Natasha V. Snow, Esq.SNOW & NICHOLS, LLC3172 CAHABA HEIGHTS ROADBIRMINGHAM, ALABAMA 35243PHONE (205) 437-4700

EMAIL NSNOW@SN.ATTYS.PRO

REMOVAL DEFENSE AND REPRESENTING CLIENTS IN

IMMIGRATION COURT

Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010)

The United States Supreme Court held that criminal defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea.

UNITED STATES CITIZENS

Generally, United States citizens will not face any immigration issues as a result of a criminal conviction.

LAWFUL PERMANENT RESIDENTS

Can be deported as a result of a criminal conviction based on statutory grounds of deportability.

Can also be subject to inadmissibility if they travel outside the United States and apply for re-entry at the border.

A criminal conviction may also jeopardize a lawful permanent resident’s ability to naturalize.

LAWFUL PERMANENT RESIDENTS

Under INA section 237(a)(2), can be removed for: Crime involving moral turpitude within five years of admission

Aggravated felony

High-speed flight

Failure to register as sex offender

Controlled substance violations

Firearm offenses

Miscellaneous crimes

Domestic violence, stalking, child abuse, violation of protective orders

Trafficking in persons.

LAWFUL NON-IMMIGRANTS

Non-immigrant visa holders (students, exchange visitors, foreign workers) are subject to both deportability for criminal convictions and inadmissibility if they leave the country and apply for re-entry in the future.

ASYLEES AND REFUGEES

Those who apply for asylum or withholding of removal may become ineligible if convicted of an aggravated felony or a particularly serious crime.

“ILLEGAL”ALIENS

Undocumented aliens convicted of certain crimes may become ineligible for any future application for immigration benefits.

Could be barred from applying for relief from removal, such as cancellation of removal.

TPS AND DACA

Generally, a criminal conviction would jeopardize these temporary status designations.

T, U and S Visas

Victims of certain crimes, government informants and victim human trafficking are allowed to apply for a waiver of a criminal conviction if they can show rehabilitation and general good moral character.

GROUNDS OF DEPORTABILITY

Crimes Involving Moral Turpitude Aggravated felonies Crimes involving controlled substances Crimes relating to firearms Domestic violence, stalking, or violation of a protective order High speed flight; and Failure to register as a sex offender. INA section 237(a)(2)(A).

GROUNDS OF INADMISSIBILITY

Controlled substance violations (conviction or admission) A crime involving moral turpitude (conviction or

admission) or an attempt to commit such a crime Multiple crimes Controlled substance trafficking Money laundering Being a significant trafficker in persons Prostitution and commercialized vice.INA section §212(a)(2).

Crime Involving Moral Turpitude

Crimes involving moral turpitude have been defined to be those crimes that involve conduct that is reckless, evil, and/or morally reprehensible.

Conviction of a crime that matches this description—or in some cases, even just admitting to the crime—can result in denial of a visa or resident card application.

Aggravated Felony

“Aggravated felony” is a term of art used to describe a category of offenses carrying particularly harsh immigration consequences for noncitizens.

A crime does not have to be “aggravated” or a “felony” to qualify. It just have to be on the list (8 U.S.C. section 1101(a)(43)). Examples: A crime of violence for which the term of imprisonment is at least one year;

A theft offense or burglary offense for which the term of imprisonment is at least one year.

Potential consequences: removal without a hearing (non-LPRs), mandatory detention, ineligibility for asylum, permanent inadmissibility.

PETTY OFFENSE EXCEPTION

A crime involving moral turpitude is considered a “petty offense” if: the maximum penalty that you could have received for

committing the offense is exactly one year or less, AND the imposed sentence was no more than six months of

imprisonment, regardless of the amount of time actually served.

