iowa Criminal Convictions

University of Iowa College of Law Advanced Immigration Law & Policy Guide to Immigration Consequences for Iowa Criminal Convictions A Guide for Public Defenders Damian Bakula, Anne Harrison, Jack Hathaway, Emily Papp Spring 2015 1

TABLE OF CONTENTS About This Guide... 3 Step 1: Determine Your Client s ImmigrationStatus and Time Spent in the United States... 5 Categories of Immigration Status... 6 Intake: Determining Your Client s Status... 10 Step 2: Review your client s criminal history... 12 Step3: Analyze Charges Using the Iowa Criminal Immigration Consequences Chart 16 Using the Chart... 17 Immigration Consequences and Types of Crimes... 18 Step 4: Counsel your client and provide a Padilla Statement... 25 Appendix A: Glossary of Immigration Terms and Acronyms... 27 Appendix B: Sample Intake Form... 29 Appendix C: Sample Padilla Form... 30 Appendix D: How to find an Immigrant Client... 32 Appendix E: Removal Priorities... 34 Appendix F: Analyzing Immigrants Criminal Convictions Using the Categorical Method... 35 Appendix G: Relief From Removal... 39 Disclaimer: This guide is not meant to assist with the representation of an immigrant in removal proceedings. This chart is meant to assist attorneys representing immigrant defendants in Iowa criminal proceedings to provide more competent advice regarding the potential immigration consequences for a conviction under the Iowa Code. This chart is meant to serve as a starting point, not to replace detailed fact and situation specific research. Consult an immigration attorney whenever your client may qualify for discretionary relief from immigration consequences or the immigration consequences are unclear. 2

ABOUT THIS GUIDE 1 This guide was created to assist public defenders and other attorneys representing immigrant clients facing Iowa criminal charges to provide competent legal advice relating to the potential immigration consequences for a conviction, as required per Padilla v. Kentucky. 2 Determining consequences of criminal conviction for noncitizens means interpreting and applying various provisions of the Immigration & Nationality Act (INA) the law that generally includes all of the federal statutory provisions that establish which noncitizens may enter the country, how long they may stay, what they may do while they are here, and when the U.S. government may remove them from the country. 3 Depending on your client s immigration status and the nature of the criminal charge against them, a conviction or plea could result in your client facing removal (deportation), becoming ineligible to naturalize (apply for citizenship) or adjust status (apply for visas, lawful permanent residency), or becoming ineligible to apply for discretionary relief from removal, such as Deferred Action for Childhood Arrivals (DACA), Deferred Action for Parental Accountability (DAPA), or cancellation of removal. This guide is organized into four sections that correspond to the four objectives that must be accomplished when counseling immigrant defendants facing criminal charges: 1. Determine your client's immigration status and time spent in the US 2. Review your client's criminal history 3. Analyze charges using the Iowa Criminal Immigration Consequences Chart 4. Counsel your client and provide a Padilla Statement 1. DETERMINE YOUR CLIENT S IMMIGRATION STATUS & TIME SPENT IN THE US The INA classifies various noncitizens into different categories known as immigration status, each with different rights, abilities, benefits, and potential criminal consequences. Your client s individual status and how long she has had that status may affect what consequences will follow from her criminal conviction. Similarly, how long she has been present in the United States may also affect the potential consequences for a particular conviction. 1 This guide was created by Damian Bakula, Anne Harrison, Jack Hathaway, and Emily Papp with the generous assistance of Professor Stella 2Padilla v. Kentucky, 559 U.S. 356 (2010). 3Immigration & Nationality Act, 8 U.S.C. 1101, 1157 57, 1181 82, 1201, 1254 55, 1259, 1322, 135 (2014) 3

2. REVIEW YOUR CLIENT S CRIMINAL HISTORY The second section of this guide contains information pertinent to how your client s cumulative criminal history may affect the immigration consequences for a particular conviction. The nature of past offenses and overall time incarcerated may increase the severity of the potential immigration consequences your client may face for the current charge or charges. Intake Form: To help ensure you have all the information you need to counsel your client about potential immigration consequences, we have provided a model intake form which can be downloaded here. It also compiles useful information for your client s current or future immigration attorney to use in immigration-related representation. 3. ANALYZE CHARGES USING THE IOWA CRIMINAL CONSEQUENCES CHART The INA also applies different sorts of consequences for different categories of crimes. The third section of this guide explains the classifications of crimes for immigration purposes and how each classification may affect your client based upon your client s immigration status. It also provides guidance on how to use the Iowa Criminal Consequences Chart. Iowa Criminal Consequences Chart: The chart outlines the categorization and likely immigration consequences of conviction of Iowa criminal statutes for clients with different immigration statuses. 4. COUNSEL YOUR CLIENT AND PROVIDE PADILLA STATEMENT The fourth section of this guide contains information on counseling your client and providing a completed Padilla Statement that documents that you have counseled your client on the potential immigration consequences for a conviction or plea of the charged offense and that your client understands the potential immigration consequences Padilla Statement Form: To help aid and document client counseling on immigration consequences, we have provided a fillable form outlining the consequences your client may face. It can be downloaded here. 4

STEP 1: DETERMINE YOUR CLIENT S IMMIGRATIONSTATUS AND TIME SPENT IN THE UNITED STATES 1. Determine your client's immigration status and time spent in the US 2. Review your client's criminal history 3. Analyze charges using the Iowa Criminal Immigration Consequences Chart 4. Counsel your client and provide a Padilla Statement Your client s immigration status will impact how a particular conviction may affect your client, including whether your client is removable (deportable) or eligible for discretionary relief from removal. Your client will fall into one of the following immigration status categories: Lawful Permanent Residents (LPRs, Green Card Holders, Refugees and Asylees Post-Adjustment of Status); Temporary Visa Holders (Student Visas, Work Visas, Tourist Visas, etc.); Interstitial Status (Refugees and Asylees Prior to Adjustment of Status, Parolees, and those in Temporary Protected Status); Deferred Action Recipients; and Undocumented Immigrants. Each of these immigrant status categories is explained in the sections of the guide that follow. How long your client has been in her current status and how long she has been present in the United States may also impact how a particular conviction may affect your client, including whether your client is removable (deportable) or ineligible for discretionary relief from removal. Your client s time in the United States and time in current immigration status may affect your client will be covered within the section explaining each immigration status category. Because the potential immigration consequences of various criminal convictions vary greatly depending on your client s immigration status, time in that status, and time in the United States, it is crucial that you have correctly identified the category your client fits into. To aid in determining your client s immigration status, please use the client intake form and accompanying instructions, available here. 5

CATEGORIES OF IMMIGRATION STATUS LAWFUL PERMANENT RESIDENTS (LPRS) DESCRIPTION U.S. Citizenship and Immigration Services (USCIS) defines lawful permanent residents (LPRs)as: Any person not a citizen of the United States who is residing in the U.S. under legally recognized and lawfully recorded permanent residence as an immigrant. 4 These individuals have entered the country legally and have permission to remain in the country indefinitely. They also have authorization to work in the United States. LPRs are the only class of immigrant that assuming they meet the other requirements are able to naturalize to become U.S. Citizens. They are also known as Permanent Resident Alien, Resident Alien Permit Holder, and Green Card Holder. 5 EXAMPLES Individuals who entered with an immigrant visa (i.e. family-based, employment-based, or through the visa lottery) Refugees and asylees who, after a period of one year of physical presence in the United States, have adjusted to LPR status. Conditional permanent residents 6 have conditional status based upon their entry with visa based upon marriage or entrepreneurship and are granted an initial green card that is valid for two years. RISKS ARISING FROM CRIMINAL CONVICTIONS Of all the noncitizen categories, LPRs are subject to the fewest criminal immigration consequences. They have heightened protections and have more opportunities for relief from removal. However LPRs may still be removed for certain criminal convictions. 4Lawful Permanent Resident (LPR), U.S. Citizenship & Immigration Services, http://www.uscis.gov/tools/glossary/lawful-permanent-resident-lpr (last visited April 4, 2015). 5 Id. 6Conditional Permanent Resident, U.S. Citizenship & Immigration Services, http://www.uscis.gov/green-card/after-green-cardgranted/conditional-permanent-residence (last visited April 14, 2015). 6

