Advocating For Noncitizen Crime Survivors With Criminal Convictions______________________ASISTA Webinar Presented By:Ann Benson & Sonia ParrasJune 13, 2011This project is supported by Grant No. 2009TAAXK009 awarded by the United States Department of Justice, Office on Violence Against Women. The opinions, findings, and recommendations expressed in this document are those of the author (s) and do not necessarily reflect the views of the United States Department of Justice, Office on Violence Against Women.

Getting Help On Your Case The Washington Defender Associations Immigration Project is part of the ASISTA team and available to provide case analysis and problem solving to immigrant survivor advocates.

To contact WDAs Immigration Project for assistance email Jonathan Moore at jonathan@defensenet.orgAnn Benson at defendimmigrants@aol.com.

You can also call us at 206-623-4321.

Goals of PresentationProvide an overview of primary crimes-related provisions of immigration law Outline key concepts in analyzing the immigration consequences of criminal convictions

Apply these understandings assist advocates to more effectively represent self-petitioners and U visa applicants with criminal issues.

Overview of PresentationNecessary tools

Crime-related immigration provisions

Convictions & sentences under the INA

Overview of the categorical analysis

Crimes & self-petitions

Crimes and U visa applications

Necessary Tools Immigration & Nationality Act;

Copy of the criminal statute at issue;

Copy of the criminal record of conviction;

Access to crim-imm resources

Necessary ToolsFor assistance in obtaining the necessary criminal documents see: Step One In Representing Noncitizens With Criminal History: Obtaining Relevant Information About the Criminal Case by Ann Benson, Directing Attorney of Washington Defender Associations Immigration Project.

Published in Vol. X, Issue X of the ASISTA newsletter and available at www.asista.org

Necessary Tools Crim-Imm resources Immigrantion Advocates Networkwww.immigrationadvocates.org

Defending Immigrants In the Ninth Circuit, by Kathy Brady et.al, and other materials from:The Immigrant Legal Resource Center www.ilrc.org

Immigration Law and Crimes, by Dan Kesselbrenner and Lory RosenbergNational Immigration Project of the National Lawyers Guild - www.nationalimmigraitonproject.org

Primary Crime-Related Provisions of Immigration Law

Grounds of Inadmissibility

Grounds of Deportability

Aggravated Felony Definition

Good Moral Character Bars

Grounds of Inadmissibility - 8 USC 1182;INA 212 Apply To:

Any noncitizen seeking entry to US

Any noncitizen applying for lawful status

When ICE /DHS seeks to remove/deport Undocumented persons who illegally entered US

LPRs who apply for citizenship

Crime-Related Grounds of Inadmissibility INA 212

Crimes of Moral TurpitudeEXCEPTION: juvenile offenseCommited before 18 yrs old and 5 years before admissionEXCEPTION: One petty CIMT offenseMax possible sentence not > 1yr ; actual sentence not > 6 months (including time suspended)

Crime-Related Grounds of Inadmissibility

Controlled Substance ViolationsPossible waiver for first-time simple possession of 30g or less marijuana

2 or more convictions where aggregate sentence is 5 years or more

Crime-Related Grounds of InadmissibilityConduct based grounds - no conviction required

Reason to believe involvement in drug trafficking, or received proceeds from family member who is/was;Determined to have physical/mental disorder that poses threat;Determined to be drug abuser;Engaged in prostitution (but not johns).

Crime-Related Grounds of InadmissibilityReview QuestionsJames is undocumented but married to a U.S. citizen. Under what circumstances do the inadmissibility grounds apply to him?

How will a misdemeanor theft conviction impact him?A DV assault conviction?A conviction for attempted possession of cocaine?

