Representing Self-Petitioners & U Visa Applicants With Criminal Convictions _______________

1. Representing Self-Petitioners & U Visa Applicants With Criminal Convictions _______________ ASISTA Webinar Presented By: Ann Benson & Gail Pendleton June 16, 2011 This project is supported by Grant No.2004-WT-AX-K071 awarded by the United States Department of Justice, Office on Violence Against Women. The opinions, findings, and recommendations expressed in this document are those of the author(s) and do not necessarily reflect the views of the United States Department of Justice, Office on Violence Against Women.

2. Getting Help On Your Case The Washington Defender Association’s Immigration Project is part of the ASISTA team and available to provide case analysis and problem solving to immigrant survivor advocates. To contact WDA’s Immigration Project for assistance email Jonathan Moore at jonathan@defensenet.org Ann Benson at defendimmigrants@aol.com. You can also call us at 206-623-4321.

3. Goals of Presentation Provide an overview of primary crime-related provisions of immigration law Outline key concepts in analyzing the immigration consequences of criminal convictions Apply this information to more effectively represent self-petitioners and U visa applicants with criminal issues.

4. Overview of Presentation Convictions & Sentences Under Immigration Law Criminal Grounds of Inadmissibility Criminal Grounds of Deportatibility The Aggravated Felony The Good Moral Character Bar The Categorical Analysis

5. Necessary Tools Immigration & Nationality Act (INA) a.k.a. Title 8 United States Code (USC) Copy of the criminal statute at issue; Copy of the criminal record of conviction; Access to immigration & crimes resources

6. Necessary Tools For assistance in obtaining the necessary criminal documents (plea agreement, charging document, judgement & sentence, police report) see: Step One In Representing Noncitizens With Criminal History: Obtaining Relevant Information About the Criminal Case, by Ann Benson, Asista Newsletter Winter 2008, available at www.asista.org

7. Necessary Tools Immigration & Crimes Resources WDA’s Immigration Project: www.defensenet.org Immigration Advocates Network: www.immigrationadvocates.org Defending Immigrant’s In the Ninth Circuit, by Kathy Brady et.al, and other materials from: The Immigrant Legal Resource Center www.ilrc.org Immigration Law and Crimes, by Dan Kesselbrenner and Lory Rosenberg National Immigration Project www.nationalimmigrationproject.org

8. Primary Crime-Related Provisions of Immigration Law Definition of Conviction & Sentence INA 101(a)(48);8 USC 1101(a)(48) Grounds of Inadmissibility INA 212(a)(2); 8 USC 1182(a)(2) Grounds of Deportability INA 237(a)(2); 8 USC 1227(a)(2) Aggravated Felony Definition INA 1101(a)(43);8 USC 1101(a)(43) Good Moral Character Bars INA 1101(f); 8 USC 1101(f)

9. Analyzing the Impact of A Conviction or Criminal Conduct • Does client have a conviction under INA §101(a)(48)(A)? • NO – does the conviction trigger any “conduct” based grounds? • YES – Determine sentence under INA 101(a)(48)(B). • Use categorical analysis and other tools to explore arguments that crime does not trigger immigration penalty. Existence of conviction vs. “nature” of conviction – e.g. not all assault convictions are CIMTs. • Identify possible waivers.

10. Convictions Under INA 101(A)(48)(A) Formal judgment of guilt by court, OR Deferred Adjudication = conviction if: Finding of guilt or Admission of guilt or Admission of Facts Sufficient to warrant finding of guilt AND Judge orders punishment or restraint Jail, $ Fine or Probation = restraint

11. Convictions Under INA 101(A)(48)(A) Deferred/Withheld Adjudications Often used in minor first-time offenses where defendant agrees to comply w/conditions for period and then case dismissed. These are convictions under immigration lawforever where deferral agreement requires admission or plea of guilt OR stipulation to “facts sufficient”. Even where successfully completed and dismissed Critical to get a copy of the deferral agreement.

12. Convictions Under INA 101(A)(48)(A) These DO NOT = convictions under 101(a)(48)(A): Juvenile disposition (in juvenile court); Conviction on direct appeal of right; Infractions (distinct from convictions b/c no jail time possible – e.g. speeding ticket).

13. Post Conviction Relief PCR “vacations” eliminate conviction if record shows granted due to underlying legal defect not just for immigration purposes Most state “expungements” do not eliminate conviction for immigration purposes PCR to modify sentence (e.g. 365 to 364) WILL be given effect (regardless of basis)

14. Convictions – Key Questions Do the applicable immigration provision(s) require a conviction? If so, based on the criminal records, does your client have a conviction under INA 101(a)(48)(A)?

15. Sentences Under Immigration Law INA 101(a)(48)(B) Includes the period of incarceration or confinement ordered by a court regardlessof any “suspension” of the imposition or execution of the sentence. Example: 365 days imposed with 364 days suspended = 365 for immigration purposes.

