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Immigration Consequences of Criminal Activity

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Immigration Consequences of Criminal Activity

Very few, if any, areas of law possess the high levels of complexity and consequences as the analysis of, and response to, the collateral immigration consequences of criminal activity. When counseling non-citizens who have interacted with law enforcement, attorneys must consider a wide range of potential effects. What pleadings or sentences put their client on the radar of U.S. Immigration and Customs Enforcement (“ICE”)? What will be the likelihood of ICE detention? Will the client become inadmissible to or deportable from the U.S? How will the potential immigration claims be affected—both affirmative and/or defensive? What about the ability to safely travel? Similarly, attorneys must know how to apply the appropriate analysis to outline all of the potential scenarios before the U.S. Department of Homeland Security or the Immigration Courts, and the risks and benefits attendant to each. This course will provide an overview of the main immigration consequences of criminal activity, including what you should look for and how to proceed from the initial consultation.

Transcript

Hello, and welcome to the Continuing Legal Education Course, Immigration Consequences of Criminal Activity. My name is Matthew Blaisdell, and I'm a general immigration practitioner here in Brooklyn, New York. And what we're gonna do today is identify the relevant information and documentation when consulting with a non-citizen charged with criminal activity. We're gonna review the potential immigration consequences of that activity, understand the analysis required to determine which of those consequences might apply, and how. And lastly, recognize potential defenses to protect them from the consequences of that activity. So getting started, what do you need to know when walking into that first consultation or when the criminal defense attorney reaches out to you? What information do you need to get rolling here? Starting with this slide, I advise make a checklist with these broad categories here and start to build it out with the information on the slides to follow. And the threshold questions to address here are what status is your client? What charged conduct might be relevant? What are the possible immigration consequences? And then what are the defenses including waivers and or applications for benefits or relief? So these are the topics we're gonna cover here and everything will build on these points going forward. Now, the information and documentation, threshold facts and considerations before you initiate research and actions will include the individual status, whether or not they were convicted by the court, in which case I mean a judgment of guilt was entered. Or whether they merely admitted to the essential elements without a finding of guilt. How many convictions? The type of crime charge or convicted of. For example, crimes involving violence, fraud, drugs, theft, et cetera. What is the potential sentence from the charges and the actual sentence imposed by the judge? And practical factors. Will they be detained? What happens if they travel and attempt to reenter the United States? And will they be precluded from any kind of immigration benefit in the future depending on whether they're found to have actually committed these offenses? So what type of interactions are we looking at? So when I say collateral consequences of criminal activity, what sort of activity? So we're looking at anything. Immigration casts as wide a net as possible. These might include any interaction with law enforcement such as a summons, showing up for a ticket, maybe they didn't even need to get fingerprinted. That kind of basic interaction with an officer might trigger the type of inquiry that you're gonna need to perform here. Desk appearances, tickets, anytime they were booked, printed, had a ticket issued. Released even before they were arraigned or actually arrested. And here's how to ask the questions of your client. You're gonna wanna ask them if they've been arrested, stopped by an officer, taken to a precinct, been given a ticket, placed in the back of a police car, placed in handcuffs. Did they ever see a judge, appear in court? Have they been the subject of a call to police? Any kind of creative way that you can get at did they interact with any kind of enforcement official at all? And here's the documents that you'll need. You're gonna wanna try to obtain their visas or any other documentation related to their entry such as an I-94, which can be found online. Just Google I-94 CBP and you'll go to a website where you'll basically just need their passport information. That's for legal entries. You'll want to look for the record of conviction. You can right now, Google the phrase shepherd documents, but we'll define it in the next couple of slides as well. And you'll want to know about any other arrest or encounters with criminal enforcement from any jurisdiction, whether it's local, state, or federal. So you can get the state rap sheet. And you can also, with their fingerprints, order their FBI records, which is now a fair bit easier than it has been in the past. So I mentioned something called the shepherd documents. What are those? As mentioned, that will include the record of conviction. It will include all charging documents, the written plea agreement, transcript of the plea colloquy, any explicit findings to which the defendant assented. So if the non-citizen was in court or made some kind of official statement regarding whether or not they performed any kind of action. Doesn't need to be in the actual disposition as long as it's in the record. That's something you're going to want to know. Could be determinative. And lastly, obviously the dispositions. The documents establishing whether, in fact, there was an order of guilt from the court. Nolle prosecution letters. Basically the statements of no prosecution. Any criminal defense attorney will be very familiar with every single one of these. And that's really what you need to know for a consultation from the client to get you started. Now we're gonna get to the types of research that you're going to need to engage in. Starting with the status of your client. Now, if you're designing a flow chart it's gonna go in two different directions from here. Grounds of consequences that stem from inadmissibility and the grounds of removability. This consideration will determine everything else going forward from here. And these are a constant source of legal debate and change. Whether or not they were inspected and admitted is the threshold determination. That's defined several places in the law. But we're gonna start here with 8 USC section 1227, or Immigration Nationality Act section 237 and 212. So people who are legally admitted obviously includes lawful permanent residents or green card holders, and non-immigrants. These are people who are admitted in some temporary status, usually some kind of temporary visit visa. Like visitor, student, employee, et cetera. This does not include people who were not legally admitted or otherwise quote, applying for admission. A term of legal art. And this would include asylums and refugees and those who are in kind of what I would call a quasi status. So deferred action such as DACA, people who were paroled such as like in the United for Ukraine, that's considered to be a form of parole. Another form of parole you'll see quite often is for family of US military members. That's something you can apply for from ICE for all in place. And those in say, temporary protected status. Which is a form of humanitarian relief accorded to those who quite often have not, in fact, entered lawfully. And lastly, people with no status whatsoever, have never been admitted. So this is the threshold determination. The case is gonna go face one set of charges or it's gonna face another set of charges. What else do you need to know to start your research? Well one of the considerations is by virtue of conviction, where they, in fact, actually ordered convicted by a court? So these are categories of consequences that require an actual court order finding guilt. So for example, controlled substance offenses. That's a category of consequences that require a conviction for just about anything involving a controlled substance unless it's under 30 grams of marijuana. Crimes involving moral turpitude. And this is a category of crime if you commit it within five years of admission for which a sentence of one year may be imposed. It's also relevant if they've committed two crimes involving moral turpitude at any time after admission, not arriving out of a single scheme. So typically these are for people who are arrested more than once and convicted more than once. Crimes involving firearms or destructive devices typically require a conviction. Crimes of domestic violence typically require a conviction. As do the category of crimes called an aggravated felony. And we'll define these categories in some detail in just a bit. But for now, the point is, if your client was actually ordered convicted by a court, come back to this slide and reference these categories. These are the categories of consequences that are going to be at play. Next we're going to consider consequences triggered when there's more than one conviction. So number of convictions is also relevant. For example, two convictions of any type of crime that include an aggregate sentence of more than five years. Also two convictions involving a crime of moral turpitude at any point in time. And if you're applying for citizenship specifically, you need to know if there's been two offenses of any type that had the aggregate sentence of five years referenced above. But this is exclusive to naturalization or to gambling offenses. Also exclusive to naturalization. So if you have client applying for citizenship and they've been convicted of more than one crime, these are the ones we're looking at. Now we're gonna move on to the potential consequences. You have the information you need to know at the broadest outlines of where to go in your research. Now here is the information you need to know to understand the consequences that your client might be facing. So these are the major categories. Crimes involving moral turpitude. Pretty much every single one of these categories merits its own course. We can only go into a small amount of detail here. But for now we're gonna define CIMT in the broadest outlines. It has its own definition, but it often overlaps with other criminal categories as well, which we'll touch upon. This typically includes intentional acts. If I was gonna get assigned one bullet to defining what a CIMT is, it's typically stuff like this, theft, fraud, violence, financial crimes, sex offense, typically requiring a culpable mental state and reprehensible conduct as viewed by a contemporary moral standards. And it's exactly that clear and you need to be familiar with the case law regarding local convictions. So it's gonna change state by state, which is why this is an area of tremendous specialization. More on CIMTS Again, they require a culpable mental state and they typically do not include regulatory such as strict liability offenses. Basically stuff that you can get convicted for based on negligence or recklessness. Such as DWI or simple possession. Okay, crimes that lie on the border might be violations of an order of protection, child abuse, neglect, abandonment, simple battery or assault. Typically not CIMTs, but it really def depends on how the jurisdiction defines the offense and what's required for a finding of guilt in that particular city or state. Now exceptions. So say you somebody commits an offense that meets each of those bullets that I've described above, there are a few exceptions, one being the petty offense. So that's any conviction for which the maximum possible penalty is not over one year and the actual sentence imposed is not over six months. So a number of states have, for example, passed legislation in the last few years limiting the possible sentence for certain crimes, most of misdemeanors, to 365 days. And why did they do that? Typically one of the big reasons that they limited the max sentence for misdemeanors to 365 days is for this reason. 'Cause anything over that, 366 days, might trigger finding of a CIMT. Also, youthful offenders have an exception if they were 18 years old at the time and both the commission and their release from jail occurred over five years from the time that they made their application for an immigration benefit. And lastly, political offenses for foreign convictions. So people who are maybe protesting human rights, activists, et cetera, who were arrested for this kind of activity in their home country. This typically is not included within the definition of a crime involving moral turpitude. Another ground of consequences, which I consider to be the immigration death sentence, would be an aggravated felony. So again, like a CIMT that has it's own definition, but it may overlap with other grounds as well. Including a controlled substance offense, shorthand CSO, and separately reason to believe that an individual is involved in drug trafficking. Separate category firearms or destructive device offenses. Crimes involving domestic violence which include stalking and violations of an order of protection. Significant misdemeanors, legal term of art, and many others. So these are their own separate standalone categories of consequences, but they frequently overlap with each other. Now we're gonna touch on the grounds of removability. We talked about the flowchart going in two different directions here. We just described the categories. Now we're gonna talk the first of those two different directions, grounds of removability versus grounds of inadmissibility. We're gonna talk about the very first one here, grounds of removability. This depends on whether or not somebody was considered to be legally admitted. If they were legally admitted, this is the section of law that you're gonna look at, INA section 237. Now the definition of whether or not they were admitted was at INA 101 13 subsections A through C. You can also look at INA section 245 which looks at the definition within the status within the context of people applying for adjustment of status. But for now, just know that this includes people who had lawfully entered after being inspected and admitted. It does not include lawful permanent residents at a port of entry or people who entered without inspection. So basically if you had a green card and you are coming back into the United States through customs, that is not considered to be an inspection admission. You are a lawful permanent resident applying for admission and it doesn't involve people without status who entered unlawfully. Now, the emphasis here is convictions, not commissions. So if we're looking at the grounds of removability for people who are legally admitted, what's most relevant is whether they were actually found convicted by a court rather than whether or not they were just found to have committed the activity. The latter is more relevant for the grounds of inadmissibility. If we're talking about removability, the burden is on the government to establish this. So if your client entered lawfully, it is on the government to show that they are removable from the United States. And there's a few very narrow distinctions here. For example, a controlled substance offense. If somebody was arrested for under 30 grams or convicted of possessing under 30 grams of marijuana for personal use, that is an exception of the grounds of removability for controlled substance offense. It is not, there is no corollary exception under the grounds of inadmissibility. That requires a waiver. Now, returning to the topic of crimes involving moral turpitude, that's a category that's approached differently under the grounds of removability versus inadmissibility. For example, it is a ground of removability if committed within five years of entering the United States and punishable by up to one year of imprisonment. And that five year clock begins with literal entries, not legal entries. Again, legal term of art. There's a ground for those who have committed two CIMTs at any time after admission, not arising from a single scheme of events as mentioned before. Typically involving different arrests on different occasions for different charges. And lastly, you're gonna wanna look at INA section 101 which is where they define moral character, good moral character. For purposes of a crime involving moral turpitude that will affect individuals differently if they're applying for naturalization or applying for post-hearing voluntary departure, which is a relief that you can apply for in immigration court. So these apply only to people who are lawfully admitted. Controlled substance offenses are treated somewhat differently under the grounds of removability. These would include a violation of any state or federal regulation related to a federally controlled substance. Again, a very broad net and something meriting its own training. This does not include under the grounds of removability a single offense involving possession for personal use of 30 grams or less of marijuana. So just as mentioned before, treated differently if lawfully admitted versus not lawfully admitted. Crimes involving domestic violence are treated differently. Rather than go through each one of these right here, just know that there's a lot of case law on this topic. Including a lot of decisions from the Supreme Court of the United States within the last few years. Same for crime of violence. And basically skip down to the bullet that says can go beyond criminal court record. Anything goes here in terms of evidence that may be submitted by or considered by the Department of Homeland Security. So again, be familiar with the case law. It's constantly changing on these topics. Firearms offenses are treated differently. They require an actual conviction. So remember we talked about the virtue of whether or not convicted. This is one example of that. It has to be a finding of guilt from the court in order to trigger the consequences for a firearms defense. And you'll see in the last couple bullets this is activity that describes both a firearms offense and an aggravated felony. So if there's a finding of guilt that involves these facts, you're looking at two potential grounds of removability for your client. Alien smuggling. Now this is something that typically comes up at embassies though sometimes during green card interviews. And you will look at the second bullet there. This is the one that really is the trigger here. Often includes parents bringing their children into the United States. Whether they did it separately or together, you want to be very careful in conducting an intake with your client to determine whether or not they facilitated the entry of their child or other family member into the United States. Typically this includes people who are crossing the border, sending a family member through with coyotes or something like that. This typically comes up, again, when people are attending their visa interview at a US embassy overseas. Mexico is a really big one, they always look for this, but it comes up in other countries as well. Fraud is a big one. The big bullet here is this one at the bottom, INA section 247 D. That's one you're gonna always wanna look out for. Anytime someone's altered a document, very big immigration consequences to that. And we're gonna quickly move through a few others. Failure to register as a sex offender is a separate ground of removability. You'll frequently hear immigration attorneys refer to the Adam Walsh Act and this is the context. I'm not gonna go into detail here, just know that exists. Google Adam Walsh Act, immigration or the section INA 237 . Now grounds without corollary in the grounds of inadmissibility. So these are consequences of criminal activity that apply to those who have been legally admitted, but not to those who have not been admitted. So high speed flight, that's a ground of removability but not a ground of inadmissibility. As is failure to register as a sex offender, firearms offenses, crimes involving domestic violence, and a few others you'll see here at the bottom. So if your client has not been legally admitted to the United States, these categories of offenses are much less relevant. Interesting. And with that we are going to move to the other ground. So again, going back to the flow chart. We just went in one direction with the grounds of removability. Now we're going to go to the other, grounds of inadmissibility under INA section 212. This includes those who are not legally admitted, maybe those who have been admitted but are applying for particular status. It includes, again, permanent residence at a port of entry, people with green cards kind of going through customs. And what's relevant here is commissions and not convictions. So the grounds of inadmissibility can be triggered by those who have not been convicted by a court, but who have been found to have committed the criminal acts. So different definitions apply in different circumstances. Here the important thing is, you see the second to last bullet, the burden here is on the non-citizen to establish their eligibility for admission. So the assumption might be that they are not eligible for the benefit, whether it's a green card or non-immigrant visa. It's their job to show that they're eligible for that and therefore it's their job to show that the ground of admissibility does not apply. And as mentioned in the last section for possession of under 30 grams for personal use of marijuana, there is no categorical exception in the grounds of inadmissibility, but there is a waiver available. Also treated differently under section 212 grounds of inadmissibility is convictions for a crime involving moral turpitude. So a CIMT at any time can trigger the grounds of inadmissibility. And again, conviction is not required just at admission to the essential elements. So if your client says, yes, I wasn't convicted of this but I did do the bad thing, that might be enough to count as a conviction for purposes of the grounds of inadmissibility. And as with the last category, there are some exceptions here. They might have done the bad thing but they're still able to avoid the ground if it was just once and it was not punishable by over one year and it did not involve an actual prison sentence of over six months. That will help someone avoid the ground of inadmissibility for a CIMT. Okay, so those are the two major directions. Now what we need to know is what are the consequences? And we're gonna start with aggravated felonies. Again, I referred to this as immigration death sentence, it was created in 1990 and it is not retroactive. So the consequences will not apply to someone who was convicted of this activity before November 29th, 1990. It may include state misdemeanors, so don't get too wrapped up in the word felony and aggravated felonies. An aggravated felony may include certain state misdemeanors. It is a separate ground for removal. It's a ground of inadmissibility following removal. So if your client committed the crime here, they got deported, they're trying to come back into the United States, they are now facing a ground of inadmissibility. And most waivers and defenses are not available for those found, then convicted of an aggravated felony. Hence the immigration death sentence. Types of aggravated felonies can be found at section 101 43 starting with A and then going all the way to U. So there's all these different grounds of aggravated felonies and rather than read through them, I'm gonna tell you the ones that come up the most often. Which would be B, drug trafficking, F, crime of violence, G, theft or burglary, M, fraud or deceit with a loss of over $10,000. And again, alien smuggling something that usually comes up at the embassy as is O for unlawful entry by someone previously removed. So that's gonna be someone in the in admissibility context applying for admission. And lastly, just be aware, this doesn't come out that often, but conspiracy to commit an aggravated felony is considered to be an aggravated felony. Moving on two controlled substance offenses. This is defined as violation of any state or federal regulation relating to a federally controlled substance. The same definition as under the grounds of removability. An individual may apply for a waiver under INA section 212 for this type of offense only if it was for a single offense involving marijuana personal use under 30 grams. Again, this is the waiver we referred to earlier. Whether or not this extends to paraphernalia is an open question. Depends on the jurisdiction and the statute of conviction. What is a reason to believe that the individual was involved in drug trafficking? So you can trigger the consequences of a CSO even if you weren't convicted. That's what reason to believe means. And it includes family members. So if you have an immediate family member who may have obtained financial gain or any other benefit in the last five years from drug trafficking, this ground might, in fact, apply to you as well. Money laundering. The thing to know here is that it also includes reason to believe and abetting and conspiring. not one that comes up very often. Another ground of admissibility is what's called a significant misdemeanor. This applies only in the context of someone applying for deferred action for childhood arrivals under that program frequently referred to as DACA. And the requirements for a finding of significant misdemeanor are found here. It could include convictions for any of these things. So even if it's not considered a ground of removability or inadmissibility generally, it could be triggered in this context for people applying for DACA. And lastly, there are grounds of inadmissibility that do not have a corollary ground of removability. I'm gonna include those here. And this is not a comprehensive list, just know that if your client has possibly implicated any of these types of activity, you need to consider whether or not you are looking at a situation in which they'll be applying for inadmissibility. So if they've legally entered the United States, this does not apply. Okay, and now we're going to look at collateral issues. So these are consequences that do not include a ground of removability or inadmissibility. Such as does the criminal activity trigger what's called mandatory detention? Very much worth your time to look at INA, section 236 . And there are a couple flow charts floating around regarding different types of activity that trigger mandatory detention. And I'm gonna list a few of them here. All factors to consider when determining whether your client might be charged with mandatory detention. The important word here is mandatory. If any of this stuff happens, your client must be detained by ICE. There is no discretion. So you need to be very much aware of whether any of this activity might possibly apply to your client. Because if it does, they will, in fact, be detained. Other collateral issues, aside from mandatory detention include activity related to travel and re-entry following a legal admission. So for instance, somebody was admitted, obtained a green card, left the United States and are returning. This happens all the time. Once they're going through customs, the individuals at customs and border protection will be aware of their convictions and therefore your client might for the very first time be encountering the immigration consequences of that activity. Example, people who came here at a very young age, obtained green cards perhaps through their parent as a child, were convicted of something in their teens or early twenties, was never picked up by ICE, they never thought twice about it and then they left the country. On the way back in, now CBP has them. So as I say there, customs and ports of entry are good places for CBP to pull them aside. Whether or not somebody has triggered a ground of removability or inadmissibility is relevant for future benefits or status. And as a note, those who may have been found to engage in drug trafficking or drug use may be subject to other immigration penalties outside of the grounds of inadmissibility and removability. Okay, that was the easy stuff. Now we're going to get to the harder stuff, potential protections. What are your defenses if your client was found to have engaged in any of these activities? The first possible defense to consider is whether or not your client was actually convicted. So what is a conviction? It's either a formal judgment of guilt entered by a court or a pleading or finding that your client actually did the thing coupled with some form of restraint on their liberty. So what am I talking about here? I'm talking about someone who pleaded no contest, or maybe there was a finding of guilt but not a actual court order. But it might include someone who just pleaded to the facts, which comes up quite often. If you admit to the crime, they'll just dismiss the case and typically order some form of punishment. That would be a conviction for immigration purposes. And form of punishment could include say, having to take classes, community service, et cetera. Any kind of restraint on your person's liberty. And the documentary requirements for proof of conviction. What can ICE produce to show that your client was convicted of any of these things that can be found here in the federal regulations at 8 CFR 1003.41 and under INA section 240 . Furthermore, a conviction typically does not include expungement, dismissals, cancellations, vacaters based on the legal or constitutional defect or discharges. But this is not black and white. There's a tremendous amount of case law involved in what counts as a conviction or not. Typically post-conviction relief such as someone who is convicted of an offense and then years later facing immigration consequences, goes back, tries to get that conviction vacated. It's not so clear. The vacater is not valid if it's done solely for immigration purposes or rehabilitative purposes. The vacater must be based on a procedural or substantive defect in the underlying criminal proceeding. So look at Matter of Pickering and cases related to that. You can always argue due process or under the ambit of due process ineffective assistance of counsel. Padilla v. Kentucky is the major case in that regard. But there has been a fair amount of precedent since that time on what constitutes ineffective assistance of counsel in the criminal proceedings as relates to immigration consequences. Other defenses. If your client is facing the grounds of inadmissibility, deny that they admitted to the facts. So remember, for the grounds of inadmissibility, many of the grounds do not require an actual court order of guilt. It could include somebody who admitted to the facts and was punished in any way. So simply deny that your client admitted to the relevant facts. The conduct admitted to is not a crime in the jurisdiction where it occurred. You can argue that your client did not admit to all of the factual elements required for a finding of guilt. You can argue that your client was not provided with the definition of a crime before making an admission. So they did not make a knowing and voluntary confession. And basically that their admission was not voluntarily given. If your client is charged with the reason to believe provision of a controlled substance offense. Reason to believe that they engaged in drug trafficking, you can argue that they were not a knowing or conscious participant in the trafficking. That the evidence of the trafficking is not reasonable, substantial, and probative. You can argue that the government has not met their burden of proof. And you can always file a motion to suppress the evidence. How does the government determine that the statute for which your client was convicted of qualifies as a crime involving moral turpitude, an aggravated felony, controlled substance offense, et cetera? That's determined by application of the categorical analysis. This analysis does not look to the facts of the case. It focuses on matching the elements of the statutes. So where there's a categorical match between the elements of the crime that your client was convicted of locally and those elements meet those of the federal statute, so the ground of admissibility or removability, as determined by the generic definition of the defense case law, et cetera, then there's a categorical match. If all of the elements a jury must agree upon to find a conviction are not expressly defined in the INA, then you must identify the generic definition of the relevant federal offense and the minimum conduct for prosecution under the state offense. So what is the least of the acts criminalized? And is there a realistic probability that conduct would lead to a prosecution? A lot of case law defining those two phrases, least of the acts and realistic probability. But what is the generic definition of a federal offense? Well that is how did the majority of states and the relevant sources define the offense at the time the removal ground was established? So how do we know if someone committed a crime of domestic violence? Well, how was the phrase crime of domestic violence generally understood at the time that ground was created? Some case law on that analysis. And if you have determined that there is a match with a generic definition, you first take a circumstance-specific approach. So if there's a categorical match, but the federal statute adds circumstances, look to the circumstances of conviction. So for example, one of the grounds, one of the sections, of an aggravated felony is whether someone's convicted of a crime of fraud or deceit in which the victim lost $10,000. So that's a ground that requires a finding of specific facts, specific circumstances. So maybe your client was convicted of a crime of deceit matching the generic definition, but it did not involve a loss of $10,000. So look to the definitions of controlled substances as well. Someone was charged with a controlled substance defense as we saw earlier, that includes federally defined controlled substances. So look at the federal definition, look at the state drug schedules or the definition of the drugs. If the state drug schedules are broader or the state defines the drug in a broader manner, there might not be a categorical match. Building on that point. Essentially what we're doing here in the categorical analysis is comparing elements. Does the minimum conduct required for conviction of a state statute meet all the elements of the federal statute or the generic definition? If yes, meaning every single violation of the state statute necessarily violates the federal offense, then the ground applies. So in the last bullet, for example, if the state defines a drug in a broader manner than the federal ground, you could argue your client may have been convicted under a... for possessing a drug that does not exist on the federal schedule. In which case you could argue that there is not a categorical match. Another way to think of this, if the minimum conduct under the state statute does not meet all the elements of the federal statute or the generic definition, then the state statute is over broad. So the state statute might include conduct not included in the generic definition. So again, if your client was convicted of a controlled substance defense in, say, New York state, but the New York state schedule of illicit drugs is broader than the federal schedule, you might argue that your client might have been convicted of an offense involving a drug that is not on the federal schedule. Therefore it is not a categorical match. Thus, it is possible to violate at the state statute but not the federal offense. In that instance you can proceed to the modified categorical approach. But note the realistic probability test. This is a matter of great dispute across the federal jurisdictions. So if you're gonna say your client was convicted of something that may have not been included in the federal ground, depending on the jurisdiction, you might have to show if there was still a realistic probability that they could be convicted of that thing. So look to the language of the state statute, state case law, the actual plea bargain, other examples of cases in the locality. So ask a local prosecutor, the local defense bar. Is there a realistic possibility that someone could be charged with the offense based on this element that does not exist in the federal statute? So let's make this really simple. If the elements of the state offense of conviction all fall squarely within the elements of the federal generic definition, that means the federal definition is broader and it is a categorical match and the ground does apply. Let's look at an example. If the federal definition of the ground of burglary included these things unlawful entry into a structure with the intent to commit a crime and your client was convicted of the state offense of burglary and that required unlawful entry into a home with intent to commit a crime, we would argue that the state statute falls squarely within the definition of the federal offense. Why? Well, because there's a match of two of the three elements, and the third, home, obviously fits within a structure. The phrase structure is broader than the phrase home. So there's no way you could have committed the state offense without triggering the generic definition. Now let's look at the converse. If your client may have committed or engaged in activity that falls outside of that circle, the federal definition, then we're looking at a situation in which the state definition is broader. Therefore it is not a categorical match and the ground might not apply. So let's look at an example of that. Again using the definition of burglary. Say the generic federal definition was unlawful entry into a structure with the intent to commit a crime, but the state version that your client was convicted of required unlawful entry into a structure but included negligent or reckless acts. So in this instance, your client might have been convicted of something in which he behaved in a negligent or reckless manner, in which case they did not necessarily have the intent to commit the crime. So here we see that the state definition is broader and therefore it is not a categorical match. Now we turn to the modified categorical analysis. This applies if the state statute might actually include several different series of elements. So maybe you can divide the statute into multiple offenses. So look for disjunctive language. So if there's alternative phrasing in which one of the alternatives describes conduct that is a categorical match. And alternatives set out different elements for different offenses, in which case we come to the elements-based approach. Determine if the alternatives are, in fact, elements which are facts a jury must find beyond a reasonable doubt or simply means of committing offense. Jurisdictions might also look to the conduct-based approach. In which to determine if the statute is divisible you need to determine if the statute necessarily involves the conduct required under the federal statute. So for example, if you have a state statute that doesn't include the language fraud or deceit such as the aggravated felony ground we looked at earlier. But the state statute nevertheless refers to elements, nevertheless refers to offenses with elements involving fraud or deceit. We still have a match. To make that determination, again, look to the local law, jury instructions, the facts of your own case, et cetera, to determine whether the minimum conduct that your client engaged in has a realistic possibility of being prosecuted. If so, and if that conduct falls outside of the federal definition, then there's not a categorical match under the modified approach. Basically, if the state statute does not necessarily involve the conduct required of the federal statute, the ground does not apply. If it does, determine which was the offense of conviction. A look at the plain language, the terms under state law, jury instruction, sentencing records, indications from the record of conviction, again, the shepherd documents. Now, how does this apply? When do we actually need to use the categorical analysis? Well in the determination of whether the burden of proof has been met. And remember the removability context that the government's burden, and the inadmissibility context, that's your burden. If the record of conviction is conclusive, we know what your client was convicted of, then we apply the categorical analysis. If the record is not conclusive, who has the burden of proof depends on the context. So for example, if it's a ground of inadmissibility that we're looking at, we know that it's our burden of proof to show that your client is eligible for the benefit. We know they were convicted of something, but it's not conclusive from the record of exactly what conduct they were convicted of. In that instance, it is your burden to demonstrate which was the offense of conviction. If it's a ground of removability charge, it is the government's burden to establish what the offense of conviction was and therefore whether the categorical match applies. Okay, enough on the complicated part, the defenses. Now we're gonna move to benefits and waivers. What criminal activity might render your client ineligible for these benefits? Looking at naturalization. To naturalize, your client needs to establish good moral character during the requisite period. This is typically the previous five years. What is a finding of good moral character? Look to the statutory citations here, but a finding of good moral character will be precluded by acts described at INA 212A, again, grounds of inadmissibility including a crime involving moral turpitude. If your client committed a crime of moral turpitude in the previous five years when applying for naturalization, they will not have been found to have good moral character during that period and they will not be able to naturalize. Naturalization is also precluded for a finding of an aggravated felony. So again, if your client engaged in conduct that would constitute an aggravated felony after November 20th, 1990. That is a permanent bar on a finding of good moral character. So it doesn't matter if it was in the last three years, the last five years. If they engaged in this activity anytime after November 29th, 1990, they are permanently barred from naturalizing. They're also barred from naturalizing if they committed a controlled substance offense unless it was under 30 grams of marijuana for personal use, if they ever were convicted of two offenses with aggregate sentence of over five years, or if they were ever convicted of two gambling offenses. Last point regarding naturalization. If your client engaged in criminal activity before applying, but this did not come up during the naturalization process and they were awarded US citizenship, they may be subject to revocation of citizenship. Basically if they did the bad thing before they applied, they didn't mention that they did the bad thing, they became a US citizen, USCIS, or rather ICE can go back and try to revoke their citizenship. Now we also need to consider the grounds in the context of someone applying for a green card in the US which would be adjustment of status or consulate processing at a US embassy. In which event, again, they're applying for an immigration benefit. So the subject, the grounds of inadmissibility likely apply. As mentioned, there is a waiver for some of these grounds including a single offense of personal possession of less than 30 grams of marijuana. And there's a few other more obscure defenses INA 212 C for really old conduct. Stacking, that's a complicated formula when there's multiple criminal charges and potential waivers involved. We're not gonna deal with 'em now, but just know that when your client's applying for a green card, these are the possible defenses to look at when you're already facing the ground of inadmissibility. If your client is applying for temporary protected status, aka TPS. Whether or not it's also a ground of removability or inadmissibility, they will be barred from TPS for two misdemeanor convictions with an aggregate sentence of five years, if they've been convicted of a single felony, if they've been convicted for a controlled substance offense except for personal possession of 30 grams or less marijuana, or if they've been been convicted of any conduct that would trigger an INA 212 ground, basically meaning one of the criminal grounds of inadmissibility. Almost any ground that would trigger a criminal ground of inadmissibility would make someone also ineligible for TPS. Now, what would make someone ineligible for DACA? Deferred Action for Childhood Arrivals. One felony would. A conviction of any offense punishable by over year, one significant misdemeanor, which we defined earlier. Three misdemeanors not arising from the same acts. So essentially doing three bad things on separate occasions. Any activity that may indicate a threat to national security or public safety. This typically comes up in allegations of gang membership, but somebody is not barred from DACA if that conviction was expunged or if it was a juvenile disposition. What makes someone ineligible for asylum? Well, we look here at INA section 209 for the grounds that would make someone ineligible. There is a waiver for certain grounds of inadmissibility but not for reason to believe in drug trafficking, national security grounds, terrorist activities, foreign policy considerations, or Nazi persecution. If your client engaged in any of these things, there is no waiver and they will not be eligible for asylum. Another ground that would make someone ineligible for asylum is what's called a particularly serious crime or serious non-political crime outside the United States. That is also a legal term of art defined by substantial case law. But just know if your client's committed any activity that falls within 209 or that might fall within the definition of a particularly serious crime, they will not be eligible for asylum. