Transcript to Immigration Power Point

Immigration Consequences of
Adult & Juvenile Criminal
Convictions
Presentation to
Virginia Beach Bar Association
JDR DC Subcommittee
December 4, 2015
By
Hugo R. Valverde
Valverde & Rowell, P.C.
Who is a U.S. Citizen?

Born on U.S. soil or U.S. territories
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14th Amendment - All persons born or
naturalized in the United States, and
subject to the jurisdiction thereof, are
citizens of the United States and of the
State wherein they reside.
U.S. v. Wong Kim Ark, 169 U.S. 649
(1898)
Naturalized (formerly had a green
card, took the oath of citizenship)
Who is a U.S. Citizen?



Born to U.S. citizen parent(s)
abroad or sometimes
grandparent(s)
Has green card and while under the
age of 18, parent(s) became U.S.
citizen
Generally, once a U.S. citizen
always a U.S. citizen and cannot be
deported.
Inadmissibility v. Removability



A criminal conviction makes a non-citizen
deportable or ineligible for an immigration
benefit b/c he is “inadmissible” or “removable.”
A non-citizen is “inadmissible” when he/she has
not been formally inspected at a port of entry or
seeks a visa or lawful permanent residence. INA
§ 212 applies.
A non-citizen is “removable” if he/she has been
inspected and entered under a legal visa. INA §
237 applies.
“Conviction”


A formal judgment of guilt by a court OR
If adjudication of guilt has been withheld (i.e. no
judgment of conviction entered) there is
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Guilty plea or plea of nolo contendere;
Admission of sufficient facts; OR
Judge or jury has found guilt; AND
Judge has ordered some kind of punishment, penalty, or
restraint on liberty
INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A)
“some kind of punishment, penalty, or restraint” can be
probation
Convictions on appeal by right are not “convictions”
because not final.
 Example conviction on appeal from General District
Court to Circuit Court not a “conviction.”
Tips for Defense Attorneys

Deferred adjudications


Avoid pleading guilty or finding of guilty in the
warrant/record. Otherwise will still be
considered a “conviction” under immigration
law.
Still may not be enough because First
Offender provisions in Va. Code state:
“. . . if the facts found by the court would justify a
finding of guilt . . .”
 Examples: Va. Code § 18.2-251 (marijuana
possession) and § 18.2-57.2 (domestic assault)

“Sentence”

Includes the period of incarceration or
confinement ordered by a court regardless
of any suspension in whole or in part. INA
§ 101(a)(48)(B); 8 U.S.C. §
1101(a)(48)(B).
Juvenile Convictions


Convictions of minors in juvenile and domestic
relations court are not convictions for
immigration purposes. Matter of Devison, 22
I&N Dec. 1622 (BIA 2000).
However, if juvenile transferred to adult court
then it is a conviction.
Note: Sometimes Adverse
Immigration Consequences Do
Not Require Convictions

Some grounds of
inadmissibility/removability do not require
a “conviction” to trigger adverse
immigration consequences:
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Drug trafficking (i.e. drug dealing)
Drug abuser or drug addict
Prostitution
Violations of protective orders
False claim to U.S. Citizenship
Also…
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Many immigration benefits are
discretionary
The government can still use its discretion
to deny immigration benefits even though
juvenile convictions may not be
“convictions.”
Crimmigration Consequences
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Deportation
Mandatory Detention by Immigration with
no bond
Ineligibility for U.S. citizenship
Ineligibility for a “green card” and
immigrant and non-immigrant visas
Eligibility for relief from deportation or
waivers
Possible lifetime separation from family
and friends
Mandatory Immigration
Detention Under INA § 236(c)

Immigration Judge cannot grant bond if
defendant has been convicted of certain
crimes
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Controlled substance violations
Crimes involving moral turpitude
Aggravated felonies
Firearms offenses
Drug Offenses

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Almost any drug offense makes a person
inadmissible or removable, regardless of
sentence.
For inadmissibility (someone applying for a visa
abroad or applying for permanent residence in
the U.S.), a conviction is not necessary

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Can be an admission to an officer that he has
committed an act that is punishable under any law
relating to a controlled substance. INA §
212(a)(2)(A)(i)(II).
Officer can have “reason to believe” that non-citizen
has been involved in drug trafficking. INA §
212(a)(2)(C)(i).
Drug Offenses
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For removability, any non-citizen who after
admission is convicted of violating (or conspiracy
or attempt to violate) any law relating to a
“controlled substance.” INA § 237(a)(2)(B)(i).
Even possession of drug paraphernalia could be
a crime relating to a controlled substance if
relates to a substance listed in the federal
schedule. See Mellouli v. Lynch, ___ U.S. ____,
No. 13-1034 (June 1, 2015); Matter of PachecoVentura (unpublished BIA decision 2003).
Drug Offenses