TEMPORARY VISA HOLDERS DESCRIPTION Temporary visa holders are any noncitizens that are here on a lawful, non-permanent basis. A temporary visa holder should be able to provide their passport to show the type and expiration date of their visa. However, it is possible for noncitizens to travel to the U.S. for short-term visits (less than 90 days) without a visa if they are part of the Visa Waiver Program. 7 EXAMPLES Students, professors or scholars, research assistants, or those engaged in teaching through an approved study abroad program (F1, J1, and M1 visas) Temporary workers: seasonal farm laborers; skilled professionals, relatives and/or dependents of qualifying H-visa holders (H1A, H1B, and H-4 visas) Business Travelers (B-1 visas) Tourists or those seeking medical treatment (B-2 visas) Fiancé Visa (K visas) People coming to the U.S. to supply information to U.S. authorities about a criminal organization or a terrorist organization. (S-5 and S-6 visas) Victims of trafficking in persons (T-1 visas) People who have suffered substantial physical or mental abuse as a result of certain U.S. criminal violations including domestic violence and who are assisting law enforcement authorities (U-1 visas) RISKS ARISING FROM CRIMINAL CONVICTIONS While their presence is lawful, they are still subject to deportation for a variety of criminal convictions. They have more protections than those who are undocumented, but do not qualify for all the forms of relief and some of the special legal protections that Lawful Permanent Residents do. INTERSTITIAL STATUS DESCRIPTION Interstitial status includes various ways that a noncitizen can be legally present in the United States but in a status that is in some way unofficial or temporary. All of these categories are uncommon. Some variations of interstitial status will eventually allow the noncitizen to adjust status to become a Lawful Permanent Resident. Others are purely temporary allowances, generally granted for humanitarian reasons. 7Visa Waiver Program, U.S. Dep t of State, http://travel.state.gov/content/visas/english/visit/visa-waiver-program.html (last visited April 15, 2015). 7

EXAMPLES Asylees (i.e. individuals who have been granted asylum are given a temporary, interstitial asylee status for the first year after their application is approved, after which they can adjust status to become a LPR) Parolees (i.e. individuals who, under rare circumstances, are allowed into the country temporarily for some compelling circumstance or emergency) 8 Temporary Protected Status (TPS) (i.e. individuals from a country or region designated by the Secretary of Homeland Security that temporarily impedes the safety of its nationals for reasons such as armed conflict, disaster, etc.) 9 RISKS ARISING FROM CRIMINAL CONVICTIONS Asylees: while aslyees cannot ordinarily be removed to their home country due to established risk of persecution or death, certain criminal convictions can lead to revocation of asylum and place the noncitizen at risk for removal. Parolees: the grant of parole status is completely discretionary, and thus is subject to being revoked at any time. Temporary Protected Status: while the TPS designation by the Secretary of Homeland Security is in place, those who have TPS are not removable. However, because TPS is temporary individuals may face removal once the designation is lifted. DEFERRED ACTION RECIPIENTS DESCRIPTION Deferred Action recipients are previously undocumented or expired status individuals who have been granted a temporary prosecutorial reprieve from apprehension and removal. The deferred action is temporary and does not grant a green card or create a path to citizenship. However, recipients may obtain work authorization, a social security card, or a driver s license. EXAMPLES Deferred Action for Childhood Arrivals (DACA) (i.e. deferred action for those who entered the United States unlawfully before their 16th birthday to remain here temporarily). 10 Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA): (i.e. future deferred action for certain undocumented parents of U.S. citizens and LPRs). 11 8Humanitarian Parole, U.S. Citizenship & Immigration Services, http://www.uscis.gov/humanitarian/humanitarian-parole (last visited April 14, 2015). 9Temporary Protected Status, U.S. Citizenship & Immigration Services, http://www.uscis.gov/humanitarian/temporary-protected-statusdeferred-enforced-departure/temporary-protected-status (last visited April 14, 2015). 10Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship & Immigration Services (Mar. 10, 2015), http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca. 11 As of early 2015, USCIS is not yet accepting applications for DAPA. However it is likely at the time the program becomes active DAPA recipients will be subject to similar criminal immigration consequences as DACA recipients. You May Be Able to Request DAPA, U.S. Citizenship & Immigration Services (Jan. 30, 2105), http://www.uscis.gov/sites/default/files/uscis/executiveactions/eaflier_dapa.pdf 8

RISKS ARISING FROM CRIMINAL CONVICTIONS These individuals are subject to heightened criminal immigration consequences. In addition to the types of criminal convictions that are problematic for all noncitizens, recipients of DACA and DAPA need to also be concerned about significant misdemeanors and the accumulation of three or more misdemeanors. UNDOCUMENTED IMMIGRANTS DESCRIPTION Undocumented individuals are those who initially entered the country without permission or inspection. Individuals with expired status are those who entered with a temporary visa but did not leave after the visa expired. In either case the individuals do not have legal permission to be in the country. Undocumented individuals may have difficulty pinpointing exactly how long they have been in the country. EXAMPLES Entered Without Inspection (EWI): entered the country without formal inspection/admission at the border or a port of entry Overstays of Temporary Visas: entered legally with one of the temporary visas listed above but did not leave when the visa expired Individuals Granted Voluntary Departure or Ordered Removed Who Did Not Leave: received either a removal order or a grant of voluntary departure but did not actually leave the country RISKS ARISING FROM CRIMINAL CONVICTIONS Undocumented individuals face the greatest potential of removability. They are not eligible for most forms of relief. 9

INTAKE: DETERMINING YOUR CLIENT S STATUS Because the potential immigration consequences are so dependent upon your client s individual circumstances her status, her time in the country, her criminal history, etc. intake provides the opportune time to gather this necessary background information. While it is likely you are used to discussing criminal history with your clients, determining immigration status is probably less familiar. This section will discuss various strategies to help ascertain your client s status so you can counsel her properly. DETERMINING IMMIGRATION STATUS FROM DOCUMENTS Practice Tip: A sample intake form to help with determining immigration consequences for your client can be downloaded here. If your client currently has some form of lawful immigration status, she will likely be able to provide you some type of government-issued document to establish this. Below are some common examples of documents held by immigrants that indicate their immigration status. Documen t What it means Example Green Card Only Lawful Permanent Resident Shows how long he or she has had this status Long- Term Visa Noncitizens who entered with long-term visas Shows expiration date and category code indicating the type of visa the client was granted. 12 From a non-contiguous country (i.e. not Mexico or Canada), the visa document should be in his or her passport From Canada or Mexico, this may not be in his or her passport. The entry date should be documented 12 For a list of visas corresponding to category code, See Directory of U.S. Visas, at the U.S. Department of State website http://travel.state.gov/content/visas/english/general/all-visa-categories.html 10

