Upload
others
View
0
Download
0
Embed Size (px)
Citation preview
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.