Problems facing Non-Citizens in Court

Presented by: Mira Mdivani

Angela WilliamsStephen Blower

Part I: Cr-immigration: How to Comply

with Padilla without Losing

Your Mind!

What does Padilla Say?

Padilla was an LPR

Veteran

Many many years in US

Charged with possession with intent to distribute a boat load of pot

Lawyer advised (incorrectly) that since he was a vet and had been here so long, he would not have any problems

Main opinion: When the consequence is clear the advice needs to be equally clear. When the consequence is less clear one only need advise that there may be consequences

Concurrence: Wanted to limit it to affirmative mis-advice

Dissent: This is a collateral consequence, therefore even wrong advice is not IAC

Clear Consequences…(sort of)

Aggravated Felony (8 USC § 1101(a)(43))

Inadmissible Crime (INA § 212(a)(2)(A)) (Cant get into the US)

Deportable Crime (INA § 237(a)(2)(A)) (Kicks you out)

Step 1: Are you a US Citizen?

Are you a Naturalized USC?

Step 2: As Clear as it Gets

Is it an Aggravated felony? § 101 (43)(a)

Is it in the inadmissibility section? § 212(a)(2)(A)

Is is in the Deportation section?§ 237(a)(2)(A)

If it looks like a duck…

Warnings Agg Felon: This conviction will…

Warnings for inadmissibility

Warnings for Deportability

What is not Clear: CIMTs and

COV

CIMTs= Crimes involving moral turpitude

Extremely difficult to determine; depends on wording of statute

Base, vile and depraved and violates acceptable moral standards.

More than negligence

Must have specific intent (maybe reckless)

COV= Crimes of violence

Can avoid this if sentence is less than a year.

If not, if it is in the ball park of force or violence or something from which violence is likely to occur, maybe a problem

CLEAR AS MUD Warnings:

There may be serious immigration consequences

to this conviction, you should seek advice of an

immigration attorney

Other Cr-immigration Problems

Drug Convictions: Only exception for less than 30g of MJ= Must state the amount and must state the drug in sentencing

Any other drug = BAD

Any mention of trafficking= Bad

In sentencing: the wording of the statement of facts and what is said on the record is important

Sentences

SIS, SES, Expunged records, No Contest, Alfrord Pleas, juvenile adjudications, setting aside the guilty plea or vacating the plea all can cause problems

Diversions or pre-trial adjudications can cause problems if you admit to the essential elements of the crime

Actual times served usually doesn’t matter it is the sentence imposed that is important

One more thing…..

Chaidez vs. US (no. 11-820 Feb. 20, 2013)

PADILLA NOT RETROACTIVE

Part II: Civil Court

The Landmines Continue

Non-Criminal Issues for Non Citizens in

Court Orders of protection (or violations of them) & Civil

Contempt

Divorce or annulment : Before petition is approved, continued obligation under affidavit of support

Child Custody and International Kidnapping

Child Support failure to pay child support

Abused abandoned or neglected undocumented kids

Guardianships