I-94 and Entry Stamp elsewhere in the passport. Tourists from countries in the in the Visa Waiver Program 13, Entry stamp to the U.S. and an I-94 stapled into the passport may be the only documentation Tourist visas last 90 days Employm ent Authoriz ation Documen t (EAD, work permit ) Currently or previously held status that allowed legal work in the US (i.e. temporary visa holders, immigrants with applications for lawful status pending with the government, asylum applicants, DACA holders, etc.). 14 clearly displays the date it was granted and the date it expires Provides a code for the category under which the client was granted the EAD. 15 Note: An unexpired work permit does not necessarily mean that the client is not undocumented. A noncitizen may have been ordered removed prior to EAD expiration. May indicate that the client is in the process of applying for legal status: photocopy EAD and contact immigration attorney immediately as criminal convictions can have consequences for immigrants with pending applications. IF YOU ARE UNABLE TO DETERMINE STATUS When the client s status cannot be determined from the information and documents provided by the client, photocopy whatever documents the client has from the immigration authorities and contact an immigration attorney. 13 For a list of participating countries, See Visa Waiver Program, U.S. Department of State http://travel.state.gov/content/visas/english/visit/visa-waiver-program.html. 14See Id. 15 For a complete list of all of the categories of immigrants who may apply for Employment Authorization, and the corresponding category code, See Instructions for I-765, Application for Employment Authorization, http://www.uscis.gov/sites/default/files/files/form/i-765instr.pdf. 11

STEP 2: REVIEW YOUR CLIENT S CRIMINAL HISTORY 1. Determine your client's immigration status and time spent in the US 2. Review your client's criminal history 3. Analyze charges using the Iowa Criminal Immigration Consequences Chart 4. Counsel your client and provide a Padilla Statement It is important for you to review your client s criminal history because cumulative criminal history, including the nature of past offenses and overall time incarcerated, may play a role in how the current charge will affect your client. The following sections in the guide discuss the disposition of a criminal charge for immigration purposes, how the timeframe of past offenses may affect your client, and how your client s cumulative criminal history may affect your client, including how the aggregate length of sentences imposed may affect your client. 12

CRIMINAL HISTORY FOR IMMIGRATION PURPOSES DISPOSITION OF CRIMINAL CHARGE FOR IMMIGRATION PURPOSES Several types of dispositions are relevant for immigration purposes that do not qualify as convictions in other contexts. The term definition of conviction that determines when a criminal outcome will factor into an immigration court s analysis is provided in 8 U.S.C. 1101(a)(48)(A) and provides: The term conviction means... a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where- (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 guilty, and Practice Tip: Deferred judgments count as a conviction for immigration purposes. That is, a plea that includes a deferred judgment does not keep your client's immigration record clean. Rather for immigration purposes, a deferred judgment is functionally equivalent to accepting a plea for the maximum sentence. (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien s liberty to be imposed. Because this definition includes Iowa deferred judgments and its equivalent in other states be sure to ask your client specifically about this type of criminal proceeding. T IMEFRAME OF P AST O FFENSES Practice Tip: Juvenile adjudications do not count for immigration purposes. In many situations, whether or not a client will face immigration consequences will depend on the temporal relationship between key events in the client s immigration history, and key events in his or her criminal history. The events from the immigrants immigration history that are most frequently relevant are the dates he or she was first entered the united states (was legally admitted, or entered otherwise) and/or the day the client applies for a benefit from the immigration authorities. 16 Key events in the clients criminal history include the date he or she was convicted of a crime, committed a crime and, in some cases, the date he or she was released from jail because of a conviction. As an example of this interplay, consider a client who has committed of a crime involving moral turpitude, a key category of crimes that the immigration authorities use as a basis to remove immigrants from the country and refuse to grant them immigration benefits. Under immigration law generally, the client may only be deported on account of this crime, assuming there is no other basis to deport him or 16 The date the client entered the U.S. and/or became a lawful permanent resident will also be relevant if he or she must apply to the government for relief from removal. See Appendix E: Relief From Removal. 13

her, if the client was convicted within five years of the day she was legally admitted into the United States. 17 For another example, consider the same client except in relation to his or her ability to gain an immigration benefit from the immigration authorities. If the client applies to the government for a visa, the client must show that he or she is admissible in order to be eligible. One way that the client may be inadmissible is if he or she has a conviction for a crime involving moral turpitude 18. However, there is an exception to this rule for immigrants who 1) committed the crime before they were 18 years old and 2) were released from any confinement imposed because of the crime more than 5 years before they applied to the government for the visa. 19 P OTENTIAL I MMIGRATION C ONSEQUENCES B ASED U PON C UMULATIVE C RIMINAL R ECORD Immigration consequences can arise based upon the number of convictions and/or the aggregate length of sentences. Admissibility, showing of good moral character required for naturalization and adjustment of status, and removability are affected by the immigrant s cumulative criminal record. Therefore, it is important to consider the nature and sentences of past convictions when counseling immigrant defendants. Be especially wary if the immigrant was sentenced to confinement for an overall period of greater than 180 days or if the immigrant was convicted of crimes for which the possible sentence exceeds one year. The following sections detail the effects of multiple crime involving moral turpitude(cimt) convictions, 2 or more drug convictions, 3 or more misdemeanor convictions, and the effect the aggregate length of sentences imposed may have on your client. MULTIPLE CIMTS An LPR who is convicted of a single CIMT more than 5 years after the date of admission is not removable. 20 Also, the first CIMT must be for a crime with a maximum sentence of a year or greater, or the actual sentence is at least 180 days in order to trigger removability for other lawfully admitted immigrants. 21 However, a second CIMT conviction, not arising out of a single scheme, renders any alien removable, regardless of immigrant status, the maximum sentence that may be imposed, or the actual sentence imposed. 22 2 OR MORE DRUG OFFENSES Even a single drug offense, other than simple possession of 30 grams or less of marijuana for personal use, makes any immigrant deportable. 23 A second drug offense will increase your client s removal priority, impact his chances for obtaining discretionary relief from removal, and may be treated as an Practice Tip: A second conviction for simple drug possession could be an aggravated felony, which triggers mandatory removal (deportation). 17See 8 U.S.C. 1227(a)(2)(A)(i)(I). 18See 8 U.S.C. 1182(a)(2)(A)(i)(II). 19See 8 U.S.C. 1182(a)(2)(A)(ii)(I). 20 I.N.A. 237(a)(2)(A)(i). 21 Id. 22 I.N.A. 237(a)(2)(A)(ii). 23See I.N.A. 237(a)(2)(B). 14

aggravated felony, which triggers mandatory removal (deportation). 24 3 OR MORE MISDEMEANORS Conviction of 3 or more misdemeanors, other than minor traffic offenses or offenses where immigration status is an essential element, makes removable immigrants a Priority 2 removal priority. 25 3 or more misdemeanors also makes undocumented immigrants ineligible for DACA or DAPA. 26 Those who are already DACA or DAPA recipients will lose their DACA or DAPA status and work authorization. 27 E FFECT OF A GGREGATE L ENGTH OF S ENTENCES 5 Year Aggregate Sentence 180 Day Aggregate Sentence 90 Day Aggregate Sentence: For 2 or more crimes for which the aggregate sentences are 5 years or greater is inadmissible. 28 (for further discussion on inadmissibility, see page 17).An immigrant convicted of a crime or crimes with an aggregate sentence of 5 years or greater is also ineligible for cancellation of removal. 29 A 180 day aggregate sentence affects whether an immigrant can establish good moral character. An immigrant sentenced to an aggregate of greater than 180 days within a 5 year period cannot establish the good moral character required for naturalization, adjustment of status, or eligibility for discretionary relief from removal. 30 A 90 day aggregate sentence makes undocumented immigrants ineligible to apply for DACA or DAPA. 31 Those who are already DACA or DAPA recipients will lose their DACA or DAPA status and work authorization. 24See Carachuri-Rosendo v. Holder, 560 U.S. 563, 566 (2010). 25Department of Homeland Security, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014), available athttp://www.dhs.gov/sites/default/files /publications/14_1120_memo_prosecutorial_discretion.pdf. 26USCIS, Consideration of Deferred Action for Childhood Arrivals (DACA), available at http://www.uscis.gov/humanitarian/considerationdeferred-action-childhood-arrivals-daca. 27Id. 28 I.N.A. 212(a)(2)(B). 298 U.S.C. 1229b. 30See I.N.A. 101(f). 31USCIS, Consideration of Deferred Action for Childhood Arrivals (DACA), available athttp://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-daca. 15

