IMMIGRATION LAW for Criminal and Civil Practice

IMMIGRATION LAWfor Criminal and Civil Practice Susan I. Nelson Williamson County Bar Association September 26, 2014

DROP THE I-WORD • The “I” word presumes someone is guilty of illegal entry into the U.S.

DROP THE I-WORD • Use of the I-word affects attitudes toward immigrants and non-immigrants alike, including people of color. • The racially discriminatory message is not explicit, but hidden or “coded.” • The term has deliberately been made popular in the media by anti-immigrant factions.

DROP THE I-WORD ALTERNATIVES: • DREAMer (young people raised and educated in the U.S.) • IMMIGRANT • UNDOCUMENTED IMMIGRANT • UNAUTHORIZED IMMIGRANT

IMMIGRATION CLASSIFICATIONS • U.S. Citizen • Immigrant • Nonimmigrant • Undocumented

U.S. Citizens • Born in the U.S.A. • Naturalized • Derived from U.S.C. parent

U.S. Citizens

Legal Permanent Resident • “Green card” holder • May live, work and travel in the U.S. • May not vote • Can be deported for criminal or other grounds

Nonimmigrant • Visitor • Student • Temporary workers

Undocumented • Visa overstay • Entered without inspection • avoided border check points • No lawful status • Entered through border check point but did not have visa or permission to enter

PATHS TO LPR STATUS • Family Based Visas • Employer Based Visas • Victim Visas • Asylum

VICTIM VISAS • Crime victims • Trafficking victims • Law enforcement agency must sign document affirming cooperation for Immigration • Provides a path to LPR • VAWA: Family violence victims who are married to/children of USC/LPR

CRIMMIGRATION LAW Padilla v. Kentucky, 559 U.S. 356 (2010)

The Padilla Rule • The Sixth Amendment requires that “counsel must inform her client whether his plea carries a risk of deportation.” Id. at 374. • Criminal counsel has the duty to investigate and advise about immigration consequences

Padilla’s Classifications • Is the relevant immigration statute “succinct, clear and explicit”? • Y = counsel must advise the non-citizen defendant of the specific immigration consequences • N = counsel has duty to advise that the plea might carry adverse immigration consequences

Padilla’s Classifications • Relevant immigration statute “succinct, clear and explicit:” • Aggravated robbery = CIMT, Ag.F if sentence of >1 year • DWI ≠ CIMT, Ag. F (But watch for clients with multiple convictions where aggregated sentences >5 years)

Padilla Not Retroactive • Does not apply retroactively to cases already final prior to the Padilla case. Chaidez v. United States, 133 S.Ct. 1103, 1113 (2013)

Conviction • A formal judgment of guilt entered by the court OR • If adjudication of guilt withheld where: • A judge or jury has found the noncitizen guilty or the noncitizen has entered a plea of guilty or nolo contedere 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 noncitizens liberty to be imposed.

Conviction • Texas Deferred adjudication = conviction • A court-ordered drug treatment or domestic violence counselling alternative = conviction IF guilty plea is taken • Sentence includes any suspended sentence • Juvenile adjudication ≠ conviction IF analogous to a federal juvenile delinquency adjudication

Undocumented Clients • Conviction will most likely result in removal proceedings • EXC: DACA eligible • Will the plea • disqualify client from relief from removal? • result in your client being detained?

Lawfully Present • Will the plea: • result in client being placed in deportation proceedings? • disqualify client from relief from deportation? • result in your client being detained? • Will the client be able to leave and return to the U.S.? • Will the client be able to Naturalize?

Aggravated Felony • Defined under 8 USC §1101(a)(43) • Murder, rape, sexual assault of a minor, drug trafficking, firearm trafficking … • Crime of violence, theft or burglary where sentence is “at least 1 year” • Fraud or tax evasion where loss to victim >$10,000 • Can be a misdemeanor

Controlled Substances • Violation of any law or regulation of a state, the US or a foreign country related to a controlled substance as defined in §102 of the Controlled Substance Act • EXC: single offense of simple possession of 30g or less of marijuana • May also be an Aggravated Felony, CIMT

Crimes of Moral Turpitude • Not defined by statute • Crimes that are inherently evil or wrong • Eg., theft, fraud, serious violence, most sex offenses • Petty Offense Exception: 1 CIMT, offense not punishable by >1 year, not sentenced to >6 months

Crimes of Domestic Violence • Texas Penal Code §22.01(a)(1) is not a crime of violence because it can be committed recklessly. United States v. Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006) • Record of conviction important • May be COV/CIMT if conduct intentional, knowing

Firearms • Convicted at any time after admission under any law of purchasing, selling, offering for sale, exchanging, using, owning or possession of a weapon, firearm or destructive device • Ground of deportability • NOT a ground of inadmissibility BUT may result in discretionary denial

Firearms • U.S. v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011) • Federal statute prohibits aliens from possessing firearms. 18 U.S.C. 922(g)(5) • Protections contained in Second Amendment do not extend to aliens illegally present in the United States. Id. at 442.