Crime-Related Deportation Grounds (8 USC 1227) Apply To:

Apply to noncitizens lawfully admitted:LPRs, CPRs, asylees and refugees;Nonimmigrant visa holders (even if expired)

Legal grounds for removing people with lawful status/who were lawfully admittedDo not apply:To undocumented people (cancellation exception)To persons applying for lawful status

Grounds of DeportabilityOne Crime Invovling Moral Turpitude (CIMT)Committed w/in 5 years of admissionCarry maximum POSSIBLE sentence of 1 year or moreTwo CIMTsRegardless of when committed or sentence

Grounds of DeportabilityAggravated Felony (see next section)

Controlled substance violationsException: single offense for simple possession of 30 grams or less

Firearms convictions

Ground of Deporation

Domestic Violence OffenseAfter Sept. 30, 1996Must be crime of violence per 8 USC 16Committed against personw/whom D has qualifying relationship

Judicial determination of Protection/no contact order violationNo conviction required

Grounds of DeportationReview QuestionsCindy is an LPR convicted of possession of a C/S. Do the grounds of deportation apply to her? Why? Which one? How could it be possible that she would not be deportable? What if she is convicted of theft? Under what circumstances would she be deportable? Not deportable?

Aggravated Felony Provision 8 USC 1101(a)(4321 provisions under definitionincorportates hundreds of offensesTriggers harshest consequencesMandatory detentionSevere restrictions on due processIneligibility for many benefits/statusVirtually certain removal

Aggravated FeloniesState classification irrelevant misdemeanors can be AFE.g theft w/365 day sentenceHighest priority for removalConviction requiredIncreases sentence enhancements in illegal reentry prosecutions

AF Definition Applies to ALL AF IS NOT ground of inadmissibility, but non-LPRs w/AF may be subject to expedited removal per 238(b)

AF IS a ground of deportationWill trigger deportation for LPR/Refugee w/bars on most avenues for relief

Aggravated Felonies Selected Provisions

Murder, rape, Sexual Abuse of a Minor

Drug trafficking

Firearms offenses

Crimes of violence with one year sentence

Aggravated Felonies Selected Provisions

Theft, Possession of stolen property, burglary with one year sentence imposed

Crimes of fraud or deceit where loss = $10k or more

Failure to appear

Attempt or conspiracy to commit any listed offense

Aggravated Felonies Review QuestionsAre the following convictions AF:Misdemeanor assault w/365 day sentence?Felony Assault with 6 month sentence?Theft with 365 day sentence where 364 days is suspended?Burglary with 12 month sentence?DUI with 365 day sentence?Vehicular Homicide with 3 year sentence?Statutory rape (sex w/minor)Possession of a controlled substance?

Selected Crime-related Good Moral Character Bars INA 101(f)

101(f)3 incorporates the crime-related grounds of inadmissibility at INA 212(2)101(f)(7) - Confined to jail for 180 days or more (aggregated)101(f)(8) - Aggravated felony convictions

Convictions Under Immigration LawINA 101(a)(48)(A)

Formal judgment of guilt by court, orDeferred Adjudication = conviction if:Finding of guilt orAdmission of guilt orAdmission of Facts Sufficient to warrant finding of guilt andJudge orders punishment or restraint

Convictions Under Immigration LawDeferred/Withheld Adjudications

Often used in minor first-time offenses where defendant agrees to comply w/conditions for period and then case dismissed.

These are convictions under immigration law forever where deferral requires admission of guilt or stipulation to facts sufficient.Even where successfully completed and dismissed

Convictions under Immigration Law These do NOT constitute convictions:

Juvenile disposition (in juvenile court);

Conviction on direct appeal of right;

Infractions

Post Conviction Relief PCR vacations work if record shows underlying legal defect not just for immigration purposes

Most state expungements do not eliminate conviction for immigration purposes

PCR to modify sentence (e.g. 365 to 364) WILL be given effect (regardless of basis)

Convictions Key Questions Does the immigration statute applicable in your case require a conviction?

If so, based on the criminal records, does your client have a conviction?