STEP3: ANALYZE CHARGES USING THE IOWA CRIMINAL IMMIGRATION CONSEQUENCES CHART ` 1. Determine your client's immigration status and time spent in the US 2. Review your client's criminal history 3. Analyze charges using the Iowa Criminal Immigration Consequences Chart 4. Counsel your client and provide a Padilla Statement Use the Iowa Criminal Immigration Consequences Chart to determine the potential immigration consequences are for the charged crime. The chart lists what categories the particular crime might fall within, possible consequences for clients with different status, and any additional considerations to keep in mind. The information contained in the chart is for quick reference. For more detailed information on how the charged crime may affect your client, consult the applicable guide sections relating to your client s status, effect of your client s cumulative criminal record, and category of crime that the charged crime fits into. The information in the chart (and this guide) are not an exhaustive account of all that can be done to avoid a conviction with immigration consequences. It is always best practice to consult an immigration attorney when dealing with an immigrant client. It is imperative to do so when it appears that the client will not be able to avoid a conviction with immigration consequences. 32 Immigration Customs Enforcement (ICE) has a wide degree of discretion and there is not precedential case law for many of the crimes contained in the guide. With a lack of uniformity between and within jurisdictions and a shortage of precedential authority, sometimes the immigration consequences for a particular crime are unclear, or the immigration consequences are dependent upon specific information contained in the record of conviction. When the immigration consequences are unclear or your client may qualify for relief from immigration consequences, consult an immigration attorney for further guidance. 32For further information on constructing immigration-safe pleas, pre-trial tactics to avoid immigration consequences for the client, etc. See The Quick Reference Guide to California Convictions, Immigrant Legal Resource Center, 2013, http://www.ilrc.org/resources/the-quick-referenceguide-to-california-convictions-updated-january-2013. 16

USING THE CHART IOWA CRIMINAL IMMIGRATION CONSEQUENCES CHART: S TEPS TO U SE THE C HART Column 1: Locate applicable Iowa Code Section Column 2: Verify whether there are potential immigration consequences Column 3: Determine which category of crime the section falls into Column 4: Ascertain what consequences your client might face based upon her particular facts Column 5: Check whether there are any special notes to keep in mind for that crime Disclaimer: This chart is not meant to assist with the representation of an immigrant in removal proceedings. This chart is meant to assist attorneys representing immigrant defendants in Iowa criminal proceedings to provide more competent advice regarding the potential immigration consequences for a conviction under the Iowa Code. This chart is meant to serve as a starting point, not to replace detailed fact and situation specific research. Consult an immigration attorney whenever your client may qualify for discretionary relief from immigration consequences or the immigration consequences are unclear. 17

IMMIGRATION CONSEQUENCES AND TYPES OF CRIMES This section will discuss the broad types of immigration-related consequences that can arise from a criminal conviction. It will then specifically address the various categories of crimes for which there are potential immigration consequences as they are defined within the Immigration & Nationality Act: aggravated felonies, crimes involving moral turpitude, and deportable offenses, including specific subcategories such as controlled substance violations and firearms offenses. It will also address the potential impact of misdemeanor offenses. TYPES OF POSSIBLE IMMIGRATION CONSEQUENCES The consequences that can follow from various criminal convictions fall into several specific types: Consequence Description Impact Removability Inadmissibility Bars to Relief and Immigration Benefits A noncitizen who is removable is subject to immediate removal from the country. Removal hearings combine two previously separate hearings deportation hearings (for those noncitizens who were admitted into the country) and exclusion hearings (for noncitizens who were never admitted through legal inspection at a port of entry). 33 Crime may not be legally admitted at any border or port of entry. Certain forms of relief from removal or other consequences (for information on types of relief, see Appendix G) are not available to noncitizens convicted of certain types of crimes. Similarly, even offenses which do not result in removal can affect noncitizens ability to apply for immigration benefits in the future. Though there are some legal differences in the way removal hearings are carried out for these two categories of noncitizens, being declared removable carries the same consequence an order of removal from the country. For noncitizens who entered the country legally, inadmissibility prevents the noncitizen from ever reentering the country legally and thus makes it impossible to even temporarily leave the country. For noncitizens who did not enter the country legally, inadmissibility makes the noncitizen removable. For noncitizens with removal orders, certain crimes prevent them from being able to apply for withholding of removability or waivers of inadmissibility. Even minor crimes may affect a noncitizen s ability to adjust or gain legal status or citizenship. Increased President Obama prioritizes the removal President Obama s priorities 35 put an 33Deportation, U.S. Citizenship & Immigration Services, http://www.uscis.gov/tools/glossary/deportation (last visited April 14, 2015). 18

Priority for Apprehension and Other of certain types of noncitizens over others. 34 Similarly, certain types of noncitizens with criminal convictions are deemed more problematic and thus may be subject to greater consequences before removal. emphasis on removing those with criminal convictions. Certain crimes can subject noncitizens to mandatory detention or faster removal from the country. AGGRAVATED FELONIES W HAT IS AN AGGRAVATED FELONY? According to USCIS an aggravated felony usually refers to particularly serious crimes. 36 More specifically, an aggravated felony is any state or federal crime that falls within one of broad, enumerated categories listed in 101(a)(43) of the Immigration & Nationality Act. The list of qualifying crimes under that section ranges from rape and murder 37 to failure to appear for certain court offenses. 38 Some of the categories of qualifying crimes are narrowly defined usually referring to particular US code provisions; other categories are broadly-defined. Whether a state conviction is an aggravated felony for immigration purposes has nothing to do with how the state criminal code classifies the crime (i.e. misdemeanor v. felony), but merely depends on whether the crime of conviction fits the category of crime in the INA. Practice Tip: Even state crimes classified as misdemeanors can qualify as aggravated felonies. In Iowa, this could include simple, serious, or aggravated misdemeanors. The categories of crimes that qualify as an aggravated felony are, generally Murder, rape, sexual assault Drug trafficking Firearms trafficking Money laundering Offenses involving explosive materials or firearms Crimes of violence as defined in 8 U.S.C. 18 with a term of imprisonment of at least one year Theft and burglary offenses with a term of imprisonment of at least one year Demand and receipt of ransom Offenses involving child pornography Offenses involving racketeering or gambling schemes Owning a prostitution business, human trafficking, or forced labor Releasing or selling various forms of government information, sabotage and treason Fraud, deceit or tax evasion, with loss to the victim greater than $10,000 Smuggling aliens Entering the U.S. after being deported as an aggravated felon 35 Id. 34See infra note 42 and accompanying text. 36Glossary of Terms, U.S. Citizenship & Immigration Services, http://www.uscis.gov/sites/default/files/files/article/chapter8.pdf (last visited April 5, 2015). 37 Immigration & Nationality Act 101(a)(43)(A )(23) 38 101(a)(43)(Q). 19

