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What Every Lawyer Needs to Know About Immigration Law:
An Overview of Federal Immigration Law
Laura W. HarperLanier Ford Shaver & Payne P.C.
2101 West Clinton Ave., Suite 102Huntsville, AL 35805
www.LanierFord.com
© 2013
Overview
Assisting non-citizens in criminal defenseRecognizing potential relief for EWI clientsRecognizing potential paths to LPR status or
citizenship for out-of-status or EWI clients
Padilla v. Kentucky, 130 S.Ct. 1473 (2010)
Under the 6th Amendment, defense counsel must inform client whether his plea carries risk of deportation.
Failure to inform the noncitizen (includes LPRs) of immigration consequences of plea can now be basis for ineffective assistance claim.
Plea soliloquy including warning that plea “may” trigger immigration consequences likely not sufficient. See Hernandez v. State, ___So.3d__, 2012 WL 5869660 (Fla., 2012).
Padilla (cont.)
Determining the immigration consequence is not a simple process. Immigration law has been described by Ninth Circuit as “second only to the Internal Revenue Code in complexity.”
Bifurcated duty:• If deportation is clear, attorney has duty to affirmatively and
accurately advise noncitizen client about the likelihood of deportation
• If deportation is not clear, attorney has duty to advise about the possibility of adverse immigration consequence
State courts historically have little experience with immigration law
DOJ administrative tribunals perform the bulk of analysis regarding deportability.
Judges from Executive Office for Immigration Review (EOIR) make determinations which are appealable to the Board of Immigration Appeals (BIA).
After BIA determination, appealable to federal courts State courts have consistently gotten this analysis wrong;
e.g. Lora v. State, 2010 WL 2802107 (R.I. Super. Ct. July 12, 2010); People v. Cristache, 907 N.Y.S.2d. 833 (N.Y. Crim. Ct. 2010).
What should a criminal defense attorney do in light of Padilla?
Focus on clear instances of deportability.Likely should not focus on availability of waivers,
although that issue will likely be taken up by the Supreme Court this term.• That is, do not do analysis of potential for cancellation
of removal or other waivers available.
Criminal Grounds of Deportation CIMT: CIMT committed within 5 years of admission and
sentence of 1 year or longer may be imposed. U.S.C. § §1227(a)(2)(A)(i) &(ii)
Multiple CIMTs: If at any time after admission, alien is convicted of two CIMTs not arising out of a single scheme of criminal misconduct.
Aggravated Felonies: Convicted of an aggravated felony at any time after admission. 8 U.S.C. § § 1101(a)(43), 1227(a)(2)(A)(iii).
Inadmissibility: Criminally inadmissible.
Criminal grounds of deportation, cont’d Drug-related offenses: If at any time after admission, has been
convicted of a violation of or a conspiracy or attempt to violate any law or regulation of a state, U.S., or foreign country relating to a controlled substance as defined in 21 U.S.C. §802. 8 U.S.C. §1227(a)(2)(B)(i).
Firearms: If at any time after admission, is convicted of owning, possessing or carrying in violation of any law, any weapon, part or accessory which is a firearm as defined in 18 U.S.C. § 921(a).
Sex Trafficking. DV, Stalking, P.O. Violations, child abuse: 8 U.S.C. §1227(a)(2)(E). Sex offender who fails to register: A conviction under 18 U.S.C.
§2250 for failing to register as a sex offender.
CIMT “Conduct which is inherently base, vile or depraved and contrary
to the accepted rules of morality and the duties owed between persons or to society in general . . . malum in se.” Matter of Llores I&N Dec. 225,227 (BIA 1980)
Examples of CIMTs:• Aggravated assault and battery.• Carrying concealed weapon with intent to use.• Aggravated DUI (enhanced by suspended license).• Kidnapping.• Mayhem.• Murder and voluntary manslaughter.• Robbery.
CIMTs cont’d
Crimes held not to be CIMT:• Simple assault and battery.• Child abandonment,• Contributing to the delinquency of a minor.• Leaving the scene of an accident.
Mens rea required often key element:• Requires “some degree of scienter, whether specific
intent, deliberateness, willfulness or recklessness.” Matter of Silva-Trevino, 24 I&N Dec. 687, 689 n.1 & 706 n.5 (AG 2008)
Aggravated Felonies Applies to both federal and state laws, but can be classified
as a misdemeanor under state law. See 8 U.S.C. §3509(a)(8).
Murder, rape, sexual abuse of minor. Trafficking in controlled substances. Crimes of violence. Theft, burglary, receipt of stolen property Child pornography. RICO. Prostitution or slavery.
Criminal inadmissibility CIMT 8 U.S.C. §1182(a)(2)(A)(i)(I).
• Convicted of CIMT.• Admit to DHS / Consular Officer CIMT.• Admit to committing acts that constitute the essential elements of
such crime. Juvenile crimes: Not inadmissible if treated as juvenile
when committed crime and committed 5 years before sought admission.
Petty offense exception: If max penalty possible for crime did not exceed imprisonment for 1 year and if convicted, not sentenced to term in excess of 6 months.
Resources
www.crimmigration.comChecklist (included in handout)http://nortontooby.com/
Other grounds for deportation
Inadmissible at time of entry.Status violations (such as unauthorized work,
marriage fraud).Economic – public chargeSecurity or political reasons (such as terrorism,
Nazi).Unlawful voting.
What forms of relief may be available to your client?