Not removable for a drug conviction if only a single
offense for marijuana possession of 30 grams or less.
INA § 237(a)(2)(B)(i).
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
Tip: Try to get the amount in the record if less than 30 grams.
Not inadmissible or removable if conviction does not
relate to a federally “controlled substance” as defined in
18 U.S.C. § 102. Mellouli v. Lynch, ___ U.S. ____, No.
13-1034 (June 1, 2015); Matter of Paulus, 11 I&N Dec.
211 (BIA 1965).
Drug Offenses
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Consequences:
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Denied entry from abroad
Denied changing to another type of visa
Never become a lawful permanent resident, unless for
possession of 30g or less of marijuana
Denied U.S. Citizenship
Placed in removal proceedings and subject to
mandatory detention
NOTE: Some drug offenses are “aggravated
felonies”
Aggravated Felonies
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Don’t let the name fool you – a misdemeanor
under state law can still be an aggravated
felony.
Not all aggravated felonies have one year
sentence triggers
Can be “kiss of death” for a non-citizen
Only applies to removability – non-citizens who
have been inspected and entered under a legal
visa
INA § 101(a)(43) defines 19 types of aggravated
felonies
Aggravated Felonies

Rape, murder, and sexual abuse of a minor

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Sexual abuse of a minor does not require contact.
Indecent exposure enough. Matter of RodriguezRodriguez, 22 I&N Dec. 991 (BIA 1999).
Solicitation of minor. Gattem v. Gonzalez, 412 F.3d
758 (7th Cir. 2005) (Illinois conviction of
misdemeanor solicitation to engage in a sexual act is
sexual abuse of a minor where criminal complaint
(and no other document) showed victim under the
age of 18)
Solicitation of undercover adult officer posing as child
on internet. Hernandez-Alvarez v. Gonzales, 432 F.3d
763 (7th Cir. 2005)
Aggravated Felonies
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Illicit trafficking in a controlled substance,
including a “drug trafficking crime” defined in 18
USC § 924(c)
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Any drug conviction where the statute has an element
of sale or distribution, regardless of sentence could be
an aggravated felony.
Any federal conviction for possession that is a felony
BUT state felony possession that would not be a
felony under federal law NOT an ag felon, Lopez v.
Gonzalez, 125 S. Ct. 625 (2006) unless for
flunitrazepam (date rape) or >5g of crack.
A second possession conviction may be an ag felony
if it would be a felony under federal statute as repeat
offender
PWID marijuana not ag felony if statute covers
sharing of a small amount of marijuana with no
renumeration, e.g. Va. Code § 18.2-248.1(a).
Moncreiffe v. Holder, 133 S.Ct. 1678 (2013).
Aggravated Felonies
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Crime of violence and sentenced to at least one year
imprisonment
Defined in 18 USC § 16
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(a) Element of the use, attempted use, or threatened use of
force against person or property or
(b) A felony that involved a substantial risk that force will be
used in commission of offense
Must involve active force and a higher degree of intent
than mere negligent or accidental conduct. Leocal v.
Ashcroft, 543 U.S. 1 (2004).
Look at statute of conviction for required mental state
Aggravated Felonies
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Not Crimes of Violence
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Simple involuntary manslaughter under Va. Code §
18.2-36. Bejerano-Urrutia v. Gonzalez, 413 F.3d 444
(4th Cir. 2005).
DUI and DUI causing bodily injury. Leocal v. Ashcroft.
Assault recklessly causing serious physical injury by
means of deadly weapon or dangerous instrument.
Garcia v. Gonzalez, (4th Cir. 2006).
Va. domestic violence not categorically a COV. Matter
of Velasquez, 25 I&N Dec., 278 (2010)
Crimes of Violence
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Misdemeanor sexual battery under § 18.2-67.4.
Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000).
Aggravated Felonies
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Theft or burglary offense for which term of imprisonment
at least one year
 Fourth Circuit said Virginia grand larceny conviction is
not an aggravated felony theft offense. Omargharib v
Holder, 775 F.3d 192 (2014). Note: It can still be a
CIMT.
Child pornography
Owning/managing prostitution business/human
trafficking
Obstruction of justice/perjury
Attempt or conspiracy to commit any of the enumerated
aggravated felonies
AND SEVERAL MORE . . .
Aggravated Felonies
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Consequences
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Mandatory detention
Certain deportation
Not eligible for any relief from deportation,
except deferral of removal under Convention
Against Torture
Permanent bar from ever being able to return,
unless get a special waiver.
Permanent bar to U.S. citizenship
Crimes Involving Moral Turpitude
(“CIMTs”)