Forgery of immigration documents and related document fraud, with a term of imprisonment of at least one year Failure to appear to serve a sentence of five years or more Offenses related to obstruction of justice with a term of imprisonment of at least one year Failure to appear to answer to or dispose of a charge for 2 years or more Attempt or conspiracy to commit any of the above 39 Several aggravated felony grounds require a term of imprisonment (actual or suspended) of at least one year. 40 So if an immigrant cannot avoid a conviction that would otherwise qualify under one of these grounds, the immigrant may at least avoid an aggravated felony conviction by being sentenced to less than one year. 41 C ONSEQUENCES OF AN A GGRAVATED F ELONY C ONVICTION A noncitizen convicted of an aggravated felony becomes immediately removable moves to priority 1 for apprehension and removal. 42 may be subject to expedited ( administrative ) removal (other than LPRs) 43 subject to mandatory detention following release from criminal custody and throughout removal proceedings. 44 become ineligible for most types of discretionary relief never eligible to re-enter the country legally after being removed subject to federal prosecution upon re-entry with a maximum punishment of 20 years incarceration 45 39See 8 U.S.C. 1101(a)(43)d 40See 8 U.S.C. 1101(a)(43); 8 U.S.C 1101(a)(48)(B) [ term of imprisonment means an ordered sentence for incarceration regardless of suspension, or execution in whole or in part]. 41For information on strategies to obtain a term of imprisonment of less than one year that have been used by attorneys in the Ninth Circuit, see N.4 Sentence Solutions, Immigrant Legal Resource Center, http://www.ilrc.org/files/documents/n.4-sentence_solutions.pdf. Some or all of these strategies may not be successful in Iowa or the Eight Circuit. If your client is facing an aggravated felony conviction you should consult an immigration attorney. 42See also Memorandum from Jeh Charles Johnson, Secretary of Homeland Security, for Thomas S. Winkowski, R. Gil Kerlikowske, Leon Rodriguez, and Alan D. Bersin (Nov. 20, 2014), http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf. 43INA 238(b) [hereinafter Johnson Memo]. While noncitizens may still have the advice of counsel during these proceedings, this type of removal/deportation proceedings afford less procedural protection and are not heard before an Immigration Judge. A DHS (Department of Homeland Security) officer determines whether the noncitizen is deportable and the final removal order may be executed after only 2 weeks For more information see Florence Immigration & Refugee Rights Project, What to Do if You Are in Expedited Removal or Reinstatement of Removal (2002), http://www.justice.gov/eoir/probono/expedited%20removal%20-%20english%20%2817%29.pdf. 44INA 236(c).There is a narrow waiver potentially available for LPRs who can show it is substantially likely their crime is not a qualifying aggravated felony 45 8 U.S.C. 1326(b) 20

CRIMES INVOLVING MORAL TURPITUDE (CIMT) W HAT IS A C RIME I NVOLVING M ORAL T URPITUDE? The phrase crime involving moral turpitude was generally meant to refer to crimes that are inherently bad or depraved and against the conscience of the common person. However, crime involving moral turpitude (CIMT) is a term of art that is not specifically defined in the INA. Instead, Congress left the phrase to future administrative judicial interpretation. 46 The BIA (Board of Immigration Appeals Review) has defined a CIMT as including: [C]onduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general... Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude... Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind. 47 Additionally, neither the seriousness of the underlying offense or the severity of the resulting punishment is determinative of whether the crime is a CIMT. The vagueness and lack of statutory definition have led to extensive judicial interpretation regarding what types of crimes qualify as a CIMT. Several broad guiding principles can be inferred from the breadth of caselaw: Required Mens Rea: The BIA has consistently held that for a crime to be a CIMT, the statute must require some degree of specific intent, willfulness, or deliberateness. The Eighth Circuit recently stated that CIMTs require that the act was committed intentionally or knowingly but noted that reckless content may be sufficient when an aggravating factor is present. 48 Type of Offense: While there is no hard and fast list, there are certain categories or types of crimes that are generally categorized as CIMT. This includes crimes involving fraud or crimes involving acts of baseness or depravity such as murder, rape, robbery, kidnapping, abuse, incest, etc. 49 C ONSEQUENCES OF A CIMT C ONVICTION A LPR convicted of a CIMT: within five years of admission is removable (so long as the crime carries a maximum sentence of one year, and for which a sentence of at least six months is imposed) convicted of another CIMT not arising out of the same scheme of misconduct is removable. cannot show good moral character 46Bobadilla v. Holder, 679 F.3d 1052, 1054 (8th Cir. 2012) (internal citations omitted). 47In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) (internal citations omitted). 48Hernandez-Perez v. Holder, 569 F.3d 345, 348 (8th Cir. 2009). 49In re Torres-Varela, 23 I. & N. Dec. 78, 84 (BIA 2001). 21

A Non-LPR convicted of a CIMT: becomes immediately removable. becomes inadmissible, unless she falls within one of two exceptions: o Petty Offense Exception: Waives inadmissibility for one CIMT conviction with less than a year maximum sentence and less than six months sentence o Youthful Offender Exception: Waives inadmissibility for one CIMT conviction that was charged as an adult resulting from actions the individual undertook under the age of 18 cannot show good moral character to apply for DACA, DAPA, etc. CONTROLLED SUBSTANCE OFFENSES W HAT IS A C ONTROLLED S UBSTANCE O FFENSE? The INA defines a controlled substance violation as any offense regarding a substance on the Federal Schedule of Controlled substances. 50 Iowa s list of controlled substances includes some substances that are not listed on the Federal Schedule of Controlled Substances, which may provide an opening to challenge removability. In Iowa, convictions for possession of drug paraphernalia are categorically drug-related offenses for immigration purposes. C ONSEQUENCES OF A C ONTROLLED S UBSTANCE O FFENSE A noncitizen convicted of a controlled substance offense is immediately removable unless the conviction was for a single count of possession of 30 grams or less of marijuana DOMESTIC VIOLENCE OFFENSES W HAT IS A D OMESTIC V IOLENCE O FFENSE? The INA defines a domestic violence offense as a crime of violence 51 against a current or former spouse, a fellow parent, someone similarly situated to a spouse under the Practice Tip: Drug-related offenses, including possession of drug paraphernalia, render a noncitizen removable. The only exception is a single conviction of possession of 30 grams or less of marijuana for personal use. This means pleading to a minimal marijuana possession charge may be preferable to pleading to a paraphernalia charge. Example: Your client, a foreign student studying at the local University, is a first time offender who was arrested for possession of a few grams of marijuana and possession of drug paraphernalia. The prosecutor offers to drop the drug possession charge if your client pleads to the paraphernalia. Taking this plea will make your client removable. Instead, you may want to see if the prosecutor will accept a plea to the marijuana possession. In this scenario, be sure the amount and type of drug is included in the plea documents. 50See 21 U.S.C. 812 (2013). 51 Crime of violence is defined in 18 U.S.C. 16 as (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. A conviction for a crime of violence is also independently an aggravated felony if a court imposes a term of imprisonment of one year or more for the offense, regardless of any domestic factor. See 8 U.S.C. 1101(a)(43)(F). 22

domestic or family laws of the state or someone otherwise protected by such laws. 52 This includes a conviction under any domestic assault offense from the Iowa Code that qualifies as a crime of violence. Also, any conviction which meets the definition of crime of violence and is against a domestic victim runs the risk of being a domestic violence offense for immigration purposes, whether or not the crime was charged as a domestic. 53 C ONSEQUENCES OF A D OMESTIC V IOLENCE O FFENSE A non-citizen convicted of a crime of domestic violence: is immediately removable but, if she is an LPR, may be eligible for a special form of waiver from removal if they were not the primary perpetrator of violence in the relationship (among other criteria) 54 moves to priority 2 for removal SIGNIFICANT MISDEMEANORS W HAT IS A S IGNIFICANT M ISDEMEANOR? A significant misdemeanor is not a category of crime defined by the INA, but rather a category used by the Obama administration both in developing the deferred action programs (for more information on deferred action, see page 8) and in outlining the administrations enforcement and removal priorities (for more information on the enforcement priorities, see Appendix E.) Practice Tip: A conviction for OWI or domestic assault is considered a significant misdemeanor and can have immigration consequences. A significant misdemeanor is defined as: an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence) 55 C ONSEQUENCES OF S IGNIFICANT M ISDEMEANORS A noncitizen convicted of a significant misdemeanor moves to priority 2 for apprehension and removal (so long as they are removable). becomes ineligible for administrative relief such as DACA or DAPA (and may have previously awarded relief revoked) cannot show good moral character 52 8 U.S.C. 1227(a)(2)(E)(i). 53 See Appendix F: Additional Considerations: Circumstance Specific Grounds Infra. 54See 8 U.S.C. 1227(a)(7). 55See Johnson Memo supra note 42 at 4. 23