Asylum.Convention Against Torture (CAT)Temporary Protected Status (TPS)Deferred Action for Childhood Arrivals (DACA)S, T & U visas.Family-based adjustment.
Asylee
Asylee is someone who meets the definition of a refugee, but is in the U.S. or at a border. 8 U.S.C. §1158(a).
Refugee is any person who because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, is unable or unwilling to return or avail themselves of protection in their home country. 8 U.S.C. §1101(a)(42)(A).
Asylum (cont.)
Persecution is threat to life or threat to freedom from suffering harm. • Economic, if severe enough.• Persecution is not harsh conditions or general strife
shared by many. What is a social group?
• Has common, immutable characteristics (11th Cir.).
CAT
UN Convention against torture – a person cannot be returned to a place where they will be tortured.
Torture is act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person. 8 C.F.R. § §208.18(a)(1), 1208.18(a)(1).
Torture must be done with consent or acquiescence of the government.
Temporary Protected Status Temporary safe haven in the U.S. if the Attorney
General determines:• Ongoing armed conflict.• Earthquake, flood, draught, epidemic.• Temporary extraordinary conditions in foreign state
which prevents safe return. 8 U.S.C. §1254(a). Granted for 6-18 months. May be extended. Can receive work authorization and advance parole
(permission to travel outside of U.S. and return).
Deferred Action for Childhood ArrivalsQualifications
Under age 31 as of June 15, 2012. Came to U.S. before 16th birthday. Physically present in the U.S.: BOTH
• On June 15, 2012 AND• At the time of application
EWI before June 15, 2012 or status had expired. School or military service (see below). Have not been convicted of a felony, significant
misdemeanor, three or more misdemeanors and do not otherwise pose threat to national security or public safety.
DACA criminal requirements
Felony: Punishable by imprisonment for a term exceeding one year (doesn’t matter what term was actually given)
Significant misdemeanor: Punishable by 1 year or less AND• Regardless of sentence is DV, sexual abuse, exploitation, burglary,
unlawful possession or use of firearm, drug distribution or trafficking, DUI OR
• If not listed above, individual was sentenced to more than 90 days in custody.
Non-significant misdemeanor : Not listed above, minor traffic violation, sentence less than 90 days.
DACA School / Military
Currently enrolled in school (GED program);Has graduated from high school or obtained
certificate of completion;Has obtained GED; ORHas been honorably discharged from the Coast
Guard or Armed Forces
Effects of DACA Two years of no removal and can request extension. Prosecutorial discretion: May not be extended by different
administration. Can get work authorization. Can get AP for education or humanitarian purposes (not
vacation).• If you travel without AP, DACA terminated.• Be very cautious if client has order of removal or deportation,
because may be considered to “self-deport.” Once granted, stops clock for accrual of unlawful presence.
S, T, and U Visas
S – (200/yr) witness who has critical information and AG determines are essential to prosecution.
T – (5,000/yr)• Victim of severe trafficking (use of force, coersion for sex
trafficking, slavery, peonage) and• Present in the U.S. because of trafficking• Have complied with prosecution or law enforcement• AND would suffer extreme hardship or harm upon return to
country of origin. S – (10,000/yr) – victims of crimes.
U Visas (cont.)
Victims have suffered substantial physical or mental abuse because of qualifying criminal activity;
Possess credible information; ANDHave been, are, or likely will be helpful to a
certifying agency;• Prosecutor, judge, supervisor who agency has granted
authority to give certificationCan get EAD.
Family-based adjustments Immediate relatives: Children, spouses and parents of USC
• VAWA petitioners – battered spouses, children or parents• Child (8 U.S.C. 57 So.2d 218 1101(b)(1)) unmarried person under
21 years of age AND: Born in wedlock. Step child, whether legitimate or not, as long as child was under 18 when
step-relationship was created. Legally legitimated before 18 if in custody of father at time of legitimation. Born out-of-wedlock where relationship is either with the mother or with
the father. Children adopted before 16 having 2 years legal custody and residence
with adopting parents.
Family Adjustments (cont.)Parents: father or mother established by definition
of child.Only USC children 21 or older can petition for a
parent.Siblings of USC.Spouses not subject to numerical cap.Note: Same sex couples married in state that
recognizes same-sex marriage may be eligible to adjust.
Family Adjustments (cont.)
Visa preferences:• First Preference: unmarried sons and daughters of
USCs.• Second: Spouses and unmarried children and sons and
daughters of LPRS.• Third: Married sons and daughters of USCs.• Fourth: Brothers and sisters of USCs.
Other considerations
Employment-based immigration.Comprehensive immigration reform.Special Juvenile Immigrant Status (SJIS)
Questions?Laura W. Harper
Lanier Ford Shaver & Payne P.C.2101 West Clinton Ave., Suite 102
Huntsville, AL 35805256-535-1100
www.LanierFord.com
© 2013
Glossary
AP: Advanced Parole CAT: Convention Against Torture CIMT: Crime involving moral turpitude DACA: Deferred Action for Childhood Arrivals EAD: Employment Authorization Document (work visa) EWI: Entered Without Inspection LPR: Lawful Permanent Resident (Green card) USC: United States Citizen VAWA: Violence Against Women Act
Immigration Statistics
Approximately 11 million undocumented workers live in the United States
Around 400,000 are deported annuallySince inception, around 588,000 have applied for
DACA, and the approval rate is close to 77%According to Gallop: 87% of Americans support
comprehensive immigration reform that includes waiting periods, taxes and penalties, background checks and learning English
