crimmigration: immigration consequences of criminal convictions

THE PANEL

Satveer Chaudhary, Chaudhary Law Office, PLLC, 5010 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415 Phone: #612-206-3721

www.chaudharylawoffice.com

Richard P. Ohlenberg, Ohlenberg Law Office, P.C., 5775 Wayzata Blvd., Suite 700, Saint Louis Park, MN 55416 Phone: #952-525-2242

www.ohlenbergatlaw.com

Dan Adkins, The Adkins Group, 310 4th Avenue S., Suite 1200, Minneapolis, MN 55415, Phone: 612-355-2787

www.adkinsdefense.com


“Immigration law can be complex, and it is a legal specialty of its own.”

--U.S. Supreme Court, Padilla v. Kentucky


THE MISSION AND GOAL

The Mission: Equip practitioners with enough basic knowledge to identify potential immigration consequences in criminal matters to avoid “ineffective assistance of counsel.”

Practice Goal: To give the Client proper and appropriate legal advice and counsel, and/or the resources necessary to obtain needed information.


POTENTIAL CONSEQUENCES ON ATTORNEY…

--Life can’t go on for the defendant in the U.S. --Motion to Withdraw Guilty Plea? --Evidentiary Hearing? --Professional Responsibility complaint? --Malpractice? --More work for no fee --Prosecutor forced to heap complements on original

attorney


IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS: PRE-PADILLA

1938—Powell: 14th Amendment (Right to Lawyer is Due Process) 1968—Gideon: 14th Amendment (Right to a Free Lawyer) 1984—Strickland: 6th Amendment (Right to an Effective Lawyer) Until 2010: No right to advice regarding potential immigration consequences.


PADILLA CHANGED EVERYTHING Padilla v. Kentucky was decided on March 31, 2010. Since Padilla, the defense attorney (and some others too) has an affirmative duty to properly advise immigration consequences of a plea bargain.


SOME WISE PEOPLE PREDICTED THIS…


PADILLA V. KENTUCKY 130 S. CT. 1473 (2010)

ISSUE: Was Jose Padilla’s 6th amendment right to effective counsel violated when his attorney advised that deportation would not occur if he plead guilty to a drug charge?

or Was the advice given regarding his risk of

deportation merely a “collateral consequence,” thus not protected by the 6th amendment?


PADILLA V. KENTUCKY - CONTINUED FACTS:

Mr. Padilla had resided in the United States for approximately 40 years, and had originally come to the U.S. from Honduras. He served honorably in the United States Armed Forces during the Vietnam War. He never became a U.S. citizen. He was a trucker and faced deportation after he pleaded guilty to transporting a large amount of marijuana in his tractor trailer while in the Commonwealth of Kentucky.

Attorney’s advice: Mr. Padilla “did not have to worry about immigration status since he had been in the country so long.”


ANALYSIS:

--Supreme Court began by reviewing changes to deportation law over the last 100 years, highlighting complexity of immigration law.

--Legal analysis followed Strickland for what is effective assistance of counsel:

2 prongs: § 1) Did the representation fall below an objective standard of

reasonableness and, § 2) But for counsel’s unprofessional errors, would the result of the

proceedings have been different?

PADILLA V. KENTUCKY - CONTINUED


PADILLA V. KENTUCKY -- CONTINUED

HOLDING:

No distinction between direct and collateral consequences.

When deportation consequences are “truly clear,…the duty is to give correct legal advice…is equally clear,” i.e., duty is to tell client that the plea will result in deportation and other immigration consequences.

When law is less straightforward, then a criminal defense attorney need do no more than advise the noncitizen client that the pending criminal charges may “carry a risk of adverse immigration consequences.” See Padilla, page 12.

OUR RESULTING TIP: If any doubt, put client in touch with an immigration attorney. Good idea to have 2-3 names available as a handout.

IDEAL PRACTICE: Have client get an “opinion letter” from an immigration attorney. If money is limited, then get an advisory opinion.


PADILLA V. KENTUCKY – CONTINUED

RATIONALE:

“It is our responsibility under the Constitution to ensure that no criminal defendant is left to the mercies of incompetent counsel. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation.” Padilla at p. 17.

Deportation is a heavy consequence over which someone may even prefer jail.

Effective assistance of immigration consequences may positively alter a plea negotiation for both sides, leading to a more justice result.

OUR RESULTING TIPS:

1.   All immigration consequences are on the table, not just deportation.

2.   Raising immigration issue can “allow the prosecutor and defense attorney to construct a more creative plea bargain, where all interests are satisfied.” -Padilla.


II. KEY TERMS: INADMISSIBLE V. DEPORTABLE

KEY QUESTION: Has your client been lawfully admitted into the United States? Is your client, or will your client be SEEKING lawful admission?