ICE Holds • Undocumented • Lawfully present charged with deportable offense • Hold can be dropped prior to release in some circumstances • ICE issues detainer and takes custody within 48 hours after release from local authorities

ICE Custody REMOVAL Release on OR Set bond and transfer to detention Refuse to set bond and transfer to detention NO REMOVAL • USC • LPR w/o conviction • Exercise of prosecutorial discretion • Eg., DACA

ICE Detention/Bond • Transferred to ICE detention facility • Bond paid at ICE District Office (eg., San Antonio) • If no bond or too high, can ask Immigration Court to lower bond • Mandatory detention = must stay in custody

FAMILY LAW ISSUES

Termination of Parental Rights • In re E.N.C., 384 S.W.3d 796 (Tex. 2012) • Father convicted in another state of unlawful conduct with a minor and given probation years before the children were born was later deported to Mexico. • No evidence concerning the offense nor the circumstances of deportation offered.

Termination of Parental Rights • Trial court terminated father’s rights based on criminal record and deportation. Id. at 801. • A divided Texarkana Court of Appeals, affirmed finding that while the father’s deportation alone could not support the trial court’s findings, his conduct that led to deportation did support the judgment. Id. at 801-802.

Termination of Parental Rights • Supreme Court reversed, holding that the evidence was legally insufficient to support termination. • “[D]eportation, like incarceration, is a factor that may be considered (albeit an insufficient one in and of itself to establish endangerment), its relevance to endangerment depends on the circumstances.” Id. at 805.

Termination of Parental Rights • “[N]o reasonable fact-finder could have formed a firm belief or conviction that the termination of Francisco’s parental rights was in the children’s best interest.” Id. at 809. • The Department never assessed father’s situation in Mexico, and there was a lack of evidence establishing the instability of the father’s home in Mexico. Id. at 808.

Custody • Custody of Children in Mixed Status Families: Preventing the Misunderstanding and Misuse of Immigration Status in State Court Custody Proceedings, 47 Family Law Quarterly 191 (Summer 2013) • National Immigrant Women’s Advocacy Project (NIWAP) http://niwaplibrary.wcl.american.edu/

Custody • “[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” In re E.N.C. at 806. • “[O]verriding presumption that the … best interests of the child are served by reuniting the child with his or her parent.” In re Angelica L., 767 N.W.2d 74, 94 (Neb. 2009)

Family Abuse • Immigration status exacerbates the level of violence in abusive relationships when batterers use the threat of deportation and control of information about legal status to lock their spouses and children in violent relationships.

Family Abuse • Victims afraid to report abuse, leave, unable to support self and children. • May be eligible for VAWA, U or T visas. • Immigrant detainees may have children placed with the abuser while in detention.

Marriage • USCs and LPRs can petition for their spouses to receive LPR status. • The marriage must be valid in the jurisdiction where it was contracted. • Step-children where marriage occurred prior to 18th birthday • Some stand to lose immigration benefits if they marry (eg., son or daughter of LPR)

Divorce • No longer eligible for petitions based on marriage relationship • EXC: VAWA • Affidavit of Support obligations continue after divorce

Adoption • Non-citizen children adopted prior to 16th birthday qualify as child under immigration law (under 18 if younger siblings adopted) • Must be in physical and legal custody of adoptive parents for 2 years prior to filing. • EXC: VAWA (abused children)

CIVIL LAW ISSUES

Immigration Status • TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 245 (Tex. 2010) • Evidence impugning character based on immigration status = Harmful error • Evidence admitted of driver/employee’s: • Prior deportation • Fake social security number • Lied to obtain a commercial DL

Immigration Status • Plaintiff argued that the evidence of driver/employee’s immigration status was relevant to issues of negligent hiring, negligent entrustment and for impeachment evidence. • Employer complained that the evidence was not relevant to any issue in the case BUT was highly prejudicial.

Immigration Status • Court concluded that neither immigration status nor use of a fake SS# to obtain commercial DL caused the collision. • Not admissible as impeachment evidence. • “[I]ts prejudice far outweighed any probative value, but also because it fostered the impression that [the employer] should be held liable because it hired an illegal immigrant.” Id.

Immigration Status • Justice Medina: “Such appeals to racial and ethnic prejudices, whether ‘explicit and brazen’ or ‘veiled and subtle,’ cannot be tolerated because they undermine the very basis of our judicial process.” Id.

Immigration Status • Tyson Foods v. Guzman, 116 S.W.3d 233, 247 (Tex. App.--Tyler 2003) • Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity.

Immigration Status • Republic Waste Services, Ltd. V. Martinez, 335 S.W.3d 401 (Tex. App.--Houston [1st Dist.] 2011) • Trial court excluded evidence of decedent’s lack of immigration status • Employer argued that the decedent may have been deported and that it was relevant to his future earnings. • Houston court affirmed trial court ruling.

Unlicensed Drivers • Williams v. Steves Industries, Inc., 699 S.W.2d 570 (Tex. 1985) • The fact that a driver is unlicensed does not determine that the driver is in fact incompetent.

IMMIGRATION LAW for Criminal and Civil Practice