Sentence Definition 8 USC 1101(a)(48)(B)

Includes the period of incarceration or confinement ordered by a court regardless of any suspension of the imposition or execution of the sentence in whole or in part. Example:365 days imposed with 364 days suspended = 365 for immigration purposes.

Sentences

Certain misdemeanors with 365 day sentences = aggravated felonies (e.g. theft and assault).

Exceptions:

Certain Bars triggered by amount of time served regardless of actual sentence imposedExample: GMC bar where 180 days served

Crimes Involving Moral Turpitude (CIMT)Inadmissibility Ground Petty Offense ExceptionDeportation Ground 1 CIMT

Definition of SentenceINA 101(a)(48)(B)Deferred Sentences do not count if no actual time was imposed on judgment (check your state laws);

Does not include any period of probation or community custody UNLESS imposed as condition of probation or b/c of probation violation

Sentences Key QuestionsDetermine what the actual sentence imposed is (regardless of time suspended).

Determine if possible crime-related immigration provisions are triggered due to the sentence.

Convictions & Sentences Review QuestionsAngela is charged with misdemeanor theft. Would the following be a conviction? What are the sentencing implications? What additional information would you want?12 month deferred adjudication agreement?Guilty plea with 12 month deferred sentence?Plea w/365 day sentence? 364 days?Plea to attempted theft with 90 day sentence?

Analyzing The Impact of A ConvictionStep 1: Existence of ConvictionDoes not necessarily determine that it triggers immigration penalty

Step 2: Identify possible crime-related immigration provisions

Step 3: Use categorical analysis to determine if this conviction triggers the immigration penalty

Step 4: If yes, identify possible waivers

Categorical AnalysisAnalytical Process sanctioned by US Supreme Court to determine whether elements required for conviction under state/federal criminal statute sufficiently match the elements of the relevant crime-related immigration provision

Example: Does this state misdemeanor assault conviction constitute a crime of violence under the agg felony (or DV deportation ground)?

Categorical AnalysisThe analysis does not focus on conduct of defendant (what she did or did not do) but on the elements required for conviction as set forth in the statute of conviction or, where applicable, the record of conviction.

Categorical Analysis Step OneStep 1A: Identify elements of the generic definition of the immigration provision at issue

Some defined by reference to a federal criminal statute (e.g. crime of violence is defined by reference to 18 USC 16)If no reference to federal statute, then defined by the courts/caselaw (e.g. crimes involving moral turpitude)

Categorical Analysis Step OneStep 1B: Compare the elements of the generic definition to the elements required for conviction under the criminal statute of conviction.Imperative to locate a copy of the statute of conviction

Categorical Analysis Step OneIf elements of statute of conviction sufficiently match generic definition, then the conviction categorically falls within the immigration provision and triggers the penalty

Key is to focus on the ELEMENTS required for conviction

Categorical Analysis Step OneImportant to identify the elements required for conviction under the criminal statute

Look to criminal statute and caselaw interpreting it to determine the elements required for conviction

Categorical Analysis If statute not categorical match, then conviction does not fall within the immigration provision. HOWEVER,

May require STEP TWO analysis b/c crim statute is overbroad or divisible because either:1. it includes multiple offenses 2. multiple ways to commit the offense

Only some of which have elements that match the generic definition

Categorical Analysis Step TwoStep Two or modified categorical analysis

Look to the record of conviction to determine the specific elements required for this conviction

Compare these specific elements to generic definition

If ROC doesnt establish which part of criminal statute was basis for conviction, then it doesnt trigger immigration provision

Documents Included In the Record of ConvictionInformation in the charging papers (however, only the count that has been pled to or proved, not original charges that have been amended or dismissed charges); The judgment of conviction; Jury instructions; A signed guilty plea or a written plea agreement; The transcript from the plea proceedings; and Sentence & transcript from sentencing hearing.