ALL OTHER MISDEMEANORS: Even simple misdemeanors may have immigration consequences for some noncitizens. Simple misdemeanors do not usually include traffic citations. C ONSEQUENCES OF A LL M ISDEMEANORS A noncitizen convicted of 3 or more misdemeanors moves to Priority 2 for enforcement with an aggregate sentence of 90 days Current DACA/DAPA Recipients: becomes ineligible for administrative relief such as DACA or DAPA(and may have previously awarded relief revoked) 24

STEP 4: COUNSEL YOUR CLIENT AND PROVIDE A PADILLA STATEMENT 1. Determine your client's immigration status and time spent in the US 2. Review your client's criminal history 3. Analyze charges using the Iowa Criminal Immigration Consequences Chart 4. Counsel your client and provide a Padilla Statement Counseling noncitizen clients may look differently than simply pleading to the lowest-grade of a crime. The client may need to weigh whether immigration consequences or criminal sentence concerns are the most important. Some clients will want to challenge the charge rather than return to a violent or unstable situation in their country of origin. Others would rather depart voluntarily than face jail time here. Their goals and your defense strategies may reflect their current status and/or their desire to adjust status in the future. 25

IMPACT OF PADILLA V. KENTUCKY The Supreme Court held in Padilla v. Kentucky that because immigration penalties are so intertwined with the outcomes of criminal proceedings, and because immigration consequences are so severe, criminal defense attorneys have a duty under the Sixth Amendment to tell their clients the potential immigration consequences of whatever action they take. 56 Remaining silent on the subject constitutes ineffective assistance of counsel. 57 Therefore, affirmative guidance is required. 58 This requires the attorney to inquire about the immigration status of the client. When the immigration consequences are clear, the defense attorney has a duty to investigate and advise about immigration consequences of plea alternatives and sentencing alternatives. 59 Even when the deportation consequences are unclear, a defense attorney must still advise the client of the potential adverse immigration consequences. 60 Padilla Statement Form: To help aid and document client counseling on immigration consequences, we have provided a fillable form outlining the consequences your client may face. It can be downloaded here. 56Padilla v. Kentucky, 130 S.Ct. 1473, 1480, (2010). 57Id. at 1494. 58Id. at 1480. 59Id. at 1477. 60 Id. 26

APPENDIX A: GLOSSARY OF IMMIGRATION TERMS AND ACRONYMS Term BIA CBP CIMT Consequences DACA DAPA DHS EAD EOIR ICE Immigration Judge INA LPR NTA Relief Removal Definition Board of Immigration Appeals. The board that hears appeals of immigration court decisions and issues opinions and guidance that are binding on immigration courts. Customs and Border Protection Crimes Involving Moral Turpitude. Generally, crimes that are malum in se with a degree of vileness, depravity, and intentionality. Any form of punishment or penalty that may be imposed on a noncitizen because of their immigration status. Deferred Action for Childhood Arrivals. Discretionary relief granted to certain undocumented immigrants who entered the country before their sixteenth birthday. Deferred Action for Parents of Americans. Discretionary relief granted to certain undocumented parents of US citizens and LPRs U.S. Department of Homeland Security Employment Authorization Document. A work permit. Executive Office for Immigration Review Immigration and Customs Enforcement The initial decision maker in most immigration court proceedings, including removal proceedings. Decisions of the Immigration Judge in Immigration Court are appealable to the BIA and then the Federal Courts of Appeals Immigration and Nationality Act. The legislation which includes the bulk of Federal law on immigration and the status and rights of various noncitizens. Lawful Permanent Resident. Green Card Holder. Notice to Appear. A legal document summoning a noncitizen to immigration proceedings. Various forms of statutory exceptions or exemptions from certain immigration consequences or risks. Formerly known as "deportation" (for those already admitted into the country) and "exclusion" (for those not admitted), removal proceedings are the legal mechanism through which the US government can order a noncitizen to leave the country TPS USCIS Temporary Protected Status. Nationals of a foreign country temporarily allowed to stay in the country due to ongoing extreme circumstances in their home country such as armed conflict or natural disaster. U.S. Citizenship and Immigrant Services 27

VAWA Violence Against Women Act 28

APPENDIX B: SAMPLE INTAKE FORM 29

The same intake form is available for download and use with immigrant clients at the Advanced Immigration Law and Policy Website. 61 APPENDIX C: SAMPLE PADILLA FORM 61Immigrant Client Intake Form, ADVANCED IMMIGRATION LAW AND POLICY PROJECT (April 15, 2015), http://ailp.law.uiowa.edu/immigrant-client-intakeform. 30

The same Padilla statement form is available for download and use with immigrant clients at the Advanced Immigration Law and Policy Website. 62 62Immigrant Client Intake Form, ADVANCED IMMIGRATION LAW AND POLICY PROJECT (April 15, 2015), http://ailp.law.uiowa.edu/padilla-statement. 31

APPENDIX D: HOW TO FIND AN IMMIGRANT CLIENT ONLINE DETAINEE LOCATOR SYSTEM 63 The Online Detainee Locator System (ODLS) is an online database provided by ICE to locate detained noncitizens. You can search for your client by two ways: Their A-Number Their personal information ODLS can be accessed here: https://locator.ice.gov/odls/ homepage.do SEARCHING FOR A CLIENT A - NUMBER An A-number is the noncitizen s Alien Registration Number. This number is either 8 or 9 numbers long and can be located on any of the noncitizen s paperwork from ICE or USCIS (for instance a Notice to Appear or their green card). A search by A-number will yield the most exact results. B IOGRAPHICAL I NFORMATION A biographical information search requires: Client name (first and last) Country of origin. Date of Birth Practice Tip: Searching by A-Number will yield the most exact results All of this information must be exact and even exact information runs the risk of returning multiple results. 63Online Detainee Locator System, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, https://locator.ice.gov/odls/homepage.do (last visited April 4, 2015). 32

POSSIBLE ODLS RESULTS: The information provided by ODLS should never be more than 8 hours old. A search will provide one of the following results: Result Meaning Additional Information In Custody Currently being held by ICE ODLS will also provide: The name of the facility where the noncitizen is being held Information about contacting and/or visiting the facility Contact information for the ICE field office Not in Custody No Result Client was in ICE custody but has been released in the last 60 days Either the individual is purposefully unlisted or there has been a delay in processing ADDITIONAL LINKS/INFORMATION responsible for the case Released could either mean full release while the individual awaits the outcome of their immigration proceedings or that the individual has been removed from the country Juveniles are never listed in ODLS Due to threats or extenuating circumstances, some individuals are not listed in ODLS in order to protect their safety. Delays in processing may prevent information from being available immediately In any of these cases, the next step is to contact the regional ICE ERO field office. 64 ICE provides brochures and instructions on how to use ODLS in various languages. Information/FAQs on the ODLS systems: https://locator.ice.gov/odls/about.jsp Brochures on how to use the ODLS systems (in various languages): https://locator.ice.gov/odls/about.jsp 64See Contact ICE: Enforcement and Removal Operations Field Offices, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, http://www.ice.gov/contact/ero (last visited April 4, 2015). 33

