Defending the Non-Citizen Client

Supreme Court Ruling: Counsel must inform non-citizen criminal clients about risk of deportation.

Importance of accurate legal advice for non-citizens accused of crimes has never been more important.

Changes to immigration law have dramatically raised the stakes of a non-citizen’s criminal conviction by expanding the class of deportable offenses and limiting judges’ authority to alleviate deportation’s harsh consequences.

As a matter of federal law, deportation is an integral part of the penalty that may be imposed on non-citizen defendants who plead guilty to specified crimes.

In the 3/31/10 Supreme Court Ruling of Padilla v. Kentucky, a lawful permanent U.S. resident for over 40 years, faces deportation after pleading guilty to drug distribution charges in Kentucky. In post conviction proceedings, he claims that his counsel not only failed to advise him of the risk of deportation before he entered the plea, but also told him not to worry about deportation since he had lived in the country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla’s post conviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a ‘collateral’ consequence of a conviction.

This is not a hard case to find deficiency, but others will not be so clear cut. There will, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. Informing defendants of possible deportation can benefit both the State and non-citizen defendants, who may be able to reach agreements that better satisfy the interests of both parties.

Representing Non-Citizens in Criminal Cases

The effect of criminal convictions on immigration status is a twisted law school exam question. While this article is meant to provide a foundation for representing non-citizen defendants facing criminal charges, it is not exhaustive. Aligning yourself with a competent immigration attorney may be your best defense as you defend a non-citizen client.

To begin a proper analysis one must have a definitional basis. Many of you may understand these basic principles, but it is in these subtleties that an accurate analysis of your client’s situation is found. The first step is to define your client. This definition is an exact understanding of their status. The basic questions that should be asked are: Did they make a lawful entry? Have they arrived on a visa? Are they in status or out of status on that visa? Are they a Lawful Permanent Resident? How long have they been a Lawful Permanent Resident?

In today’s climate, if your client is illegally present in the U.S., either by an illegal entry or failing to maintain status, any arrest or sentence that results in incarceration can place your client at risk for deportation. Generally, all jails contact Immigration and Customs Enforcement regarding an alien inmate. Immigration Enforcement conducts an interview of the individual regarding their presence in the United States and determines if an Immigration detainer should be placed on the individual.

If your client illegally entered the country without being inspected then he is both “inadmissible” and “deportable.” Inadmissibility for criminal grounds is defined at 8 USC §1182(a)(2). Deportability is defined at 8 USC 1227(a)(2). If your client was inspected upon his entry, i.e. he entered on a visa and was inspected at the border or point of entry, then, in most cases he will be only subject to grounds of deportability. However, Lawful Permanent Residents who have departed the United States may, in some instances, upon their re-entry be subject to both grounds of inadmissibility and deportation.

The second step is to define the crime. Crimes bearing immigration consequences are generally divided into two classes: Crimes Involving Moral Turpitude (CIMT) and Aggravated Felonies. Aggravated Felonies are defined at 8 USC §1101 (a)(43). Crimes Involving Moral Turpitude are not defined statutorily but are loosely characterized as:

Anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule or right and duty between man and man.

(9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) §40.21(a), N2.2)

In essence, a Crime Involving Moral Turpitude is a crime that is Malum In Se as opposed to Malum Prohibitum. However, much like everything else in Immigration, it is not that clear. For example, a worthless check charge in one jurisdiction may not rise to a CIMT, however, in another jurisdiction, if the statute contains as an element, fraud, a CIMT may very well be established. Likewise, a DUI conviction is not a CIMT, however a DUI where the driver was also suspended at the time of arrest is a CIMT. The distinction being that since the driver had a suspended license the driver would have been aware he was prohibited to drive. The violation of that prohibition, aggravated by the DUI has been held to meet the threshold for a CIMT. Matter of Lopez-Meza Int. Dec 3423 (BIA 1999). Thus, as a general rule, in determining whether or not a crime is a CIMT, a careful statutory analysis of the elements of the offense is necessary.

A single conviction for a CIMT will make your client inadmissible, but a single, first time, conviction for a CIMT may not necessarily make your client deportable.

Aggravated felony convictions are equally troublesome. Any conviction for a crime amounting to an aggravated felony will make your client inadmissible and/or deportable. There may or may not be a waiver for that crime. A crime may be both an Aggravated Felony and a CIMT, i.e. sexual abuse of a minor, or it may only be either an Aggravated Felony or a CIMT.

