post conviction trainings

Immigration Consequences of Criminal Conduct

for the Appellate Attorney

CPCS Immigration Impact Unit

2012

Topics of Discussion

Types of Immigration Status

Immigration Terms of Art

Immigration Consequences of Criminal Offenses

Post Conviction Relief

Understanding the Immigration Consequences of Criminal Conduct Requires Knowing:

Immigration status

Pending charges

Prior criminal history


U.S. Citizen

Legal Permanent Resident

Lawful Non-Immigrants

Refugees & Asylees

Temporary Protected Status

Undocumented and Out of Status

“Conviction”

A formal judgment of guilt or

Where adjudication withheld: If defendant pleads guilty, nolo contendere or has

admitted sufficient facts to warrant a finding of guilt, AND

The judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

8 U.S.C. § 1101(a)(48)

MA Dispositions Under Federal Immigration Law

Massachusetts Disposition

Federal Immigration Law

CWOF Conviction

Pre-trial Probation (no admission)

Not a conviction

Guilty Filed Might not be a conviction

Juvenile Dispositions

A finding of delinquency is not a conviction for immigration purposes

A youthful offender adjudication may be a conviction for immigration purposes

Some grounds of inadmiss/deport don’t require a conviction, so juvenile dispositions can still have imm. conseq.

Sentence

Under immigration law, a “sentence” includes any term of

incarceration whether committed or suspended.

EX: A 2 year sentence of imprisonment, 6 months to serve, the balance suspended for 1 year = a 2 year sentence of

imprisonment.

Crime Involving Moral Turpitude

Intent Reprehensible Conduct CIMT

Matter of Silva-Trevino, 24 I&N Dec. 687 (2008)

Examples of Crimes Involving Moral Turpitude

• murder, manslaughter, assault to rob or kill, ADW, ABDW, most agg. assaults

• rape, indecent assault and battery, prostitution, failure to reg.

• arson, robbery, malicious destruction, larceny, shoplifting, any type of fraud or theft (with intent to permanently deprive)

NOT Crimes of

Moral Turpitude

Disorderly Conduct

Use without

Authority

Simple OUI

Disturbing the Peace

Assault & Battery

Types of Consequences

Removal of person who had been lawfully admitted to U.S.

Removal of person seeking adjustment to permanent resident

Denial of admission Bar to naturalization Loss of visa or temporary legal status Denial of asylum

Inadmissibility v. Deportability

If client has been lawfully admitted to the U.S. (LPR, Visa, etc.), may be charged with grounds of deportability (e.g., loss of status) pursuant to 8 USC 1227.

If client is seeking entry or lawful admission to the U.S., may be charged with grounds of inadmissibility (bar to obtaining an immigration benefit) pursuant to 8 USC 1182.

Primary Crime-Related Provisions of Immigration Law

8 USC 1182(a)(2) – grounds of inadmissibility

8 USC 1227(a)(2) – grounds of deportability

8 USC 1101(a)(43) – aggravated felony statute

Grounds of Inadmissibility and Deportability

Inadmissibility (8 USC 1182) Deportability (8 USC 1227)

Crimes involving moral turpitude Crimes involving moral turpitude

Controlled Substance Offense Controlled Substance Offense

Prostitution related offenses

Conviction of multiple offenses (5 years or more)

Firearms offenses

Domestic Violence offenses

Aggravated Felonies

Inadmissible Offenses:


A person is inadmissible based on 1 crime involving moral turpitude

Petty offense exception: One crime committed when under 18 years old and at

least 5 years before admissionor Maximum possible penalty is one year or less and

sentence is 6 months or less


Controlled Substances

• Violation of any law RELATING TO controlled substances

• Any alien who the AG has reason to believe is a drug trafficker.


Prostitution

• Engaging in prostitution

• Procuring a prostitute

• Receiving the profits from prostitution (pimps)


Multiple Offenses

Multiple offenses - 2 or more convictions for which aggregate sentence is more than 5 years

Deportable Offenses:


One CIMT within 5 years of admission, where a sentence of at least one year may be imposed

OR

Two CIMTs at any time, not arising out of a single scheme of criminal misconduct


Controlled Substance Offenses

Conviction for ANY drug offense makes a person deportable

- Except 1 offense of 30 grams or less of marijuana

- Includes conspiracy or attempt


Firearm Offenses

Includes a conviction for any crime of buying, selling, using, owning, possessing or carrying any firearm or destructive device

Includes conspiracy and attempt

May also include crimes for which possession or use of a firearm is an element of the offense


Domestic Violence

Includes conviction for: Crime of domestic violence Stalking Child abuse Child neglect Child abandonmentorViolation of criminal or civil protective orders

Aggravated Felony

To be avoided at all costs! 8 U.S.C.1101(a)(43) – federal statutory

definition Minor offense can be AF Misdemeanor can be AF

Aggravated Felony

Consequences

• Nearly automatic deportation • Permanent exile from the U.S. • Bar to almost every form of

relief from deportation• Mandatory detention.