APPENDIX E: REMOVAL PRIORITIES Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP) do not have the resources to apprehend, detain, and initiate removal proceedings for every removable immigrant. Therefore, President Obama and Jeh Charles Johnson, Secretary, Department of Homeland Security (DHS), issued a policy memorandum to guide the apprehension, detention and removal of undocumented immigrants. 65 Category Who falls in this category? Implications Priority 1 An Undocumented immigrant Threats to national security convicted of an Iowa felony or any Apprehended at the border or ports of entry noncitizen convicted of an Iowa Convicted of a crime involving criminal street crime classified as a federal gangs or helped a street gang's illegal activity aggravated felony (including Convicted of an offense classified as a felony some Iowa misdemeanors) is a top Convicted of an Aggravated Felony priority for removal. Priority 2 Priority 3 Convicted of 3 or more misdemeanors (other than traffic offenses or state/local immigration offenses) Convicted of a significant misdemeanor Apprehended and cannot establish continuous presence in the US since Jan. 1, 2014. Have, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Center Director, significantly abused the visa or visa waiver program Issued a final order of removal on or after January 1, 2014 Unless they qualify for relief or an immigration officer believes they are not a "threat to the immigration system" or there are other factors suggesting the noncitizen should not be a priority An undocumented immigrant convicted of a single significant misdemeanor or three or more misdemeanors, with the exception of minor traffic offenses, is a high priority for removal. Although Priority 3 is the lowest removal priority, the Removal Priorities Memo still recommends removal of Priority 3 undocumented immigrants. 65 Department of Homeland Security, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014), available at http://www.dhs.gov/sites/default/files/publications/14_1120 _memo_prosecutorial_discretion.pdf [hereinafter DHS Removal Priorities Memo]. 34

APPENDIX F:ANALYZING IMMIGRANTS CRIMINAL CONVICTIONS USING THE CATEGORICAL METHOD The Categorical Method is the analytical framework that immigration courts and courts of appeals use to determine whether a specific crime triggers immigration consequences by determining whether that crime is a match for one of the broad categories set out in the Immigration & Nationality Act (INA) (i.e. crime involving moral turpitude, aggravated felony, crime of violence, etc.). This method boils down to one question: would the behavior necessary to violate the state statue in question always constitute a violation of one of the categories listed in the INA. THE CATEGORICAL METHOD DETERMINE THE FEDERAL DEFINITION COMPARE THE ELEMENTS 1. D ETERMINE THE F EDERAL D EFINITION Performing a categorical analysis requires first and foremost defining the federal or generic crime that would satisfy the crime in question. Generic definitions can be found: In the specific INA provision Sometimes the INA will cite directly to a US code provision, which will provide the specific elements of the generic crime for that INA provision. 66 In BIA opinions and/or circuit case law For INA provisions without citations to a specific US code provision 67, the generic definition comes from case law. These may be definitions the BIA or court takes from accepted common law, the model penal code, or other sources. BIA opinions may provide a generic definition of the crime in question, but individual circuits can accept, completely reject, or alter these definitions on appeal, so each circuit may have different interpretations of the generic crime at issue. For a simple example, consider INA 101(a)(43)(G), which includes a burglary offense for which the term of imprisonment is at least one year. In this case, because the INA doesn t refer to the US code for the definition of burglary, it must be determined by the courts. The BIA and the Supreme Court have agreed 66 See Immigration & Nationality Act 101(a)(43)(E)(i) (2013) (referring specifically to offenses under section 842(h) or (i) of Title 18). 67See Immigration & Nationality Act 101(43)(A) (referring broadly to murder, rape, or sexual assault rather than a specific generic 35

that the general definition of burglary is unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime. 68 2. C OMPARE THE E LEMENTS OF THE S TATE C RIME Once you have found the generic definition for the category at issue, the next step is to compare it to the elements of the state crime. The question is whether the minimum level of conduct required for conviction under the state statute necessarily also violates the generic statute. The Supreme Court clarified in 2013 that when making this determination, it is not an invitation to apply legal imagination to the state offense; there must be a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. 69. In practice, determining whether there is realistic probability turns on showing that someone has been prosecuted for the proposed minimum level of conduct punishable under the statute. If that minimum level of conduct would also necessarily violate the generic statute, then there is a categorical match for the INA category in question. If, however, the state crime penalizes behavior that falls outside the generic definition, the analysis then moves on to the Modified Categorical framework. Continuing with the example of burglary, the comparison is straightforward: IOWA 713.1 Unlawful or unprivileged entry into or remaining in a occupied structure not open to the public with the intent to commit a felony, assault or theft therein GENERIC FEDERAL DEFINITION Unlawful or unprivileged entry into or remaining in a building or structure with the intent to commit a crime CATEGORICAL MATCH Because all behavior that is punishable under the Iowa statute would violate the generic federal definition, there is a match 68 Descamps v. United States, 133 S. Ct. 2276, 2295 (2013) (citing Taylor v. United States, 495 U.S. 575, 599 (1990)). 69 Moncrieffe v. Holder, 133 S. Ct. 1678, 1685 (2013) (quoting Duenas-Alvarez, 549 U.S. 183, 193 (2007)). 36

THE MODIFIED CATEGORICAL METHOD If the two-step categorical method does not result in a categorical match, courts turn to the modified categorical method. The modified categorical method adds a third step that asks whether the state statute is divisible into separate, prosecutable prongs. DETERMINE THE FEDERAL DEFINITION COMPARE THE ELEMENTS LOOK FOR DIVISIBILITY D ETERMINING D IVISIBILITY A state statute is divisible if an individual can be prosecuted under separate, discrete sets of elements within the statute. In Descamps, the Supreme Court held that for a statute to be divisible, the prosecutor must generally select the relevant element from its list of alternatives. 70 And that each of those elements must then be found by a jury beyond a reasonable doubt in order for the individual to be convicted. 71 Practice Tip: Model jury instructions provide a good (though not exhaustive) guide to determining whether a statute is in fact divisible. T HE M ODIFIED C ATEGORICAL A NALYSIS Practice Tip: The record of conviction includes only a limited number of documents: Indictment Plea agreement and accompanying factual statements Jury instructions Under the modified categorical method these are the only documents that may be consulted For a divisible statute, you then repeat the categorical analysis for each prong of the statute i.e. determine whether an individual convicted under each individual prong would necessarily violate the generic crime. If at least one prong would be a categorical match, the court then may consult a limited number of documents referred to as the record of conviction to determine which prong the noncitizen was convicted under. This includes the indictment, the plea agreement and any accompanying factual information, and jury instructions. Because the question in the categorical and modified categorical method is always focused on the facts of conviction rather than the facts, this analysis still should not take into consideration the underlying facts of the conviction merely whether the prong of conviction is a categorical match to the INA category. If the prong is a match, the conviction is a considered a categorical match. If it is not, no immigration consequences may flow from the conviction. 70Descamps, 133 S. Ct. at 2290 71Id. 37