For inadmissibility (person applying for visa
outside the U.S. or permanent residence in the
U.S.), one CIMT or an attempt or conspiracy to
commit a CIMT
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Exceptions:
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Crime committed under 18 and 5 years (from release from
confinement) prior to date of application or admission
Max penalty of crime one year or less and actually sentenced
to 6 months or less (“petty offense exception”)
For removability,
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One CIMT within 5 years of admission and sentence
one year or more may be imposed
Two CIMTs not arising out of a single scheme of
criminal misconduct regardless of sentence or
imprisonment
CIMTs
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Defined by case law not statute
“A nebulous concept, which refers generally to
conduct that shocks the public conscience as
being inherently base, vile, or depraved,
contrary to the rules of morality . . . .” Matter of
Danesh, 19 I&N Dec. 669 (BIA 1988).
Does not matter whether a felony or
misdemeanor
Start by looking at the elements required for
conviction
CIMTs
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Test: Does the statute contain an element
reflecting “a vicious motive or corrupt
mind?” Matter of Franklin, 20 I&N Dec.
867 (BIA 1994).
CIMTs
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Simple assault and battery usually not CIMT. Matter of
Fualauu, 21 I&N Dec. 475 (BIA 1996).
However, assault with aggravating circumstances is can
be a CIMT, e.g. police officer, deadly weapon, injury to
family member.
Possession of firearm not CIMT. Matter of Granados, 16
I&N Dec. 726 (BIA 1979).
However, use of a firearm under Va. Code 18.2-53.1 is a
CIMT. United States v. Brown, 127 F.Supp.2d 392
(WDNY 2001).
Theft offenses are CIMTs – intent to deprive owner
Maybe Va. 46.2-894 -failure to stop after accident
Also Not CIMTs
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Va. 18.2-102 (joyriding)
Va. 18.2-89 (burglary, where record
reflects that B&E was not done with intent
to commit CIMT – ie. B&E with intent to
trespass)
DUI and motor vehicle offenses
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Va. 18.2-266 (DUI)
Va. 46.2-862 (reckless driving)
CIMTs
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False Pretenses/Fraud is CIMT– intent to
defraud
Burglary and robbery are CIMTS – intent to
commit a felony or steal. United States v.
Brown, 127 F.Supp.2d 392 (WDNY 2001).
False police report is a CIMT – intent to mislead
Sex offenses are CIMTs
Controlled substance offenses with an intent or
knowledge of manufacture or distribution a
CIMT. Matter of Khourn, 21 I&N Dec. 1041 (BIA
1997).
Consequences of CIMTs
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Denied a visa and lawful permanent residence,
unless “petty offense” exception or waiver is
available
Denied U.S. Citizenship if within 5 years of
application and may be placed in deportation
proceedings
Mandatory detention upon arriving/reentry into
the U.S. and placed in deportation proceedings
Still eligible for some forms of relief from
deportation
Domestic Violence

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Removable for domestic violence, stalking, child
abuse, child neglect, or child abandonment
conviction. INA § 237(a)(2)(E)(i).
“Crime of domestic violence” is any crime of
violence defined in 18 U.S.C. § 16 against a
person by a current or former spouse, individual
w/ a child in common, cohabiting or cohabited
with person as a spouse, individual similarly
situated as a spouse under the state law, or any
individual against a person protected by federal,
state, or local domestic violence laws. Id.
Domestic Violence
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Removable for violation of protective order
that protects against credible threats of
violence, repeated harassment, or bodily
injury. § 237(a)(2)(E)(ii).
Domestic violence conviction is not
categorically a CIMT. Matter of Sejas, 24
I&N Dec. 246 (BIA 2007).
Not categorically a crime of domestic
violence or crime of violence ag felony if
sentenced to one year or more. Matter of
Velasquez, 25 I&N Dec. (BIA 2010)
Consequences of Domestic Violence
Conviction
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Not a ground of inadmissibility (person applying
for a visa outside U.S. or permanent residence in
U.S.), unless a CIMT.
A ground of removability and may be placed in
removal proceedings
Denial of U.S. Citizenship and may be placed in
removal proceedings
Not subject to mandatory detention, unless a
CIMT or an agg felon
Still eligible for waivers of inadmissibility or
removal, unless an agg felon
Firearms Offenses
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Removable for conviction of purchasing, selling,
offering for sale, exchanging, using, owning,
possessing, or carrying (or attempt or
conspiracy) a firearm or destructive device. INA
§ 237(a)(2)(C).
Firearm defined in 18 U.S.C. § 921(a).
Statute of conviction must specify a firearm is
involved. Matter of Perez-Contreras, 20 I&N Dec.
615 (BIA 1992).
Consequences of Firearms Offenses
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Not a ground of inadmissibility, unless a CIMT.
Depends on severity and intent.
A ground of removability and may be placed in
removal proceedings
Will not be denied U.S. Citizenship, unless a
CIMT or agg felon
Subject to mandatory detention
Still eligible for waivers of inadmissibility or
removal, unless an agg felon
Categorical Approach
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Strict categorical approach to determine whether
conviction triggers immigration consequences.
Descamps v. United States, 133 S.Ct. 2276 (2013);
Mellouli v. Lynch, ___ U.S. ____, No. 13-1034 (June
1, 2015).
First look at the language of the federal/state
statute of conviction taken at its minimum and see
whether it matches a ground of inadmissibility or
removability.
The actual conduct leading to the conviction is
irrelevant.
Look to see whether all the conduct criminalized
under the statute fits a ground of inadmissibility or
removability.
Modified Categorical Approach


