Immigration, Crimes, Deportability, Waiversmartincountybar.org/images/pdf/Michael_Vastine.pdf ·...

SUI CHUNG A T T O R N E Y A T L A W

I M M I G R A T I O N L A W & L I T I G A T I O N G R O U P

M I A M I , F L O R I D A

MICHAEL VASTINE P R O F E S S O R O F L A W

D I R E C T O R , I M M I G R A T I O N C L I N I C

S T . T H O M A S U N I V E R S I T Y S C H O O L O F L A W

M I A M I G A R D E N S , F L O R I D A

Immigration, Crimes, Deportability, Waivers

Martin County Bar Association August 21, 2015

Prologue

Although we have observed that “[a] lawyer is often the only person who could thread the labyrinth” of the immigration laws, that observation breaks down when the lawyer does not know the way.

- Salazar-Gonzalez v. Lynch, No. 11-73600 (9th Cir. Aug. 20, 2015)

INITIATION OF PROCEEDINGS

INTRODUCTION TO REMOVAL

DHS DOJ

State Court

HHS

Dept. of Homeland Security Citizenship & Immigration Services (CIS)

Immigration & Customs Enforcement (ICE)

Customs & Border Protection (CBP)

ICE Officers, Trial Attorneys (TAs), Asylum

Office Interviewers, Service Centers

Dept. of Justice Executive Office for Immigration Review

(EOIR)

Board of Immigration Appeals (BIA)

Immigration Judges (IJs)

*Dept. of Health &

Human Services (HHS) Office of Refugee Resettlement (ORR)

Unaccompanied Refugee Minors (URM)

Div. Of Unaccompanied Children’s Services (DUCS)

Shelter Workers, Therapists, Field Coordinators

*State Courts Dependency Court: family court,

juvenile delinquency, probate court

Commencement of Removal Proceedings: Issuance of Notice to Appear (NTA)

Review of NTA- Alleges facts to support charges including alienage, check them for factual accuracy

Check for errors (name, date of entry) and note issue date.

Issuance and service issues. 8 CFR §239.1(a),(b). Only certain officials may issue NTA. Regs list 40 different officers permitted to issue NTA Authority may be delegated by Secretary of Homeland

Security

Criminal convictions for deportable individuals – DHS must provide a certified copy of final disposition, or other court documents, if alleged on the NTA (see INA §§240(c)(3)(B) and (C))

Notice To Appear: Factual Allegations

Notice To Appear: Legal Allegations

Notice To Appear – Removability vs. Inadmissibility

Inadmissibility (arriving aliens and aliens present in the US who have not been admitted or paroled)

Persons who are not lawfully admitted and entered w/o inspection, or an alien seeking entry, is subject to INA §212(a)

Removability

Individuals who are admitted into the US, but are deportable are subject to INA §237

Common Applications for Relief from Removal

Asylum, Withholding of Removal, and Protection Under the Convention Against Torture

Cancellation of Removal

Adjustment of Status to lawful permanent resident

Victims of Crime: VAWA, U and T visas

Prosecutorial Discretion and Administrative Closure

Voluntary Departure

What is a conviction for immigration purposes?

INA § 101(a)(48)(A)

formal judgment of guilt, plea of guilty, plea of nolo contendere

Where the judge orders some form of punishment, penalty or restraint on liberty

Note: includes “withheld adjudication”

Proving Conviction

INA 240(c)(3)(B)

Charging document

Plea agreement

Judgment

Sentence

Other facts to which the defendant assented

NOT: Police Report

Criminal - Immigration Nexus I: “Inadmissibility”

Context (who must establish this standard):

Arriving in U.S. with visa, “inspection” and “admission”

Applying for lawful permanent resident status (“LPR”)

LPR travelling and returning from abroad

Inadmissibility – INA § 212

Primarily “Crimes Involving Moral Turpitude” and Controlled Substance offenses

Convictions

Admissions

Admissions of essential elements of offense

Inadmissibility – INA § 212

INA § 212(a)(2)(A)(i) Crimes Involving Moral Turpitude Mens rea (intent or culpable negligence) Malum in se, inherently base/vile/depraved/violation of duty to society Exceptions:

Juvenile: committed when under 18, and at least 5 years in past Petty: misdemeanor and sentence not exceeding 6 months

INA § 212(a)(2)(A)(ii) Any crime involving a controlled substance

INA § 212(a)(2)(B) Multiple Crimes

Any totaling 5 years sentence to confinement

INA § 212(a)(2)(D) Prostitution

Buying or selling within 10 years

Criminal-Immigration Nexus II “Deportability”

Context:

Documented & Undocumented Immigrants

After arrest/contact with law enforcement

After release from jail/prison

Workplace enforcement

At time of application with DHS/CIS

Background checks, i.e. “biometrics”

Deportability - INA § 237

Burden of Proof - government

INA § 237(a)(2)(A)(i)

Crimes involving moral turpitude Conviction – acts committed within 5 years of admission