ADDITIONAL CONSIDERATIONS C IRCUMSTANCE S PECIFIC G ROUNDS In 2009 case of Nijhawan v. Holder 72, the Supreme Court specifically took up the section of the INA that makes offense including fraud... in which the loss to the victim... exceeds $10,000 an aggravated felony. 73 In that case, the Court held that the exceeds $10,000 qualifier was not an element of the generic offense in question, and thus that the state statute of conviction did not need to include an element that specifically required that amount. Nijahawan thus distinguished between generic grounds and circumstance-specific grounds for crimes listed in the INA. While generic grounds must be established through the categorical/modified categorical approach (i.e. comparing state statute elements with the federal generic definition), circumstance-specific grounds are inherently fact-based, and therefore courts are free to look at evidence outside of the record of conviction to establish them. GENERIC GROUNDS Have to do with the elements of the crime the INA refers to CIRCUMSTANCE-SPECIFIC GROUNDS Have to do with specific ways the crime was committed on this occasion Can only be determined using standard categorical approach May look at evidence outside of record of conviction to establish Basic assault convictions where the victim had a domestic relationship with the defendant run the risk of being found to be domestic violence offenses for immigration purposes under the circumstance-specific approach. Even where the defendant is not finally convicted of a domestic assault, the Fifth Circuit has ruled that courts may use the circumstance-specific approach to look at the underlying facts of a conviction and determine if the victim had a qualifying domestic relationship. 74 Therefore, the best practice when there is a domestic victim is to avoid a conviction that would qualify as a crime of violence, as this otherwise prevents the conviction from qualifying as a crime of domestic violence. 75 72 Nijhawan v. Holder, 557 U.S. 29 (2009) 73 INA 101(a)(43)(M)(i) (2013). 74See Bianco v. Holder, 624 F.3d 265, 273 (5 th Cir. 2010). 75See Immigration Consequences and Types of Crimes: Domestic Violence Offenses Supra. 38

APPENDIX G: RELIEF FROM REMOVAL There may still be some avenues to stay in the U.S. once a immigrants become removable. There are various forms of relief from removal, but there complexity is beyond the scope of these materials. A defender should contact an immigration attorney if it becomes evident that the client either is already removable or will unavoidably become removable because of an impending criminal conviction. However, a defender may expedite this consultation by being able to do some preliminary screening for possible forms of immigration relief. Below are some examples of forms of relief from removal available to some immigrants. 76 CANCELLATION OF REMOVAL An immigration judge may grant cancellation of removal to an immigrant and thus terminate the removal proceedings against him or her. This grant is at the discretion of the judge, but to even be statutorily eligible for it, different categories of immigrants must meet different criteria. LPRs Non-LPRs Victims of Domestic Abuse They have been a lawful permanent resident for over five years They have resided in the United States continuously for 7 years after being lawfully to the U.S in any status, and They have not been convicted of any aggravated felony 77. They have been physically present in the United States continuously for the 10 years prior to their application for cancellation of removal, During those 10 years they have had good moral character 78 They have not been convicted of any crime that qualifies under an inadmissibility or deportability ground, subject to some waivers for being a victim of domestic violence, and They demonstrate that their removal would result in extreme and unusual hardship for a spouse, child or parent who is an LPR or U.S. Citizen. 79 They or their child have been battered or subjected to extreme cruelty by a U.S. Citizen LPR spouse, 80 Have been physically present for 3 years Had good moral character for 3 years Not been convicted of a crime that qualifies under an inadmissibility or deportability ground, subject to waivers for victims of domestic violence, and Removal would result in extreme hardship to the immigrant, the immigrant s child or parent. 81 76 For more information about these and other forms of discretionary relief, See Kurzban s Immigration Law Sourcebook14 th Ed., 2014 ; Immigration Relief Toolkit For Criminal Defenders, Immigrant Legal Resource Center, 2015, http://www.ilrc.org/files/documents/17_relief_toolkit_jan_2015_final.pdf. 77 [internal citation to aggravated felonies section]. 78 8 U.S.C. 1101(f) 79 8 U.S.C. 1229b(b)(1) 80 The victim, or parent of the victim need not have legitimately married the abusive spouse if they intended to do so but were not able because of the spouses bigamy. 8 U.S.C. 1229b(b)(2)(A)(i)(III). 81 8 U.S.C. 1229b(b)(2)(A). 39

ASYLUM, WITHHOLDING OF REMOVAL, CONVENTION AGAINST TORTURE Asylum, like cancellation, is form of discretionary relief from removal that may be available to immigrants meeting certain statutory criteria. This relief is made to protect those who have been persecuted in their home country, or who have a well-founded fear of being persecuted upon return. To be statutorily eligible for asylum, immigrants must fit the definition of refugee contained in 8 U.S.C. 1101(a)(42)(A). This requires that they are unable or unwilling to return to and/or avail themselves of the protection of their home country, or country of last habitual residence, because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.] 82 An immigrant must apply for asylum within one year of when he or she entered the U.S. unless the immigrant can prove extenuating circumstances. 83 If the immigrant has missed this deadline and cannot prove such circumstances, he or she may still be eligible for withholding of removal or, if he or she can show that it is more likely than not that the immigrant will be tortured upon return, relief under the Convention Against Torture (CAT). 84 DEFERRED ACTION D EFERRED A CTION FOR C HILDHOOD A RRIVALS (DACA) An immigrant may also apply for DACA in removal proceedings for relief. To be eligible for DACA, in its current form, an immigrant must Have been physically present in the U.S. without lawful status and under the age of 31 on June 15, 2012, Have arrived in the U.S. before his or her 16 th birthday, Have maintained continuous residence in the U.S. since June 15, 2007, Currently be in school or have obtained a high school diploma or GED, or have been honorably discharged from the U.S. Coast Guard or Armed Forces Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and not otherwise pose a threat to national security. 85 The federal government is currently in the process of releasing a new form of DACA, which alters some of the eligibility requirements for the program. Under this DACA II, the 31 year age limitation should be removed and the start date of continuous permanent residence should be January 1, 2010. 86 D EFERRED A CTION FOR P ARENTS OF A MERICANS OR L AWFUL P E RMANENT R ESIDENTS 82 8 U.S.C. 1101(a)(42)(A). 83 8 U.S.C. 1158(a)(2)(B); (D). 84See 8 U.S.C. 1231(b)(3); 8 C.F.R. 208.16 85Consideration of Deferred Action for Childhood Arrivals, USCIS, http://www.uscis.gov/humanitarian/consideration-deferred-action-childhoodarrivals-daca. 86Executive Actions on Immigration: Deferred Action for Childhood Arrivals (DACA) program, USCIS, http://www.uscis.gov/immigrationaction. 40

On November 20, 2014, President Obama also announced a follow up program to DACA that would extend similar administrative relief to certain noncitizen parents of US citizens and LPRs. As of April 2015, the program has not yet begun accepting applications. 87 VOLUNTARY DEPARTURE Although a form of relief, if an immigrant is granted voluntary departure during removal proceedings this does not prevent him or her from being required to leave the country. What it does do, however, is lower the restrictions about re-entering the United States. Generally, if an immigrant is ordered removed from the U.S., they may not legally return to the U.S. for 10 years on a first removal order, 20 for the second and permanently if he or she has been convicted of an aggravated felony. 88 If the immigrant re-enters or is found attempting to re-enter the U.S. during one of these statutorily barred periods, this is a federal felony. 89 This felony is subject to drastic sentencing increases if the immigrant was originally removed on the basis of criminal convictions; a person removed because of an aggravated felony may be sentenced up to 20 years. 90 However, if, rather than being ordered removed, the immigrant is granted voluntary departure, the bar on his or her re-entry into the U.S. only lasts 3 years. 91 87See supra note 11 and accompanying text. 88 8 U.S.C. 1182(a)(9)(A)(ii). 898 U.S.C. 1326(a). 90 8 U.S.C. 1326(b) 91 8 U.S.C. 1182(b)(i)(I) 41