Controlled substance convictions will result in removal with one exception. A first time conviction for personal use possession of marijuana, under 30 grams, is subject to waiver. However, possession of drug paraphernalia is a crime “relating to a controlled substance” and as such is a deportable offense. It is important to note that controlled substance violations are some of the most lethal as no waivers are specifically available. Therefore, when evaluating the potential collateral consequences of a controlled substance violation, extra care must be taken in aggressive representation.

Finally, in resolving cases, it is absolutely necessary to make sure that what may not be considered a conviction under criminal statues, are not considered convictions for immigration purposes. 8 USC §1101(a)(48)(A) defines conviction as follows:

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 – 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 the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

Thus, a diversion, which is a contract between the District or County Attorney and the client, without judicial intervention, will likely not be considered a conviction. However, a diversion, or in Missouri, a suspended imposition of sentence, wherein a plea is taken before a judge and that judge has imposed probation-like restrictions which are to be met before the case is dismissed, would be a conviction for immigration purposes. Therefore, careful consideration should also be given to the definition of a “conviction” when disposing of criminal charges.

Alarmingly, in some cases a conviction is not necessary to trigger an Immigration consequence. 8 USC §1182(a)(2)(A)(i) sets out that an alien is inadmissible “who admits having committed, or who admits committing acts which constitute the essential elements of – a crime involving moral turpitude.” Therefore, a diversion agreement in which your client admits to the contents of the police report or the affidavit could subject them to removal.

These pieces are just the basics. They can hopefully provide some guidelines to assist you in making critical decisions for your clients. These statutes change frequently. The Supreme Court, all eleven Circuit Courts, and the Board of Immigration Appeals each create new case law on a daily basis that must be entered into this analysis. It is confusing but diligent representation can often help to avoid dire consequences for your non-citizen client.

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Special Conditions Merit Expedited Background Checks for Residency, Citizenship

Some Special Conditions Merit Expedited Background Checks for Residency, Citizenship

Immigration Lawyers Can Help Applicants Negotiate Complex System

For immigrants to the United States who are mere steps from completion of their residency or citizenship applications, the wait has become agony.

Background checks form the bottleneck that slows this process to an average of eight months for all applicants. The U.S. Citizenship and Immigration Service (USCIS) requires an FBI fingerprint check, FBI name check, and an IBIS name check on applicants for residency. IBIS is a database that allows USCIS to check names against approximately 20 different federal agencies’ records.

The FBI receives more than 60,000 name check requests each week, and there is still a backload of unprocessed requests numbering more than 2 million.

Because federal law requires that applicants receive notification of the decision on a residency application within 120 days of the interview, some applicants have successfully filed suit when the process has stretched beyond this time limit due to background checks. In fact, the FBI now considers a “lawsuit pending in Federal Court” as grounds for expediting stalled background checks. The number of such lawsuits grew in 2005, with immigrants citing long waits on their applications for citizenship or residency.

USCIS officials are now refusing to schedule citizenship interviews and tests unless an applicant’s background checks are already complete,
effectively circumventing the 120-day time limit.

There are a few circumstances under which the USCIS will expedite a background check. These are:

  • When the applicant is about to be deployed by the U.S. Armed Forces.
  • When an applicant is close to “aging-out.” An example would be when a child who had filed for residency through a parent is about to turn 21. Because the child is about to become too old to remain in the category under which he or she filed, USCIS may consider expediting the background check.
  • When the applicant shows a compelling reason that necessitates speeding up his or her name check—such as a critical medical condition.
  • When a Refugee or Asylee has applied for residency within two years of gaining asylum or refugee status. In this case, the applicant can request that USCIS expedite the name check if he or she has already waited at least one year for FBI security clearance, and there are no other obstacles to residency.
  • When the applicant, through an attorney, files a mandamus action. A writ of mandamus essentially forces the government to make a decision in a case. A mandamus action does not guarantee a decision in the applicant’s favor, but it can speed up the background check.

A qualified immigration attorney can help individuals determine if their case meets any of the criteria necessary to expedite the FBI name check. If such conditions do not exist, the USCIS will refuse to make the FBI expedite the process unless it is sued. Your attorney can also review your case to determine if, or when, such action might be advisable.

“I understand the frustration many applicants feel with the slow pace of this process. Even just checking on the status of your application can be a complicated endeavor,” said Rekha Sharma-Crawford, a Kansas City-based immigration lawyer. “We urge immigrants to talk to an immigration lawyer. They can help applicants stay current on any changes in the law that might affect them, and help to avoid delays in the process if possible.”

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