10/31/2016
PRIMER ON IMMIGRATION CONSEQUENCES OF CRIMES
November 4, 2016
Thomas E. Fulghum
Board Certified Specialist in Immigration
331 West Main Street, Suite 604
Durham, NC 27701
Tel: 919‐688‐0900
Fax: 866‐276‐9570
Email: [email protected]
Website: www.tomfulghumlaw.com
Goals
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



Scare: defense counsel must advise
Inform: what crimes are problematic, how ICE gets your client.
Arm: how to do research, where to go for help
Answer questions
Failure to advise = Ineffective Assistance of Counsel
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
Padilla v Kentucky, 559 U.S. 356 (2010): Defense counsel is constitutionally obligated to provide affirmative, competent advice about immigration consequences to noncitizen defendants

Failure to provide advice may be ineffective assistance of counsel
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State v. Nkiam 779 S.E.2d 863 (N.C. App. 2015) 4

“We hold that Padilla mandates that when the consequence of deportation is truly clear, it is not sufficient for the attorney to advise the client only that there is a risk of deportation.”

Aggravated felony made defendant deportable. What is your client’s particular status?
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• Lawful permanent resident status
• Refugee and asylee status
• Individuals with temporary status – nonimmigrants, TPS, DACA
• Individuals with no status – undocumented, visa overstays
 All non‐USC’s can be deported – easily ‐‐ for the wrong criminal conviction.
Is there are conviction for immigration purposes?
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Conviction defined
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 A formal judgment of guilt or where no formal finding of guilt:
 If defendant pleads guilty, no contest, 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.
Strategies
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 To avoid a conviction for immigration purposes
1) avoid a guilty plea, nolo plea or admission of sufficient facts or
2)avoid a restraint on liberty
What is “Restraint on Liberty”?
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 Traditionally, a restraint on liberty includes a condition imposed on the defendant that is “not shared by the public generally.” Jones v. Cunningham, 371 U.S. 236 (1963).
 This would include a sentence to incarceration, probation, a fine, community service, required classes (e.g., anger management), court costs.
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What this means in North Carolina
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
PJCs can be convictions

Deferred prosecutions can be convictions. PJCs
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 If costs imposed, counts as conviction because
 Court costs = punishment Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008)
 If you can get PJC with no costs, might not count as conviction. Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010)
(no case law in BIA or 4th Cir.) 12
Deferred prosecutions are often convictions
 Almost always require some restriction on liberty
 Usually require admission
 Usually signed by judge
Strategy: try to get non‐admission deferral, or don't have judge sign (“back‐of‐the‐shuck” deferral)
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AOC‐CR‐610, “admission of responsibility” should be merely evidentiary stipulation but will be treated by ICE as admission.  See if you can get DA to agree not to check box.
Drug treatment court
Probably a conviction if D is required to: 1)
admit facts in court or plead guilty, and
2)
sentenced by court to program or other conditions
Juvenile Dispositions
 A juvenile court disposition is not a conviction for immigration purposes. Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000).
 A conviction of a minor in adult court is a conviction for purposes of removal.
 However, for DACA USCIS will consider juvenile convictions as discretionary factor. 5
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Expungements are •
Do not work for immigration—still a conviction Matter of Roldan‐Santoyo, 22 I&N Dec. 512 (BIA 1999).
 Often just make it impossible to get records required to submit to USCIS.
 If Client wants expungement for job, recommend getting several certified copies of pleading and disposition prior to entry of expungement
Vacated convictions work . . . Except when reason is to avoid immigration consequences
 The court order should reflect that judgment was vacated for cause (statutory or constitutional violation, or other illegality) and not merely to avoid immigration consequences.
Matter of Pickering, 23 I&N Dec. 621 (BIA 2003)
 Supreme Court has said failure to advise of immigration consequences violates right to counsel under 6th Amendment.
Padilla v. Kentucky, 130 S.Ct. 1473 (2010)
Sources of Law