INA section 212(a)(2)(A)(ii)(II)

WHAT IS A CONVICTION ACCORDING TO IMMIGRATION

LAWImmigration and Nationality Act (INA) section 101(a)(48) [8]USC section 1101(a)(48):

(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

WHAT IS A CONVICTION ACCORDING TO IMMIGRATION

LAW(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

PRETRIAL INTERVENTION OR DIVERSION

A pretrial diversion is not, generally, a conviction under INA section 101(a)(48)(A) because the first prong is not met unless a defendant enters a guilty plea. However, some immigration courts rule otherwise.

What Part of the Conviction Record is Admissible in Immigration Court?

“the charging document, written plea agreement, transcript of plea colloquy, and any explicit findings by the trial judge to which the

defendant assented.”Shepard v. U.S., 544 U.S. 13, 16 (2005) [the “Shepard documents”].

WHAT IS NOT A CONVICTION?

An acquittal or “not guilty”

A nolle prosqui

Refusal to prosecute

A pending case

A juvenile delinquency finding

Vacated conviction (but not if done for a rehabilitative program or immigration purposes)

POTENTIAL CONSEQUENCES OF

SPECIFIC CRIMES

DUI

A DUI conviction negatively affects good moral character for purposes of citizenship application, cancellation of removal application, and non-immigrant visa applications.

CRIMINAL TRESPASS

Not a crime of moral turpitude but may affect good moral character for certain applications.

DOMESTIC VIOLENCE

May be considered a crime of moral turpitude depending on the elements of the offense.

HARASSMENT

Harassment could be a crime of moral turpitude since the Alabama statute includes “intent to harass, annoy, or alarm another person.” Alabama Code Title 13A. Criminal Code section 13A-11-8.

SHOPLIFTING

Generally, a theft offense is considered a crime of moral turpitude where intent is required for a conviction.

PUBLIC INTOXICATION

Not a crime of moral turpitude since there is no intent specified in the Alabama statute. See Alabama Code section 13A-11-10.

MISDEMEANOR MARIJUANA POSSESSION

Any drug-related conviction is extremely serious for immigration purposes. If your client must enter a plea of guilt for possession of marijuana, and the amount is less than 30 grams, make sure the court record reflects the amount of the drug and specifies “for personal use.” This may ensure that a lawful permanent resident is not removed for this offense. However, s/he may still be inadmissible if re-entering the country.

POSSESSION OF DRUG PARAPHENALIA

One cannot be removed for possession of drug paraphernalia. Mellouli v. Lynch, 135 S.Ct. 1980 (2015). But such a conviction can still affect good moral character determination for certain applications.

SPEEDING TICKETS

Normally, speeding tickets alone will not harm one’s immigration status.

INDECENT EXPOSURE

Indecent exposure is a crime of moral turpitude and, thus, is a serious offense for immigration. Cortes Medina, 26 I&N Dec. 79 (BIA 2013) [analyzing California Penal Code section 314(1)].

GIVING FALSE INFORMATION TO POLICE OFFICER

Giving false information to a police officer will be considered a crime of moral turpitude for immigration purposes because it includes intent as an element:

A person commits the crime of giving a false name or address to a law enforcement officer if the person gives a false name or address to a law enforcement officer in the course of the officer's official duties with intent to mislead the officer.

[Emphasis added]. Alabama Code section 13A-9-18.1.

MANDATORY IMMIGRATION DETENTION

a crime involving moral turpitude if the individual was sentenced to at least one year of imprisonment

multiple convictions where the combined sentences are five years or more of imprisonment

a controlled substance offense (any drug offense, including if the immigration authorities have reason to believe that you are a drug trafficker)

a prostitution-related offense

terrorist activity

significant human trafficking, and

money laundering.

NOTE: Conviction is not necessary. Admission is enough.

Immigration Court Procedure• NOTION TO APPEAR

• CONTESTING REMOVABILITY

• MASTER CALENDAR HEARING

• INDIVIDUAL HEARINGS

• IMMIGRATION JUDGE DECISIONS AND APPEALS

FORMS OF RELIEF IN IMMIGRATION COURT

Adjustment of Status

Waiver

Termination of Proceedings

Cancellation of Removal

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

Voluntary Departure

QUESTIONS