When the statute of conviction defines
more than one offense, the categorical
analysis cannot be performed until it is
determined which of the offenses the
individual was convicted of.
The court can look at the “record of
conviction” - consists of charging
document, indictment, information, plea,
verdict, and sentence not police report.
Matter of Teixeira, 21 I&N Dec. 316 (BIA
1996)
Defense Strategies
Negotiate sentence under one year (if that
Matters for immigration):
 Waive credit for time served
 Have client spend more time in jail instead
of having suspended sentence over one
year
 Have client serve more straight probation
Defense Strategies
To the extent practicable ensure that the
record does not reflect an inadmissible/
deportable offense – what’s in the record:
 Charging document
 Official record of judgment and conviction
 Official record of plea (including
transcript)
 Official record of verdict
 Official record of sentence
Defense Strategies

Modify the record of conviction – ask the
prosecutor to issue new charging
document
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Example: Va. 18.2-89 is not a CIMT unless
the record reflects B&E with intent to commit
a CIMT; ask prosecutor to amend charge to
B&E with intent to commit trespass
Plead to a another offense that does not
trigger adverse consequences.
Vacating a “Conviction”


For conviction to be vacated for
immigration purposes it must be vacated
on basis of substantive or procedural
defect NOT for rehabilitative purposes or
to ease immigration hardships. Matter of
Pickering, 23 I&N Dec. 621 (BIA 2003)
Substantive or procedural defect must
have existed at the time of conviction
Vacating a “Conviction”

Motion to vacate conviction must be based on
legal defect existing at time of conviction
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E.g. motion to withdraw guilty plea, motion to vacate
conviction, habeas corpus, coram nobis, audita
querela
Coram nobis and audita querela limited in Virginia.
Commonwealth v. Morris, 281 Va. 20 (2011)
Record should not indicate that it was vacated to
avoid adverse immigration consequences.
However, if state has advisal statute can use
that as valid ground to vacate conviction. Matter
of Adamiak, 23 I&N Dec. 878 (BIA 2006).
VA does not have a formal advisal statute.
Modifying a “Sentence”
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Court decision to reduce a sentence nunc pro
tunc to less than one year is given full faith and
credit by the immigration courts, even if it is to
avoid adverse immigration consequences. Matter
of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005).
Could also use to qualify conviction for “petty
offense exception”
E.g. Commonwealth v. Mohamed, 71 Va. Cir.
383 (Arlington County 2006).
Pardons

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Full and unconditional pardons from the
governor will remove crimmigration
consequences.
In Virginia it must be an “absolute
pardon.” Simple or conditional pardon not
enough.
Padilla v. Kentucky, 559 U.S.
356 (2010)
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Ineffective Assistance of Counsel - Should
defense counsel advise defendant of
possible adverse immigration
consequences if they plead guilty?
Supreme Court held yes if upon reading of
immigration statute it is fairly succinct and
straightforward that client will face
deportation. If not succinct and
straightforward, then only warning of
possibility of deportation sufficient.
Zemene v. Clark, 768 S.E.2d
684 (Va. 2015)

Defense attorney’s performance fell below
Strickland standard because failed to:
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Learn the “precise nature” of client’s
immigration status
Determine “potential negative consequences”
relative to immigration status under plea
Broach subject of immigration consequences
to Commonwealth Attorney in plea
negotiations
Discuss with client likelihood of immigration
consequences of plea
Virginia Justice Project

Updated immigration consequences of
Virginia criminal convictions by Capitol
Area Immigrant’ Rights Coalition at
http://www.caircoalition.org/what-wedo/vjp/vjp-immigration-consequencesresources/
Questions?
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Hugo Valverde
757-422-8472
[email protected]