Record of Conviction DOES NOT INCLUDE:

Prosecutors remarks during the hearing; Police reports;The affidavit of probable cause;Probation or pre-sentence reports; Statements by the noncitizen outside of the judgment and sentence transcript (e.g., to police or immigration authorities or the immigration judge);A court docket summary prepared by clerical staff;Information from a co-defendants case.

CONT.

WARNING! The police report and/or affidavit of probable cause WILL BE INCLUDED in the ROC if it is incorporated into the plea statement as the factual basis for the plea.

Categorical Analysis Step TwoDefendants plea statement most important document

Charging papers or judgment & sentence alone are insufficient to establish elements of conviction where statute is overbroad or divisible

Categorical AnalysisIt is imperative to consult with additional resources and experienced practitionersSee Chapter 2 of Defending Immigrants in the Ninth Circuit for detailed analysis

Read BIA and circuit court decisions to understand how the BIA and your circuit view and apply the categorical analysis

Categorical Analysis Step TwoExamples:1. Washington State Felony Assault 3rdStatute has 8 different prongs that are 8 separate crimes, only some of which have elements that are CIMTs

2. Washington State Misdemeanor Assault 4 defined by caselaw to include multiple ways to commit the offense, only not all of which are crimes of violence under 18 USC 16 (as required for agg felony or DV deportation).

Crimes and VAWA Self-PetitionsAlways two steps:

1. Is applicant statutorily eligible?

2. Does applicant warrant a favorable exercise of discretion?

Crimes & VAWA Self-PetitionsDoes the conviction/conduct trigger any GMC statutory bars?101(a)(3) 212(a)(2)s inadmissibility grounds?101(a)(7) served 180 days in jail?101(a)(8) aggravated felony conviction?

Crimes & VAWA Self-PetitionsDoes categorical analysis provide basis to argue conviction does not trigger GMC bars? (especially unwaivable agg felony bar)

Example: Can you use the categorical analysis to argue that the assault conviction is not a crime of violence and, thus, even though 365 day sentence, NOT an agg felony?

Crimes & VAWA Self-Petitions204(a)(1)(C) Waiver for GMC Bars

Is a waiver available for this conviction for purposes of determining inadmissibility or deportability?

Is the conduct/conviction connected to the abuse?

Crimes & VAWA Self-PetitionsConsult CIS GMC Memo 1/19/05

Memo advises reference to 8 CFR 212.7(d) where conviction is for violent or dangerous offense

Memo asserts any aggravated felony is per se bar to GMC b/c no waiver availableBUT for those convictions that are agg felonies AND CIMT (e.g. theft conviction w/365 day sentence) argue that as CIMT, offense is waivable per 212(h)

Crimes & VAWA Self-PetitionsIn addition to establishing statutory eligibility for GMC applicant must also establish that she warrants favorable exercise of discretion.

Crimes & VAWA AdjustmentDoes conviction/conduct trigger any statutory grounds of inadmissibility under 212(a)(2)?

Can you use categorical analysis to argue that it does not?

If not, can she qualify for 212(h)(1)(C) waiver?

Crimes & VAWA Adjustment212(h)(1)(C) DOES WAIVE:CIMT offensesFirst time simple possession < 30g marijuanaProstitution (note limitations)

DOES NOT WAIVE:Any other type of drug offense (no waivers)8 CFR 2127(d) limitation on exercise of discretion where violent or dangerous offense

Crimes & U Visa ApplicantsAlways two steps:

1. Is applicant statutorily eligible?

2. Does applicant warrant a favorable exercise of discretion?

Crimes & U Visa Applicants

Does conviction/conduct trigger any crime-related bars under 212(a)(2)s grounds of inadmissibility?If so, is she eligible for 212(h) waiver?

Crimes & U Visa ApplicantsIf not, does she qualify for 212(d)(14) waiver?

Gives AG discretion to waive any ground of inadmissibility under 212(a) including crimes grounds at (a)(2)Exception: nazi persecutors and torturers