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Problems facing Non-Citizens in Court

This presentation explores critical legal issues non-citizens face in court, particularly in light of immigration consequences linked to criminal convictions. It dives into the Padilla case, clarifying the obligations of attorneys to advise their clients accurately about potential immigration repercussions. Key topics include understanding aggravated felonies, inadmissibility, deportability, and the complexities around crimes involving moral turpitude. Additionally, civil court challenges such as custody disputes, child support, and protection orders affecting non-citizens are discussed. This guide emphasizes the necessity of consulting immigration attorneys when legal troubles arise.

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Problems facing Non-Citizens in Court

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Presentation Transcript

  1. Problems facing Non-Citizens in Court Presented by: Mira Mdivani Angela Williams Stephen Blower

  2. Part I: Cr-immigration: How to Comply with Padilla without Losing Your Mind!

  3. What does Padilla Say? • Padilla was an LPR • Veteran • Many many years in US • Charged with possession with intent to distribute a boat load of pot • Lawyer advised (incorrectly) that since he was a vet and had been here so long, he would not have any problems • Main opinion: When the consequence is clear the advice needs to be equally clear. When the consequence is less clear one only need advise that there may be consequences • Concurrence: Wanted to limit it to affirmative mis-advice • Dissent: This is a collateral consequence, therefore even wrong advice is not IAC

  4. Clear Consequences…(sort of) • Aggravated Felony (8 USC § 1101(a)(43)) • Inadmissible Crime (INA § 212(a)(2)(A)) (Cant get into the US) • Deportable Crime (INA § 237(a)(2)(A)) (Kicks you out)

  5. Step 1: Are you a US Citizen?

  6. Are you a Naturalized USC?

  7. Step 2: As Clear as it Gets • Is it an Aggravated felony? § 101 (43)(a) • Is it in the inadmissibility section? § 212(a)(2)(A) • Is is in the Deportation section?§ 237(a)(2)(A) • If it looks like a duck…

  8. Warnings Agg Felon: This conviction will…

  9. Warnings for inadmissibility

  10. Warnings for Deportability

  11. What is not Clear: CIMTs and COV • CIMTs= Crimes involving moral turpitude • Extremely difficult to determine; depends on wording of statute • Base, vile and depraved and violates acceptable moral standards. • More than negligence • Must have specific intent (maybe reckless) • COV= Crimes of violence • Can avoid this if sentence is less than a year. • If not, if it is in the ball park of force or violence or something from which violence is likely to occur, maybe a problem

  12. CLEAR AS MUD Warnings: There may be serious immigrationconsequences to this conviction, you should seek advice of an immigration attorney

  13. Other Cr-immigration Problems • Drug Convictions: Only exception for less than 30g of MJ= Must state the amount and must state the drug in sentencing • Any other drug = BAD • Any mention of trafficking= Bad • In sentencing: the wording of the statement of facts and what is said on the record is important • Sentences • SIS, SES, Expunged records, No Contest, Alfrord Pleas, juvenile adjudications, setting aside the guilty plea or vacating the plea all can cause problems • Diversions or pre-trial adjudications can cause problems if you admit to the essential elements of the crime • Actual times served usually doesn’t matter it is the sentence imposed that is important

  14. One more thing….. Chaidez vs. US (no. 11-820 Feb. 20, 2013) Padilla not Retroactive

  15. Part II: Civil CourtThe Landmines Continue

  16. Non-Criminal Issues for Non Citizens in Court • Orders of protection (or violations of them) & Civil Contempt • Divorce or annulment : Before petition is approved, continued obligation under affidavit of support • Child Custody and International Kidnapping • Child Support failure to pay child support • Abused abandoned or neglected undocumented kids • Guardianships

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