Department of Homeland Security (DHS) will either charge your client as removable under grounds of inadmissibility or deportability.

Persons who have been “admitted” to the U.S. will be removed under grounds of deportability

Those not lawfully admitted (as yet) because they crossed the border illegally or will be seeking a new status will be removed on grounds of inadmissibility.

REASON: Levels of offenses to keep someone out are somewhat less than for those who already here legally.


STATUTORY BASIS FOR INADMISSIBILITY VS. DEPORTABILITY

Inadmissibility applies to persons who have not been lawfully admitted to the U.S., after inspection, and authorization by an immigration officer. §  INA §212(a) controls

Deportability applies to persons who have been lawfully admitted §  INA §237 controls

OUR RESULTING TIP: Aliens don’t have to show they were questioned by an authority or admitted in a particular status.

Legal Permanent Residents returning are not “seeking admission.”


INADMISSIBILITY AND DEPORTABILITY

!!!! One of the first steps in analyzing the immigration consequences of any criminal activity is to determine whether your client is subject to the inadmissibility grounds, the deportability grounds, or both.

!!!! Was individual lawfully admitted into the United States? Admitted at the border or a port of entry? Applying for adjustment of status? These are subject to the grounds of inadmissibility. In addition, individuals who enter the United States without being admitted are deemed to be applicants for admission and are subject to the grounds of inadmissibility rather than the grounds of deportability.

!!!! Once admitted, any non–U.S. citizen may be removed if he or she falls under one of the deportability grounds


REVIEW OF INADMISSIBILITY

Inadmissibility is reviewed at 4 levels:

-  1. US Consulate at visa interview -  Denied or granted a visa

-  2. CBP inspection at port of entry to the U.S. -  Excluded or admitted -  Detained, expedited removal, deferred inspection, parole

-  3. Immigration Court if charged as inadmissible -  Raise defenses to inadmissibility

-  4. USCIS application for adjustment of status or naturalization -  Prove admissibility and rebut claim of inadmissibility


REVIEW OF DEPORTABILITY Events that trigger deportability:

- Criminal activity

- Extensive travel/ Abandonment of LPR status and other airport issues

- Green card renewal application

- Investigation by DHS

Note: Burden is on the DHS to prove person is deportable; presumption that status is lawful (burden is on noncitizen if charged with inadmissibility).


CRIMINAL GROUNDS OF INADMISSIBILITY AND DEPORTABILITY G R O U N D S O F I N A D M I S S I B I L I T Y – T R I G G E R S :

1. Crimes involving Moral Turpitude

2.   Controlled Substances 3.   Reason to believe engaged in

drug trafficking 4.   Engaged in prostitution 5.   Determined to have physical/

mental disorder that poses threat

6.   Determined to be a drug abuser

G R O U N D S O F D E P O R T A B I L I T Y - T R I G G E R S :

1.  Crimes involving Moral Turpitude

2.   Aggravated Felonies (AF)

3.   Controlled Substances

4.   DV, Child Abuse, VPO

5.   Firearms offenses

6.   Document fraud, false claims to citizenship, other crimes


50 SHADES OF ORANGE PAJAMAS 1) CRIME INVOLVING MORAL TURPITUDE (CIMT): NOT WELL DEFINED

-E.g. 9th Circuit Soliciting a Prostitute is a CIMT, other circuits not. -E.g. “Endangering Public Safety” is a CIMT, but does it include Reckless Driving??

2)   GOOD MORAL CHARACTER -E.g. “Habitual Drunkard,” so can some DWI’s affect naturalization?? 3) EVIDENCE OUTSIDE THE CONVICTION: LOOSE LIPS SINK CLIENTS -Matter of Silva-Trevino (only recently decided) - Evidence not on record cannot be considered, but evidence on the RECORD

counts in determining CIMT and other factors in removal/admission proceedings.

4) DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)-DWI renders ineligible

5) I-9 EMPLOYMENT DOCUMENT VIOLATIONS OUR RESULTING TIP: Get details of even “minor” traffic offenses!


50 SHADES OF ORANGE PAJAMAS—CONTINUED

I N A D M I S S I B I L I T Y

Controlled substance—no conviction required

Trafficking in substances—not even admission necessary. Spouses and children also inadmissable!

Assault—Simple assault is CIMT in 5th Circuit!

Indecent exposure—Not CIMT in 9th Circuit!