Aggravated Felony cont’d

Conviction-based AFs

Conviction of specified offense

Sentence-based AFs

Conviction of specified offense

+ sentence of imprisonment of

one year or more

Aggravated Felony cont’d

Common Conviction-based

• Murder• Rape• Sexual abuse of a

minor• Drug Trafficking (any

offense other than simple possession)

Common Sentence-based

• Crimes of violence• Theft offenses• Burglary; B&E in a building.•Witness Intimidation

Immigration Related Post Conviction Relief

PCR

Motions to Revise and

Revoke

(Rule 29)

Motions for New Trial

(Rule 30)

Revise and Revoke

Rule 29 motion is used when the sentence, not the conviction, is what has caused immigration problems.

Ex: A&B with a 1 year sentence is AF

A&B with 364 day or less sentence is not AF

Revise and Revoke

A motion to revise and revoke shall be granted if “it appears justice has not been done.”

Must be based on facts that existed at time of original sentencing

Revise and Revoke

Motion and affidavit must be filed within 60 days of sentence

or loss of appeal

Important R&R case law

Commonwealth v. Stubbs,

15 Mass. App. Ct. 955 (1983)

Commonwealth v. Dejesus,

440 Mass 147 (2003)

Matter of Song, 23 I&N Dec. 173 (BIA

2001)

Padilla Motions

Rule 30 motion for new trial

Used when the conviction itself causes immigration consequences

EX: conviction for distribution of a controlled substance

Where do Padilla motions come from?

Padilla v. Kentucky, 130 S. Ct. 1473 (2010)

6th A duty to advise client of immigration consequences prior to pleading guilty

Failure to advise is ineffective assistance of counsel!

Padilla motion requirements

Padilla applied the two-prong test for IAC established in Strickland v. Washington, 466 US 668 (1984) and adopted in Commonwealth v. Saferian, 366 Mass. 89, (1974):

Deficient performance (counsel’s representation “fell below an objective standard of reasonableness.”)

Prejudice (“but for counsel’s unprofessional errors, the result of the proceeding would have been different.”)

Deficient Performance

What is deficient performance? Affirmative mis-advice Failure to give specific advice (no general warnings)

How to show deficient performance? Affidavits showing

Counsel’s failure to inquire about immigration statusCounsel’s mis-advice That counsel gave only very general warnings (i.e.

read the green sheet)

Affidavit of Trial Counsel

Very general

Very specific

None at all

Prejudice

D must show that but for counsel’s deficient performance, the proceedings would have

been different.

How do you show prejudice?

D must aver that he would have rejected the plea and gone to trial.

and D must show it would have been rational to reject the

plea bargain due to:- Substantial ground of defense that would have been

pursued at trial;- Reasonable probability that a different plea bargain

could have been negotiated; or- “Special circumstances” that show D placed particular

emphasis on immigration consequences.Commonwealth v. Clarke, 460 Mass. 30 (2011)

What you must know to screen for a Padilla motion

Client’s status at time of plea Client’s prior record Charges to which client pleaded guilty Whether client received immigration advice. If

so, what was the advice?

Other issues raised by Padilla

Retroactivity?

Do the alien warnings cure?

What if the client went to trial?

Alien Warnings - 278 §29D motion

Were the warnings given?

If no warnings, may the defendant suffer the

consequences about which he was not warned?

Was the warning given as required by 278/29D?

“Presumption of regularity“ does not apply because G.L. c. 278, §29D explicitly states that absent a record that judicial warnings were given, the defendant is presumed not to have received them.

Commonwealth v. Grannum, 457 Mass. 128 (2010)

Reconstructing the record

Pre-2004

•Allowed to reconstruct the record

Post-2004

•Not allowed to reconstruct the record

“May have or has had consequences…”

Defendant must prove that he faces more than a hypothetical risk that one or more of the enumerated consequences will occur.

- Commonwealth v. Berthold, 441 Mass. 183 (2004) - Commonwealth v. Grannum, 457 Mass. 128 (2010)

Suffering the consequences…

Deportation

• Statutory cites NOT enough• ICE detainer• Notice to Appear• Order of Removal• “Express written policies” of

the federal government

Suffering the consequences…

Exclusion

Statutory citations may be enough

Intent to travel

abroad

Intent to apply for

green card

Denial of Natz

Statutory citations may be enough

Intent to apply for

natz

Gautreaux

Failure to contact consulate could be grounds for a rule 30 motion.

Problem will be showing prejudice Don’t know of any cases arguing this yet

Other Issues

Habeing a defendant into court from immigration custody for motion hearing

Timing of a motion – deportation while pending

Client’s “job” in immigration court

Resources

CPCS Immigration Impact Unit21 McGrath HighwaySomerville, MA 02143TEL: 617-623-0591FAX: [email protected]

www.publiccounsel.net

post conviction trainings

Documents