Immigration and Nationality Act (INA), 8 USC § 1101, et seq

Federal regulations, title 8 of CFR

Administrative Agency decisions, Board of Immigration Appeals (BIA), http://www.justice.gov/eoir/vll/libindex.html 6
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Overview of Immigration Consequences

Aggravated Felonies, 8 USC 1101(a)(43)

Deportation Grounds, 8 USC 1227(a)  “The death knell”
 “Lose lawful status you already have”

Inadmissibility Grounds, 8 USC 1182(a) 
Relief Requirements –

“Can’t get new lawful status or admission”  Bars to eligibility for asylum, cancellation, etc., inadmissibility or other bars
Grounds of Inadmissibility & Deportability
Inadmissibility (8 USC 1182)
Crimes involving moral turpitude
Deportability (8 USC 1227)
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
Criminal Grounds of Deportability

Aggravated felony conviction

Drug conviction


Crimes involving Moral Turpitude conviction
o 1 within 5 years of admission + potential sentence of 1 year or more
o 2 any time after admission “not arising out of a single scheme”
Firearm or destructive device conviction

Crime of domestic violence or stalking conviction

Child abuse, neglect, or abandonment conviction

Violation of order of protection ‐ civil or criminal finding
o
Except simple possession 30 grams marijuana
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Criminal Grounds of Inadmissibility

Controlled substance offense ‐ conviction or admission

“Reason to believe” drug trafficker

Crime involving moral turpitude (CIMT) ‐ conviction or admission
‐ Petty offense exception: for 1 CIMT if max possible sentence one year or less imprisonment + actual 6 months or less

Prostitution or commercialized vice

2 or more offenses + aggregate sentence of 5+ years
Aggravated Felonies ‐ 8 USC 1101(a)(43) 
Should be avoided 
May includes misdemeanors

Most severe immigration consequences •
Bars most forms relief from removal (asylum, cancellation of removal)
•
Permanently barred from entering the U.S. legally •
Barred from voluntary departure
•
Enhanced prison sentence for illegal reentry
Thankfully, there is a list of these: 8 USC 1101(a)(43)
Covered offenses, 8 USC 1101(a)(43)
Conviction‐
based
• Includes murder, rape, sexual abuse of a minor, & drug trafficking • Sentence does not matter
Sentence‐
Based
• Specific offenses for 1 year sentence is imposed, even if suspended • includes theft, burglary, forgery, crimes of violence and obstruction of justice
Circumstance‐
specific
• Conviction of specified offense + other factor
• e.g. fraud and deceit offense + $10k loss to victim
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Aggravated felony triggered by a one‐
year sentence
The sentence includes any period of incarceration ordered, regardless of suspension
•
•
Includes suspended sentence
•
Even if D is released prior to serving the maximum term
Good news: NC misdemeanors will generally not trigger 1 year AF because max punishment is less
Immigration
Enforcement,
Bond, and
Removal
How clients get nailed by ICE

Processed at jail

Probation meeting

Serve sentence at DOC

Entering U.S. after travel abroad

Renewing immigration benefits

Applying for citizenship

Raids, traffic stops, random bad luck
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Priority Enforcement Program



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When arrested by police and printed, prints also sent to ICE.
ICE determines whether priority for removal under 11/20/14 memo
If so, ICE will seek transfer prior to release
ICE can ask for jail to voluntarily hold alien for 48 hours
Where Did My Client Go?

Before client is transferred, try to get 9digit “A” number
– If client has never had any contact with
immigration, may not have one
– Will be on most immigration documents
– Should be included on the ICE detainer form
filed with the prison and provided to your client
How to find Jesús

Use the new online detainee locator at
https://locator.ice.gov/odls/homePage.do
– Need A# and country of birth OR
– Name, country of birth, and DOB

If cannot find him there, you can try to
email [email protected].
However, without a G-28 (attorney rep. form) may not
get much info.
Once in Immig. Court, call 800-898-7180
automated system to find court date, place,
and removal info
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How Shall I Deport Thee?
Let Me Count the Ways…
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Immigration court (“§ 240 proceedings”)
Administrative Removal (Non-LPR with
aggravated felony)
Expedited Removal (At border/airport or within
100 miles/14 days)
Stipulated Removal (Written stipulation to own
removal)
Reinstatement of Removal (Use old removal
order)
Executing Old Order of Removal (client never
left)
Voluntary Departure (by ICE or IJ)
ICE HOLDS: HOW THEY START



ICE files detainer (I-247) asking jail to hold alien
to allow ICE to take into custody
Technically a request, not order
8 CFR § 287.7
Duration: 48 hours excluding weekends and
holidays
Based on belief that alien is deportable
 prior
removal
 entered
without inspection
 overstayed
 past
visa
crimes
 threat
to public safety
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HOW TO END ICE HOLD


If otherwise deportable, when client no longer
subject to state custody, ICE will decide whether
to pick up
When 48 hours expires, get release by:

calling ICE 919-688-8807
(usually quickly picks up or tells jail to release)

talking to Sheriff (or his Attorney)

filing habeas petition
IMMIGRATION BONDS
 No
right to immigration bond
 If
client pays criminal bond, may be taken
to ICE custody
 ICE
can give bond, or hold without bond
 Client
can file bond motion in Immigration
Court--unless subject to mandatory
detention
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ICE CUSTODY IN N.C.
No long-term ICE detention facilities in NC
Client quickly moved to York, SC, then Georgia
(ultimately Stewart Detention Facility)
 Upon leaving Carolinas, Charlotte Court (thinks
it) loses jurisdiction
 Once bond set, must pay at ICE ERO office
(Charlotte) or use bondsman
 One or more days delay before can pay bond,
be released
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WHETHER TO PAY STATE BOND

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
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If client taken into ICE custody while criminal case
still pending, cannot get client back
In some counties (e.g. Durham) forfeit state bond
if FTA even when can prove was in ICE custody
when missed state court date
If client stays in criminal custody, could use
credits toward time served
Pending criminal charges not basis to deport
but affect discretion to grant bond for otherwise
deportable aliens (e.g. policy of no bond for
overstay with pending DV)
IS CLIENT ELIGIBLE FOR
IMMIGRATION BOND?
MANDATORY DETENTION 8 USC §1226(c)
Cannot get immigration bond if convicted of:

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


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Crime making client inadmissible
Drug offense (including paraphernalia)
Firearm offense
Aggravated felony
Two CIMTs
One CIMT w/in 5 years of admission (10 years
for LPRs) with actual sentence imposed of a
year or more
Law says ICE can pick up “when released” but
BIA says means if ever in custody for crime
Some successful Fed. Ct. challenges
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IS CLIENT ELIGIBLE FOR
IMMIGRATION BOND?
If not subject to mandatory detention, Client can seek
bond redetermination before IJ
Factors are:
Dangerousness to community
Flight Risk
Matter of Urena, 25 I&N Dec. 140 (BIA 2009).
But in practice, some IJ's also require some form of
relief
Immigration Court
If released from custody, a month or two
after release, get notice of hearing
 First hearing “Master Calendar”


respond to allegations
tell IJ what relief seeking
Trial several months to a year or more
later



on allegations, if contested

on eligibility for relief
NOTICE TO APPEAR
MASTER
CALENDAR
HEARING
IMMIGRATION
JUDGE
DECISION
•RELIEF
•REMOVAL
ORDER
•TERMINATION
•VOLUNTARY
DEPARTURE
BOND HEARING
(if eligible)
INDIVIDUAL
MERITS
HEARING
BOARD OF
IMMIGRATION
APPEALS
FEDERAL
COURT
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Resources
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
Ask judge for money for expert

Immigration Consequences Manual (will be updated over the next year)

Resources at http://defendingimmigrants.org/ 
USCIS website for DACA, TPS ineligibility, at www.uscis.gov

Grounds of deportability 8 USC §1227

Grounds of inadmissibility 8 USC § 1182(a)

Aggravated felony definition 8 USC § 1101(a)(43)
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