D E P O R T A B I L I T Y

Aggravated felony defined at INA 101(a)(43)

Always get criminal record, language of precise statute, and statute establishing min and max sentences

Scrupulously compare the criminal statute with the specific aggravated felony

Watch for “divisible statutes”

Research BIA case law and federal decisions

“Categorical approach”-another CLE


KNOW THE CLIENT! Know your client’s goals and what you need to try to achieve

Know your client’s immigration status: §  Example of Canadian citizen with Green Card (2005 case) charged with misdemeanor domestic assault and Gross Misdemeanor DWI.

Client had been in the US for 30 years. §  Client charged with:

§  1. Gross Misdemeanor – Interfere with a 911 call §  2. Gross Misdemeanor – DWI (under the influence with 1 prior) §  3. Gross Misdemeanor - .10 or more with 1 aggravating factor §  4. Misdemeanor – Domestic Assault

§  Know clients goals: Client and his wife wanted to work things out, and definitely wanted Client to remain in the United States. §  Prosecutor initially wanted a plea to the Domestic or the GM - 911 call, but was willing to allow plea to Gross Misdemeanor – DWI

(Count 3). §  Trial: Initially, client wanted to go to trial on the Domestic and the 911 call. However, I explained the risk to him, and that we

needed to work out a plea bargain.

§  Plea Bargain: That Judge’s standard sentence for any Gross Misdemeanor was 365, stay some time, and have him serve some time on Electronic Home Monitoring, or whatever was worked out. However, that would have caused this client some serious problems with Immigration Status.

§  To avoid possible immigration problems, we ended up with a plea bargain where total stayed and executed time was 364. §  364 days jail, stay 304, serve 60 days (split between workhouse/jail and Electronic Home Monitoring (EHM) time. §  You may need to order your client’s criminal record. The only reliable record for immigration is an FBI check. http://

www.fbi.gov/about-us/cjis/criminal-history-summary-checks OUR RESULTING TIP: If you have not already done so, put a question in your Intake Questionnaire asking Client if he: is a U.S.

citizen, or a Green Card Holder, or Other Status (here without papers), etc. As the attorney, you have to know this!


GENERAL RULES

For Immigration purposes, judicial involvement in any way may have a potential immigration consequence. State laws are irrelevant to what the DHS considers to be important for immigration purposes. They have broad latitude!!

Pleas: A dismissal or continuance for dismissal after a period of time is a very good resolution because no plea of guilty is entered. This includes:

§  Continuance for Dismissal §  Dismissals §  Guilty plea to a non-immigration consequence offense OUR RESULTING TIP: Watch for factual admissions in the record that can still result in a Crime Involving Moral Turpitude! (e.g. “I spoke boisterously to my wife in our house”)


GENERAL RULES: OTHER OUTCOMES Stay of Adjudication: What is this? Client not found guilty by the judge, but he does enter a

plea of guilty, which is stayed for a term of months. §  Not good for non-citizen because plea of guilty & factual basis is made. Stay of Imposition: What is this? Sentence starts out as a Felony or Gross Misdemeanor

and drops to a Misdemeanor after probation is complete §  Not good for the non-citizen because plea of guilty & factual basis is made Stay of Execution: What is this? Client enters a plea and is sentenced, but the sentence is

not executed. A typical example might be on a Felony DWI, the Defendant is sentenced to 36 months in prison, but that sentence is stayed and defendant is to serve one year at the Hennepin County workhouse.

Dismiss and Vacate §  Not good for the non-citizen because plea of guilty & factual basis is made

THESE ARE ALL CONVICTIONS FOR IMMIGRATION PURPOSES!!!


GENERAL RULES: OTHER OUTCOMES (CONT.) Other types of Guilty Pleas: §  Alford Plea – What is this?

§  Pursuant to North Carolina v. Alford, 499 U.S. 25, 91 S.CT 160 (1970), a guilty plea is entered without a specific factual basis, where the defendant maintains his or her innocence, but states he has reviewed the police reports and concedes that there is a substantial likelihood that the evidence would support a jury conviction to the charged offense. See also, State v. Goulette, 258 N.W.2d 758, 760-61 (Minn. 1977). §  Generally not good for immigration purposes because person is pleading guilty **Lothenbach, nolo contendre, etc etc.

THESE ARE ALL CONVICTIONS FOR IMMIGRATION PURPOSES!!!


GENERAL RULES: OTHER OUTCOMES Felony sentence reduced to a gross misdemeanor under 609.13. § What is this? If all terms of the felony sentence are gross

misdemeanor terms, then the sentence becomes a gross misdemeanor (or a misdemeanor) by operation of law. This means ALL terms of the sentence, and is IMMEDIATE—at the time of announcement. § For example: period of probation cannot exceed 2 years, fine cannot

exceed $3,000, and jail time (stayed and/or executed) cannot exceed 1 year, but for immigration purposes we would need a total of 364 days or less!!! Also, remember that the nature of the offense is VERY important.