16. Sentences Under Immigration Law Certain misdemeanors with 365 day sentences = aggravated felonies (e.g. theft and assault). Exceptions: Certain Bars triggered by amount of time served regardless of actual sentence imposed Example: GMC bar where 180 days served Crimes Involving Moral Turpitude (CIMT) Inadmissibility Ground Petty Offense Exception Deportation Ground – 1 CIMT

17. Definition of SentenceINA 101(a)(48)(B) “Deferred Sentences” do not count if no actual time was imposed on judgment Review your state law re: deferred vs. suspended sentences Does not include any period of probation or community custody UNLESS imposed as condition of sentence or probation violation.

18. Sentences – Key Questions Determine actual “sentence imposed” (regardless of time suspended). Determine if possible crime-related immigration provisions are triggered due to the sentence. Example: Theft conviction is an aggravated felony IF one year sentence imposed.

19. Convictions & Sentences – Review Questions Angela is charged with misdemeanor theft. Would the following be a conviction? If so, what is her sentence? What additional information would you want? 12 month deferred adjudication agreement? Guilty plea with 12 month deferred sentence? Plea w/365 day sentence imposed with 364 days suspended (1 day to serve)?

20. Crime-Related Inadmissibility GroundsINA 212(a)(2); 8 USC 1182(a)(2) GENERALLY APPLY TO: Any noncitizen seeking entry to US Any noncitizen applying for lawful status When ICE /DHS seeks to remove/deport Undocumented persons who illegally entered US LPRs who apply for citizenship

21. Inadmissibility Grounds- INA §212 Apply to VAWA Self-Petitioners: • Filing of I-360 • Good moral character (GMC) bars incorporate most of the crime-related inadmissibility bars • Adjustment of status • Must prove not inadmissible under INA 212

22. Inadmissibility Grounds- INA §212 Apply to U Visa Applicants: • Filing of U Visa • Must prove not inadmissible under INA 212 • Filing of U Adjustment • INA 212 DOES NOT APPLY

23. Crimes Involving Moral Turpitude – CIMT Offenses INA 212(a)(2)(A)(i)(I) CIMT not defined – caselaw defines Generally conviction required Juvenile offense Exception - Committed before 18 AND 5 yrs before admission Petty Offense INA Exception - One CIMT offense Maximum possible sentence not > 1yr ; Actual sentence not > 6 months/180 days

24. CIMT Offenses • Practically, requires conviction to trigger • INA permits qualifying “admissions” to trigger, however: • Seldom invoked • Significant procedural requirements apply • Consult with experts before admitting to any non-conviction criminal activity

25. Controlled Substance Violations Drug defined under Controlled Substances Act (CSA) Applies to convictions (usual) and qualifying admissions (rare) Applies to attempt, conspiracy and foreign convictions Possible waiver for first-time simple possession of 30g or less marijuana (or lesser offense (e.g. possession of paraphernalia)

26. Multiple Convictions • INA 212(a)(2)(B • 2 or more convictions where aggregate sentence is 5 years or more • Only applies where TOTAL combined sentences = 5 years

27. Conduct-Based Inadmissibility Grounds No conviction required Reason to believe involvement in drug trafficking Drug must be listed in CSA Determined to have physical/mental disorder that poses threat; Determined to be drug abuser; Engaged in prostitution.

28. Reason to Believe-Drug Trafficking INA 212(a)(2)(c)(i) • Involved, aided, abetted, conspired, colluded in illicit drug trafficking • Drug listed in Controlled Substances Act • Knowing and conscious participation • Trafficking = remuneration • Lopez-Umanzor v. Gonzales, 405 F.3d 1049 (9th Cir. 2005)

29. RTB – Family Members INA 212(a)(2)(C)(ii) • Spouse, son/daughter of person inadmissible under (C)(i) • Obtained financial benefit from the illicit drug trafficking • Knew or reasonablyshould have known benefit was from illicit drug activity

30. Drug Abusers INA 212(a)(1)(A)(4) • Non-medical use of drug in CSA • No requirement that use result in physical or psychological addiction • Single use of marijuana/amphetamines OK • Only inadmissible if used w/in last 3 yrs

31. Engaged In Prostitution INA 212(a)(2)(D) • Applies to prostitute, procurer (pimp) but not customer (john) • “Engaged In” = continuity & regularity indicating pattern of behavior • See State Dept. Regulation – 22 CFR 40.24(b) • Sexual Intercourse for hire • One-time incident insufficient • Foreign prostitution where permissible triggers

32. 212(h) Crimes Waiver INA 212(h)(1)(C) - Only for self petitioners • DOES WAIVE: • CIMT offenses • Multiple criminal convictions • Prostitution • Controlled substances violation IF <30g mj • DOES NOT WAIVE others, including RTB • “Violent & Dangerous” offenses will require showing of extraordinary circumstances

33. U Visa Waiver INA 212(d)(14) – only for U visa applicants • Gives government discretion to waive ANY crime-related inadmissibility ground. • Must show “extraordinary circumstances” if crime was “violent or dangerous”.