Punishable over one year

INA § 237(a)(2)(B) Controlled substances enumerated in 21 USC 802

Any violation, except single MJ offense

Under 30 grams

Personal use

Deportability (cont.) - INA § 237

INA § 237(a)(2)(A)(iii) Aggravated felony

Conviction

INA § 101(a)(43) Defined

(selected excerpts)

(A) Murder, rape, sexual abuse of minor

(B) Illicit trafficking in a controlled substance, including a “drug trafficking crime”

(F) Crime of Violence

Felony

18 USC 16 Use of Force, Risk of Force

(G) Theft or burglary – one year term imposed

(M) Fraud or deceit – loss of $10,000

Deportability (cont.) - INA § 237

INA § 237(a)(2)(C)

Firearms offenses

INA § 237(a)(2)(E)

(i) Domestic violence, stalking, child abuse

(ii) Violations of protective orders related to

domestic violence

PROPER ADVICE AND

AVOIDING AND MINIMIZING IMMIGRATION

CONSEQUENCES

Impact of Crimes on Immigration

Nexus: Crimes and Relief

“‘[P]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence.’ Likewise, we have recognized that "preserving the possibility of' discretionary relief from deportation “would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.”

Hernandez, at 1148, quoting Padilla, at 1483

Proper advice of Immigration Consequences

Padilla v. Kentucky (2010)

Applies Strickland v. Washington (1984), but “in new context”

Ineffectiveness

Prejudice

Two tiers of attorney obligation

If certain/mandatory consequences – must identify

If uncertain – inform “may” impact and encourage consultation with immigration specialist

Padilla/Chaidez/Hernandez

Padilla v. Kentucky, 559 U.S. 356 (2010) (Strickland v. Washington governs ineffective counsel regarding

immigration consequences)

Hernandez v. State, 124 So. 3d 757 (Fla. 2012) Florida plea colloquy insufficient to cure ineffective counsel

(Bermudez v. State and Ginebra v. State reversed) Long-term reliance on Ginebra militates against retroactive

application of “new” Padilla rule because of impact on justice system.

Chaidez v. United States, 133 S. Ct. 1103 (2013) Padilla court had to decide threshold question of whether Strickland

applied, therefore Padilla not dictated by Strickland. Padilla not retroactive old rule pursuant to Teague v. Lane 489 U.S. 288 (1989)

22

Summary: Avoiding “convictions” & minimizing consequences

Avoid Convictions Juvenile dispositions Nolle Prosequi Plea to alternate charges Plea and Pass

__________________ NOT

Withhold of Adjudication Expunge

Consequences Goal: Avoid all Strategically trigger only one

Avoid “deportability” Avoid “inadmissibility”

Waivers:

Avoid time bars Avoid statutory bars

Aggravated felony Drug crime

Discuss and memorialize

client goals and choices

DISCRETIONARY WAIVERS

Relief From Removal

Relief from removal

Adjustment of Status (for undocumented and LPR)

Not all crimes bar adjustment

Test: inadmissibility

Typically CIMT requires a waiver

Most drug crimes cannot be waived

Relief from Removal

INA § 240A(a) Cancellation of Removal

Permanent resident status for 5 years

Present after any lawful admission for 7 years

No aggravated felony

* Stop-time rule

Relief from Removal (cont.)

INA § 212(h) Waiver of Inadmissibility If NOT a resident:

No drug crimes other than one possession MJ

Extreme hardship to qualifying relative

If a resident:*

LPR for 7 years prior to removal proceedings*

No aggravated felonies*

No drug crimes other than one possession MJ

Extreme hardship to qualifying relative

(US citizen/LPR parent, spouse, child) [* if not charged as “inadmissible,” also need an U.S. citizen immediate relative to sponsor ]

[** bars not applicable if acquired LPR status in U.S.]

Relief from Removal (cont.)

INA § 212(c) (repealed)

Lawful permanent resident

7 years lawful permanent domicile

No aggravated felonies with more the 5 year sentence served

(generally) conviction entered prior to April 24, 1996

T A K E W H A T T H E S Y S T E M G I V E S Y O U , B U T C O N S I D E R C H A L L E N G I N G T H E P R O B L E M

I T S E L F

Changing Gears

The Categorical Approach

Descamps v. United States, 133 S.Ct. 2276 (2013)

Conviction rests on least culpable conduct

Compare state elements to the federal or generic offense

Moncrieffe v. Holder, 133 S.Ct. 1678 (2013)

Least culpable conduct applied to federal CSA

Matter of Silva Trevino, 26 I&N 550 (A.G. 2015)

Categorical approach applies to CIMT

Circuit Split on Descamps

Matter of Chairez-Castrejon, 26 I & N Dec. 349 (BIA 2014) Removability for aggravated felony “crime of violence” under INA §

101(a)(43)(F)

Conduct must be volitional. Leocal v. INS (2001)

BUT Utah element of mens rea has multiple levels (1) Intentional (2) Knowing (3) Reckless

Firearm offense under INA § 237(a)(2)(C)

Least culpable conduct option: Antique firearm exception

Matter of Chairez-Castrejon 26 I&N Dec. 478 (BIA 2015) Revisits circuit application of Descamps

