representing the criminally charged alien c 2008 daniel c. lemley may be used for educational...

REPRESENTING THE REPRESENTING THE CRIMINALLY CHARGED CRIMINALLY CHARGED

ALIENALIEN

c 2008 Daniel C. Lemleyc 2008 Daniel C. Lemley

May be used for educational May be used for educational purposes without permissionpurposes without permission

Thanks to AILA Link for use of their materials in this and the written accompanying materials. Materials used with permission.

THE NUMBERS GAME

None is the most wonderful number for crimes relating to an Alien,

Two can be very bad regardless of the actual crime charged and or convicted.

COMMON MISPERCEPTIONSCOMMON MISPERCEPTIONS

““I have been practicing criminal law for a million I have been practicing criminal law for a million years and I know what an aggravated felony is years and I know what an aggravated felony is and this ain’t it. Don’t worry about what effect it and this ain’t it. Don’t worry about what effect it will have on your immigration case.”will have on your immigration case.”

““You are undocumented, well shucks, I can’t find You are undocumented, well shucks, I can’t find my birth certificate either.”my birth certificate either.”

““You only stole a bottle of men’s cologne twenty You only stole a bottle of men’s cologne twenty years ago, never served a minute, why that ain’t years ago, never served a minute, why that ain’t a problem.” a problem.”

My FavoriteMy Favorite

““So your wife got drunk, started screaming So your wife got drunk, started screaming and hitting on you. Neighbor called the and hitting on you. Neighbor called the police and arrested both of you. Well if this police and arrested both of you. Well if this is your first offense we will just get both of is your first offense we will just get both of you to say you are sorry and go to them you to say you are sorry and go to them classes and the Court will dismiss your classes and the Court will dismiss your case. That won’t cause you a problem with case. That won’t cause you a problem with immigration and you will thank me for immigration and you will thank me for doing you a great job and pay double my doing you a great job and pay double my normal fee.”normal fee.”

REPRESENTING THE ALIEN REPRESENTING THE ALIEN IN THE INITIAL CHARGEIN THE INITIAL CHARGE

Throw away all preconceived notions. Throw away all preconceived notions. Assume ALL convictions may be a Assume ALL convictions may be a

problem.problem. Immigration definition of “conviction” is Immigration definition of “conviction” is

broad.broad. Aggravated Felony, totally rethink your Aggravated Felony, totally rethink your

understandingunderstanding


Certain crimes make the Alien Certain crimes make the Alien inadmissible or removable.inadmissible or removable.

Though already legally admitted, lawfully Though already legally admitted, lawfully present and in status still must be present and in status still must be “admissible” to get certain benefits.“admissible” to get certain benefits.

Even if a LPR and not removable certain Even if a LPR and not removable certain convictions still bar or delay becoming a convictions still bar or delay becoming a USC USC


An ounce of prevention is An ounce of prevention is worth a Pound of collateral worth a Pound of collateral attack.attack.

Eventually the Alien will be Eventually the Alien will be in front of Department of in front of Department of Homeland Security, Either…Homeland Security, Either…


USCIS, Benefits USCIS, Benefits branch,branch,

They Stand on Guard They Stand on Guard to serve and protectto serve and protect

OrOr


ICEICE


Conviction defined for immigration purposesConviction defined for immigration purposes 101(a)(48)(A) The term "conviction" means, with respect to an alien, 101(a)(48)(A) The term "conviction" means, with respect to an alien,

a formal judgment of guilt of the alien entered by a court or, if a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—adjudication of guilt has been withheld, where—

101(a)(48)(A)(i) a judge or jury has found the alien guilty or the alien 101(a)(48)(A)(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 has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, andsufficient facts to warrant a finding of guilt, and

101(a)(48)(A)(ii) the judge has ordered some form of punishment, 101(a)(48)(A)(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.penalty, or restraint on the alien's liberty to be imposed.

101(a)(48)(B) Any reference to a term of imprisonment or a 101(a)(48)(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.imprisonment or sentence in whole or in part.

INA Section 101(a)(48) definition of “Conviction” Copied from AILA INA Section 101(a)(48) definition of “Conviction” Copied from AILA Link Primary Sources INA.Link Primary Sources INA.


Aggravated felony defined for immigration purposes very Aggravated felony defined for immigration purposes very broadbroad

Rapes, murders, child abusers, kidnappers we Rapes, murders, child abusers, kidnappers we understand, BUTunderstand, BUT

101(a)(43)(G) a theft offense (including receipt of stolen 101(a)(43)(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of property) or burglary offense for which the term of imprisonment at [sic] least 1 year;imprisonment at [sic] least 1 year;

101(a)(43)(F) a crime of violence (as defined in section 101(a)(43)(F) a crime of violence (as defined in section 16 of title 18, United States Code, but not including a 16 of title 18, United States Code, but not including a purely political offense) for which the term of purely political offense) for which the term of imprisonment at least 1 year;imprisonment at least 1 year;

Check the list. Check the list.


Crime of Moral turpitude more traditional Crime of Moral turpitude more traditional definition.definition.

““We have held that moral turpitude refers We have held that moral turpitude refers generally to conduct that is inherently base, generally to conduct that is inherently base, vile, or depraved, and contrary to the vile, or depraved, and contrary to the accepted rules of morality and the duties accepted rules of morality and the duties owed between persons or to society in owed between persons or to society in general.general. Matter of L-V-C-, Interim Decision 3382 Matter of L-V-C-, Interim Decision 3382 (BIA 1999) (BIA 1999)


Why it Matters.Why it Matters. Admissibility under section 212. Can’t Admissibility under section 212. Can’t

come here, come back here, or get come here, come back here, or get benefits herebenefits here

Removability under section 237. Go home Removability under section 237. Go home with or without family to good or bad with or without family to good or bad circumstances.circumstances.

Convictions are retroactive to immigration Convictions are retroactive to immigration benefits.benefits.


Admissibility section 212 highlights.Admissibility section 212 highlights. 212(a)(2)(A)(i)(I) a crime involving moral turpitude (other than a purely political 212(a)(2)(A)(i)(I) a crime involving moral turpitude (other than a purely political

offense) or an attempt or conspiracy to commit such a crime, oroffense) or an attempt or conspiracy to commit such a crime, or 212(a)(2)(A)(i)(II) a violation of (or a conspiracy or attempt to violate) any law or 212(a)(2)(A)(i)(II) a violation of (or a conspiracy or attempt to violate) any law or

regulation of a State, the United States, or a foreign country relating to a regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)),Act (21 U.S.C. 802)),

212(a)(2)(A)(ii)(II) the maximum penalty possible for the crime of which the alien 212(a)(2)(A)(ii)(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately months (regardless of the extent to which the sentence was ultimately executed).executed).

212(a)(2)(B) Multiple criminal convictions.—Any alien convicted of 2 or more 212(a)(2)(B) Multiple criminal convictions.—Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement [Ed note] were 5 turpitude, for which the aggregate sentences to confinement [Ed note] were 5 years or more is inadmissible.years or more is inadmissible.

Family can pay for sins of the sinner, prostitutes, drug traffickers, terrorists etcFamily can pay for sins of the sinner, prostitutes, drug traffickers, terrorists etc


Removability highlights.Removability highlights. 237(a)(2)(A)(i)(I) is convicted of a crime involving moral turpitude committed 237(a)(2)(A)(i)(I) is convicted of a crime involving moral turpitude committed

within five years (or 10 years in the case of an alien provided lawful permanent within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j)) after the date of admission, andresident status under section 245(j)) after the date of admission, and

237(a)(2)(A)(i)(II) is convicted of a crime for which a sentence of one year or 237(a)(2)(A)(i)(II) is convicted of a crime for which a sentence of one year or longer may be imposed.longer may be imposed.

is deportable.is deportable. 237(a)(2)(A)(ii) Multiple criminal convictions.—Any alien who at any time after 237(a)(2)(A)(ii) Multiple criminal convictions.—Any alien who at any time after

admission is convicted of two or more crimes involving moral turpitude, not admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single confined therefore and regardless of whether the convictions were in a single trial, is deportable.trial, is deportable.

237(a)(2)(A)(iii) Aggravated felony.—Any alien who is convicted of an 237(a)(2)(A)(iii) Aggravated felony.—Any alien who is convicted of an aggravated felony at any time after admission is deportable.aggravated felony at any time after admission is deportable.

237(a)(2)(B)(i) Conviction.—Any alien who at any time after admission has been 237(a)(2)(B)(i) Conviction.—Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single offense involving possession for one's Act (21 U.S.C. 802)), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.own use of 30 grams or less of marijuana, is deportable.


ANDAND 237(a)(2)(E) Crimes of Domestic 237(a)(2)(E) Crimes of Domestic

violence, stalking, or violation of violence, stalking, or violation of protection order, crimes against protection order, crimes against children and. Whole list of DV crimes in children and. Whole list of DV crimes in section “E”.section “E”.

AND lots of other stuff.AND lots of other stuff.


What is a poor practitioner to do?What is a poor practitioner to do?

REPRESENTING THE ALIEN REPRESENTING THE ALIEN IN THE INITIAL CHARGEIN THE INITIAL CHARGE• Remember prosecutors are people to. Remember prosecutors are people to.

Educate them. Diversion plans are often Educate them. Diversion plans are often no good and convictions apply no good and convictions apply retroactively to most immigration benefits.retroactively to most immigration benefits.

• Fully inform your client, in advise and in Fully inform your client, in advise and in the guilty plea colloquy.the guilty plea colloquy.

• Advisement may be could have bad and Advisement may be could have bad and non repairable consequences to any non repairable consequences to any immigration case.immigration case.

• BUT MOST IMPORTANTLY!BUT MOST IMPORTANTLY!


• Don’t let the Tail wag the dog.Don’t let the Tail wag the dog.

• ““You need to consider the You need to consider the immigration problems caused by a immigration problems caused by a conviction for Capital Murder for the conviction for Capital Murder for the Murder after sexually assaulting a Murder after sexually assaulting a Child when the Prosecutor is offering Child when the Prosecutor is offering LWOP instead of Death”LWOP instead of Death”

REPRESENTING THE ALIEN REPRESENTING THE ALIEN IN COLLATORAL ATTACK OF IN COLLATORAL ATTACK OF A PREVIOUS CONVICTIONA PREVIOUS CONVICTION

• Best option is not to be in this fight, Best option is not to be in this fight, however, often you do not have a choice.however, often you do not have a choice.

• Most common scenario is alien has applied Most common scenario is alien has applied for adjustment and been denied and put for adjustment and been denied and put into proceedings or has been picked up into proceedings or has been picked up and put into proceedings.and put into proceedings.

• Time becomes of the essence. Gets Time becomes of the essence. Gets removed in Immigration Court, sent home removed in Immigration Court, sent home then the conviction gets set aside. May then the conviction gets set aside. May then have other admissibility problems.then have other admissibility problems.


• Conviction being set aside for Non-Conviction being set aside for Non-Constitutional/Statutory grounds, ie. Constitutional/Statutory grounds, ie. immigration purposes, not much help immigration purposes, not much help in the removal case. in the removal case. See Matter of See Matter of Pickering,Pickering, 23 I & N Dec. 621 (BIA 23 I & N Dec. 621 (BIA 2003). 2003).

• Constitutional/Statutory Grounds Constitutional/Statutory Grounds must be in the Ordermust be in the Order


• Rule 32 is the remedy. Rule 32, Rule 32 is the remedy. Rule 32, Alabama Rules of Criminal Procedure.Alabama Rules of Criminal Procedure.

• Rule 32.1 Scope of RemedyRule 32.1 Scope of Remedy

• Rule 32.2 Preclusions of Remedy.Rule 32.2 Preclusions of Remedy.


• Rule 32.1 Rule 32.1 • Highlights.Highlights.• (a)(a) The constitution of the United States or of the State of Alabama requires a new trial, a new The constitution of the United States or of the State of Alabama requires a new trial, a new

sentence proceeding, or other relief.sentence proceeding, or other relief.• (b)(b) The court was without jurisdiction to render judgment or to impose sentence. The court was without jurisdiction to render judgment or to impose sentence.• (c)(c) The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized

by law.by law.• (d)(d) The petitioner is being held in custody after the petitioner's sentence has expired. The petitioner is being held in custody after the petitioner's sentence has expired.• (e)(e) Newly discovered material facts exist, which require that the conviction or sentence be vacated Newly discovered material facts exist, which require that the conviction or sentence be vacated

by the court, because:by the court, because:• (1) The facts relied upon were not known by the petitioner or the petitioner's counsel at the time of (1) The facts relied upon were not known by the petitioner or the petitioner's counsel at the time of

trial or sentencing or in time to file a post trial motion pursuant to Rule 24, or in time to be included trial or sentencing or in time to file a post trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;through the exercise of reasonable diligence;

• (2) The facts are not merely cumulative to other facts that were known;(2) The facts are not merely cumulative to other facts that were known;• (3) The facts do not merely amount to impeachment evidence;(3) The facts do not merely amount to impeachment evidence;• (4) If the facts had been known at the time of trial or of sentencing, the result probably would have (4) If the facts had been known at the time of trial or of sentencing, the result probably would have

been different; andbeen different; and• (5) The facts establish that the petitioner is innocent of the crime for which the petitioner was (5) The facts establish that the petitioner is innocent of the crime for which the petitioner was

convicted or should not have received the sentence that the petitioner received.convicted or should not have received the sentence that the petitioner received.• (f)(f) The petitioner failed to appeal within the prescribed time from the conviction or sentence itself The petitioner failed to appeal within the prescribed time from the conviction or sentence itself

or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner's part.without fault on the petitioner's part.


• Rule 32.2 Preclusion HighlightsRule 32.2 Preclusion Highlights

• Could have should have.Could have should have.

• Did done.Did done.

• Been there done that.Been there done that.

• Its been a long long time.Its been a long long time.


• My Hero Justice Carnes.My Hero Justice Carnes.• Full fair trip theory.Full fair trip theory.• Don’t have to advise the Defendant Don’t have to advise the Defendant

everything for valid conviction.everything for valid conviction.• Ninth Circuit some help. Ninth Circuit some help. United United

States v. KwanStates v. Kwan, No. 03-50315 (9th Cir , No. 03-50315 (9th Cir May 12, 2005) .May 12, 2005) .

• But don’t count on it here.But don’t count on it here.


• Remember Prosecutors are people Remember Prosecutors are people to!!to!!

• Educate them. Educate them.

• They need something to hang their They need something to hang their hat on and fairness and consistency hat on and fairness and consistency important factor.important factor.


• If it ain’t by agreement tough fight.If it ain’t by agreement tough fight.

• Glorious victory followed by ignominious Glorious victory followed by ignominious defeat.defeat.

• Rule 32, granted over prosecutor’s Rule 32, granted over prosecutor’s objection. Victim in town and the police objection. Victim in town and the police officer is available. Former misdemeanor officer is available. Former misdemeanor probation case reinstated to become a probation case reinstated to become a felony time to serve case.felony time to serve case.

• Tread lightly!!Tread lightly!!

PARTING SHOTSPARTING SHOTS

An ounce of prevention is worth a pound An ounce of prevention is worth a pound of Collateral Attack!of Collateral Attack!

Do not let the tail wag the dog.Do not let the tail wag the dog. None is the most wonderful number.None is the most wonderful number. Prosecutors are people !Prosecutors are people ! Get the Docket entry’s correct and certified Get the Docket entry’s correct and certified

copies. Get copies of the statute convicted copies. Get copies of the statute convicted or and the range of punishment. Get the or and the range of punishment. Get the names right.names right.

representing the criminally charged alien c 2008 daniel c. lemley may be used for educational...

Documents