34. Inadmissibility Review Questions Diana is a U Visa applicant. How will the following impact her? What additional information would you want to know? What would you do if it triggers a ground of inadmissibility? A misdemeanor theft conviction? A DV assault conviction? A conviction for attempted possession of cocaine?

35. Crime-Related Deportation Grounds INA 237(a)(2); 8 U.S.C. 1227(a)(2) Applies to remove noncitizens lawfully admitted: LPRs, CPRs, asylees and refugees; Nonimmigrant visa holders (even if expired) Approved U visa applicants Do not apply to I-360 & U visa applicants Bars eligibility for VAWA & 10 year cancellation Otherwise, inapplicable unless lawfully admitted Distinct from inadmissibility grounds Conviction required (one exception).

36. CIMT Offenses One CIMT – INA 237(a)(2)(A)(i) Committed w/in 5 years of admission Carry maximum POSSIBLE sentence of 1 year or more Two CIMTs – INA 237(a)(2)(A)(ii) Regardless of when committed or sentence Single scheme of conduct exception

37. Grounds of Deportability Aggravated Felony (see next section) Controlled substance violations Exception: single offense for simple possession of 30 grams or less Firearms convictions

38. DV & No Contact Order Violations Domestic Violence Convictions-INA 237(a)(2)(E)(i) After Sept. 30, 1996 Must be crime of violence per 8 USC 16 Committed against person (not property) w/whom Defendant has qualifying relationship Judicial “determination” of Protection/no contact order violation INA 237(a)(2)(E)(ii) No conviction required

39. Deportation Review Questions Cindy became an LPR in 1995. Last week she was convicted of drugs possession. How could it be possible that she would not be deportable? Would she be deportable if her conviction was for theft instead? What additional information would you need?

40. Aggravated Felony Definition INA 101(a)(43);8 USC 1101(a)(43) 21 provisions under definition incorporates hundreds of offenses Triggers harshest consequences Mandatory detention Permits expedited removal under INA 238(b) Ineligibility for many benefits/status Increased sentence for illegal reentry after deportation conviction

41. Aggravated Felony Definition • U Visa Applicants • AF definition does not apply at application • Will be basis for removal of approved U Visa applicant • But does not bar adjustment U adjustment. • Self-Petitioners • AF conviction is a GMC bar • Does not apply to S/P adjustment application.

42. Aggravated Felonies (AF) State classification irrelevant – misdemeanors can be AF E.g theft w/365 day sentence Highest priority for removal Conviction required Increases sentence enhancements in illegal reentry prosecutions

43. Selected AF Provisions Murder, rape, Sexual Abuse of a Minor Drug trafficking Firearms offenses Crimes of violence with one year sentence Regardless of any suspended sentence time

44. Selected AF Provisions Theft, Possession of stolen property, burglary with one year sentence imposed (365 days) Regardless of suspended time Crimes of fraud or deceit where loss = $10k or more Failure to appear Attempt or conspiracy to commit listed AF

45. Aggravated Felonies – Review Questions Are the following convictions AF: Misdemeanor assault w/365 day sentence? Felony Assault with 6 month sentence? Theft with 365 day sentence where 364 days is suspended? Burglary with 12 month sentence? DUI with 365 day sentence? Vehicular Homicide with 3 year sentence? Statutory rape (sex w/minor)? Possession of a controlled substance?

46. Selected Good Moral Character Bars (GMC) INA §101(f); 8 USC 1101(f) 101(f)3 – incorporates the crime-related grounds of inadmissibility at INA §212(2) 101(f)(7) - Confined to jail for 180 days or more (aggregated/total) 101(f)(8) - Aggravated felony convictions

47. GMC & Self-Petitions, U Visas • GMC does not apply to U Visa applicants • Will bar GMC for I-360 Applicants • INA 204(C)(a)(1) Waiver • Waives any GMC bar that is othewise “waivable” • Does not waive AF • Check to see if AF crime is also a CIMT waivable under 212(h) • Will waive RTB inadmissibility ground • But RTB inadmissibility will be triggered at adjustment • Must show connection between crime & abuse

48. GMC, Crimes & Self-Petitions Consult CIS GMC Memo – 1/19/05 Memo advises reference to 8 CFR 212.7(d) where conviction is for violent or dangerous offense Memo asserts any aggravated felony is per se bar to GMC b/c no waiver available BUT for those convictions that are agg felonies AND CIMT (e.g. theft conviction w/365 day sentence) argue that as CIMT, offense is waivable per 212(h)

49. Analysis of Crimes • Existence of conviction does not determine the “nature” of the conviction for immigration purposes. • Nature of conviction – whether or not it can be classified as a particular crime (CIMT, crime of violence) under the INA.

50. Categorical Analysis Analytical Process sanctioned by US Supreme Court to determine the nature of the conviction. Used by ICE/CIS/Immigration Courts. Determines whether elements required for conviction under state/federal criminal statute sufficiently match the elements of the relevant crime-related immigration provision. Example: Is this assault conviction “crime of violence” under the AF or DV deportation ground?