Context: “crime of violence”

Chairez II, Feb. 11, 2015

Recognizes split in Circuits in “Means vs. Elements” debate United States v. Trent, 767 F.3d 1046 (10th Cir. 2014)

Jury unanimity not required for “element” status Divisibility occurs when statute employs “alternative statutory

phrases” In that case, proceed to modified categorical approach

Compare: United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014)

If jury need not agree to convict on basis of one alternative as opposed to another there is no basis to find mens rea to injure

Throwing missile at … (targets and/or people) – no firm mens rea to injure people

Compare: United States v. Howard, 742 F.3d 1334 (11th Cir. 2014)

Categorical approach in 11th Circuit

United States v. Howard, 742 F.3d 1334 (11th Cir. 2014) The generic definition/elements of burglary:

an unlawful or unprivileged entry into, or remaining in, a building or other structure,

with intent to commit a crime.

Ala. Code § 13A-7-7(a)

knowingly enters or remains unlawfully in a building with intent to commit a crime therein.

BUT ….

United States v. Howard, 742 F.3d 1334 (11th Cir. Ala. 2014)

Ala. Code § 13A-7-7(a)

Building: Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof.

United States v. Howard, 742 F.3d 1334 (11th Cir. Ala. 2014)

Ala. Code § 13A-7-7(a)

Building: Any structure which may be entered and utilized by persons for business, public use, lodging or

the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof.

Categorical Example: Fla. Theft as CIMT

Matter of Grazley (only permanent taking is CIMT) (Chevron deference given to agency interpretation)

COMPARE Fla. Stat. § 812.014(1)

A person commits a theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent to, either temporarily or permanently: a) Deprive the other person of a right to the property or a benefit from the property. b) Appropriate the property …

Florida Theft – State case

Daniels v. State, 587 So.2d 460 (Fla. 1991). The Florida Legislature added the phrase “either temporarily or permanently” to underscore its intent that Florida’s theft statute, unlike common law larceny, penalizes takings that are temporary as well as those that are permanent The Florida standard jury instruction illustrates the non-divisibility of the mens rea requirement

14.1 THEFT § 812.014, Fla. Stat [He] [She] did so with intent to, either temporarily or permanently,

Two Tests

(1) illicit trafficking in a controlled substance (commercial dealing)

(2) including a drug trafficking crime (as defined in section 924(c) of Title 18) (a federal felony under CSA)

See Lopez v. Gonzalez, 127 S.Ct. 625 (2006)

INA 101(a)(43)(B) – Drug Aggravated Felony

FL Stat. § 893.13

(1) (a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.

Florida Sale or Delivery of Controlled Substance

(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So.2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

Lack of knowledge is an affirmative defense in which the defendant bears the burden of proof and mens rea will be presumed.

Florida Statute 893.101

Cases construing Fla. Stat. 893.13(1) and 893.101

FL Stat. § 893.13 (1) (a) … it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver 893.101 knowledge of the illicit nature of a controlled substance is

not an element

Donawa v. United States AG, 735 F.3d 1275 (11th Cir.

2013) 18 U.S.C. 924(c)(2)For purposes of this subsection, the term “drug

trafficking crime” means any felony punishable under the Controlled Substances Act

Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014) “illicit trafficking in a controlled substance”

Donawa

Drug trafficking crime analysis:

Presumption of mens rea in Florida offense means it categorically fails to constitute a federal analogue

Remanded for BIA to consider whether “illicit trafficking in a controlled substance”

Matter of L-G-H-

1. Are actions proscribed by Florida statute categorically “commercial” in nature?

* No – engage in the modified categorical approach

(Defendant) [sold]

[purchased]

[manufactured]

[delivered]

[possessed with intent to sell]

[possessed with intent to purchase]

[possessed with intent to manufacture]

[possessed with intent to deliver]

The substance was (specific substance alleged).

(Defendant) had knowledge of the presence of the substance.

Florida Standard Jury Instruction § 25.2 Drug Abuse – Sale, Purchase, Manufacture, Delivery, Or Possession With Intent

Logic likely applies to other 893 subsections

Absence of mens rea applies broadly.

Apply least culpable conduct test to the action.

Non-commercial offenses escape aggravated felony treatment

SUI CHUNG I M M I G R A T I O N L A W & L I T I G A T I O N G R O U P

2 9 6 4 A V I A T I O N A V E , T H I R D F L O O R M I A M I , F L O R I D A 3 3 1 3 3

( 3 0 5 ) 4 4 4 - 4 0 2 7 S C H U N G @ L A W G R O U P U S A . C O M

M I C H A E L V A S T I N E P R O F E S S O R O F L A W ; D I R E C T O R , I M M I G R A T I O N C L I N I C

S T . T H O M A S U N I V E R S I T Y S C H O O L O F L A W 1 6 4 0 1 N W 2 7 T H A V E , M I A M I G A R D E N S , F L 3 3 0 5 4

( 3 0 5 ) 6 2 3 - 2 3 4 0 M V A S T I N E @ S T U . E D U

Thank you and good luck.