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Understanding Immigration Consequences of Federal Criminal Convictions

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Understanding Immigration Consequences of Federal Criminal Convictions UNDERSTANDING IMMIGRATION CONSEQUENCES OF FEDERAL CRIMINAL CONVICTIONS Ubong E. Akpan NOTES FDFCDC 145 Guide to Understanding Immigration Consequences of Federal Convictions* Ubong E. Akpan Attorney Advisor Defender Services Office Training Division Washington, DC April 2019 Frank Dunham Federal Criminal Defense Conference * This document is not a substitute for legal advice. Immigration law constantly changes and this document should not replace legal research. FDFCDC 146 TABLE OF CONTENTS I. OVERVIEW 4 II. CHECKLIST 5 III. IMMIGRATION STATUSES 6-9 IV. REMOVAL & FORMS OF IMMIGRATION RELIEF 9 V. DEPORTABILITY VS. INADMISSIBILITY 10 VI. 5 MAJOR CRIME CATEGORIES FOR REMOVAL 10-15 a. Crimes Involving Moral Turpitude 10-11 b. Firearms Offenses 11 c. Drug Offenses 12 d. Domestic Violence Offenses 13 e. Aggravated Felonies 13-15 VII. ADDITIONAL RESOURCES 16 VIII. APPENDIX 17 a. ILRC Immigrant Defendant Questionnaire 18-20 b. Immigrant Defense Project’s Immigration Consequences of Convictions Summary Checklist – DACA Supplement 21-22 c. Fd.org Immigration Resources 23 d. List of Federal Misdemeanors 24-42 3 FDFCDC 147 I. OVERVIEW Noncitizen clients are facing more and more criminal prosecutions with the harsh consequences of serving federal time and being deported from the United States. Knowing whether your client’s conviction will be a crime involving moral turpitude versus an aggravated felony may make the difference between remaining in the U.S. with their family and being deported. This guide provides you with the major deportable and inadmissible crimes, (i.e. aggravated felonies, crimes involving moral turpitude, domestic offenses, drug offenses, and firearms). Understanding immigration consequences takes time and research. This guide is not a substitute for legal research. Since the consequences can be severe for noncitizens, defense counsel must seek the advice of an immigration attorney. 4 FDFCDC 148 UBONG’S CHECKLIST FOR UNDERSTANDING IMMIGRATION CONSEQUENCES Complete the immigration questionnaire with your client to obtain their immigration history. Knowing your Client’s Immigration STATUS matters. Many times, the client is unsure of his or her history and family members will need to be interviewed. Obtain your client’s Alien file (A-file) from the AUSA. In federal cases, this should be part of your discovery. Consult with an immigration attorney as soon as possible on the case The National Immigrant Justice Center provides free immigration advice for federal defenders and panel attorneys. An immigration attorney can inform you of the forms of immigration relief or other options that may be available for the client, from A (Adjustment of Status) to T (Trafficking Victim Visa). Is it a “conviction” for immigration purposes? Many federal criminal dispositions will meet the definition of “conviction” under 8 U.S.C. § 1101(a)(48)(A); however, it is good to check and to check your client’s priors against the definition. See blue part of the Immigration Aide. Is it an aggravated felony based on the term of imprisonment? Some aggravated felonies are based on the term of imprisonment. If you avoid the term of imprisonment, usually 1 year, you may be able to escape the aggravated felony definition. Is the instant offense OVERBROAD and INDIVISIBLE as compared to the generic offense? For the categorical approach & modified categorical approach flowchart and other materials, click here. If the instant offense involves a controlled substance, be aware that admissions (as opposed to convictions) can make the client inadmissible. See 8 U.S.C. § 1182(a)(2)(A) and (C). Also see Understanding Immigration of Drug Consequences materials here. Consider filing a motion for pretrial release (Trujillo motion). “Pretrial release is the foundation upon which a successful defense is built.” See more information on Trujillo Motions Sweeping the Country here. Understanding Immigration Consequences of Federal Convictions - April 2019 Ubong E. Akpan, Attorney Advisor, DSO- TD FDFCDC 149 III. IMMIGRATION STATUSES It's important to know your client's immigration status because the criminal conviction will directly impact her chances of remaining in the United States and the length of time she may have to remain. Various Types of Immigration Statuses a. USC – United States Citizen (born or naturalized) i. Born – in the US or its incorporated territories 1. Certain locations a. Persons born in the Northern Mariana Islands after 1/19/1978 are USCs by a covenant between the US and the Commonwealth of the Northern Mariana Islands. Sabangan v. Powell, 375 F.3d 818, 821 (9th Cir. 2004) (emphasis added) Explaining “The Covenant, section 501 makes section 1 of the Fourteenth Amendment apply as if the Northern Mariana Islands ‘were one of the several States.’ The language is precise. It speaks as the Constitution itself speaks-e.g., ‘The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.’ U.S. Const. art. I, § 2. ‘The Citizens of each State shall be entitled to all privileges and immunities of Citizens in the several States.’ U.S. Const. art. IV, § 2. The government's effort to distinguish ‘one of the several States’ from a State within the United States depends on gossamer reasoning that common sense must blow away.” ii. Derivative – born outside the US to one or both parents who are USC; special provisions apply to children adopted by a USC. 1. Statutes: Child born to a USC - 8 U.S.C. § 1431 (a); Child adopted by a USC parent – 8 U.S.C. § 1431(b); Sessions v. Morales-Santana, 137 S.Ct. 1678, 1686 (2017) The government sought to remove Morales-Santana based on his criminal convictions. He challenged his removal by claiming derivative citizenship since he was born in the Dominican Republic to a USC father. However, his father was 20 days short of establishing physical presence in the United States, which was required at the time for unwed fathers. The Supreme Court “h[e]ld that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons ‘the equal protection of the laws.’” It further explained, “[n]evertheless, we cannot convert § 1409(c)'s exception for unwed mothers into the main rule displacing § 1401(a)(7) (covering married couples) and § 1409(a) (covering unwed fathers).” Legislative changes are up to “Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U.S.-citizen and one alien parent, wed or unwed,” and the Court stated that “[i]n the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination.” 6 FDFCDC 150 Villegas-Sarabia v. Sessions, 874 F.3d 871, 883–84 (5th Cir. 2017), cert. denied, 139 S. Ct. 320, 202 L. Ed. 2d 218 (2018) On the issue of retroactivity of Morales-Santana, the Supreme Court “did not rewrite the previous statutory regime or apply the ‘now-five-year’ rule retroactively. Instead, the Court emphasized that its decision would affect future rights only.” iii. Naturalized – must meet residency requirements, 3-5 years, and be of good moral character to become a citizen; 1. Statutes: See Requirements at 8 U.S.C. § 1427. 2. If convicted a crime, generally cannot be removed from the US, but client can be de-naturalized due to illegally procuring citizenship. See 18 U.S.C. §1425 and the following: United States v. Suarez, 664 F.3d 655, 662 (7th Cir. 2011) (federal crime); Holding that naturalized citizen, who committed drug offense during the statutory period prior to taking the oath but was indicted, arrested, and convicted after naturalization was subject to denaturalization and explaining that “we think it highly unlikely that Congress intended for applicants who, during the statutory period, commit crimes that would disqualify them from naturalization to nonetheless slide through the loophole Suarez asks us to create if they manage to evade detection and conviction until after they are naturalized.” United States v. Jammal, 90 F.Supp.3d 618 (S.D. W. Va. 2015) (federal crime) Granting motion for summary judgement in civil denaturalization (8 U.S.C. § 1451) case where defendant was involved in repackaging infant formula scheme, then a few months later became a naturalized citizen, then three years later plead guilty to one count of aiding and abetting the introduction and delivery for introduction into interstate commerce misbranded food, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 331(a) and 333(a)(1) and noting that continuous acts under 21 U.S.C. § 331(a) constituted multiple CIMT(s) and thus no petty offense exception was available. United States v. Agyemang, 2018 WL 3245048 (E.D. N.C. July 3, 2018) (state crime) Granting motion for summary judgement in civil denaturalization (8 U.S.C. § 1451) case where defendant obtained citizenship (on June 21, 2000) prior to pleading guilty to NC state offense of sexually assaulting his minor stepchild (on November 5, 2003) and the record of conviction established that the offense took place before he obtained citizenship (on April 1, 2000), thus establishing that he committed an offense for which he was not arrested. DENATURALIZATION PRACTICE TIP PRACTICE TIP – Qualification is a defense Maslenjak v. United States, 137 S.Ct. 1918 (2017) 7 FDFCDC 151 Holding that “the Government must establish that an illegal act by the defendant played some role in her acquisition of citizenship” and that “Section 1425(a) is not a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained.” b. LPR – Lawful Permanent Resident or Green Card Holder i. Statutes: For the process, see 8 U.S.C. §§ 1151-59 ii. Lawful Permanent Resident (or Green Card Holders) are authorized to live and work in the US on a permanent basis BUT are subject to being removed from the US for violating certain laws.
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