§  Can be a good result, but still have to make sure that the Gross Misdemeanor is not an assault or other listed crime which may lead to deportation.


GENERAL RULES: MISDEMEANOR DOMESTIC ASSAULT CHARGES

Domestic Assault: Misdemeanor, Gross Misdemeanor and Felony Domestic Assault convictions DO lead to deportation.

If a client is charged with domestic assault under Minn. Stat. 609.2242,subd 1(1) or subd. 1(2), try to get it reduced to a:

§  Misdemeanor Disorderly Conduct under Minn. Stat. 609.72,subd. 1(3) which is defined as: “engaging in offensive, obscene, abusive language tending reasonably to arouse alarm, anger or resentment in another person.”

OUR RESULTING TIPS: —Be careful what is stated in the factual basis!! Should not mention any physical assaults. Try “Did such and such to another adult…” Otherwise might as well throw away immigration considerations. ---Instead of amending complaint, dismiss original charge, and tab charge a new counts.


GENERAL RULES: Felony convictions generally result in deportation!

Federal immigration definition for felony is any crime for which the stayed and imposed time is 365 days or more, NOT a year and a day which typically constitutes a felony in most state courts.

OUR RESULTING TIPS: ---Make sure total stayed and executed time is 364 days or less.

--Usually judges will work with you on this. --Be careful, because often the standard sentence on a GM DWI is 365 days, stay 335, serve 30 days as follows. THIS WOULD BE A PROBLEM IF YOU ARE DEALING WITH A NON-CITIZEN!!

Most circuits and the BIA have determined that a misdemeanor offense can be an aggravated felony!


GENERAL RULE: FELONIES

1) Consult with an immigration attorney before you enter a plea!!!

2) Do not say, “you have been in the country for many years, so this plea is not going to cause you any problems with your immigration status!!!!”

3) Seriously consider trying the case to a jury, rather than pleading guilty to a felony. Obviously, the ultimate decision is up to your client, as only he or she can waive their right to have a jury trial.

4) Again, if the plea is going to lead to deportation, and your client wants to remain in the U.S., you have not helped him if s/he is pleading guilty to a felony (or most other convictions, too).


MINNESOTA POST-PADILLA

Campos (2012)—Padilla is not retroactive in Minnesota

Lopez (2011)—No counsel, no written petition, no court advisory (Judge or prosecutor) means plea was not given with knowledge

Rule 15 Advisory (actually pre-Padilla)- “Judge must ensure” (15.01) and “Must be questioned by the court or counsel” (15.02)

OUR TIPS: Circle make client read and initial the immigration paragraph in the plea

petition

Ask Judge to include include immigration language of Rule 15 waiver.


EXPUNGEMENT In Minnesota, where a Court is proceeding under its inherent authority because a

defendant pleaded guilty or was found guilty, then the Court can only seal the records possessed by the Judicial Branch.

§  In Minnesota, expunging records is currently a two-step process, and Courts can only seal the Court records

§  A Pardon must also be sought from the Pardon Board to expunge the Executive

Branch records. §  Practice tip: Expunging the criminal records usually does not help for immigration

purposes, because you have to disclose it anyway.

§  Actually, this can make the process worse for a non-citizen, because the court records might no longer be accessible.


WAIVERS AND OTHER RELIEF

Major topic: INA 212(h) Waivers for Criminal Inadmissibility

-Length of Time (many variable depending on offense) -Extreme Hardship (on the person being removed)

Withholding of Removal -Fear of returning to country (asylum)

Cancellation of Removal -LPR for 5 years and resided continuously for 7 years (discretionary) -Continual presence for 10 years, GMC, extreme hardship to family


RESOURCES

Immigration Law and the Criminal Client (AILA 2013)

Immigration Consequences of Criminal Activity (AILA Fourth Edition 2009)

MSBA Criminal Law Section

MSBA Immigration Law Section

WWW.CRIMMIGRATION.COM

www.uscis.gov

http://www.fbi.gov/about-us/cjis/criminal-history-summary-checks


THANK YOU AND PLEASE CONTACT US

Satveer Chaudhary, Chaudhary Law Office, PLLC, 5010 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415 Phone: #612-206-3721

www.chaudharylawoffice.com

Richard P. Ohlenberg, Ohlenberg Law Office, P.C., 5775 Wayzata Blvd., Suite 700, Saint Louis Park, MN 55416 Phone: #952-525-2242

www.ohlenbergatlaw.com

Dan Adkins, The Adkins Group, 310 4th Avenue S., Suite 1200, Minneapolis, MN 55415, Phone: 612-355-2787

www.adkinsdefense.com


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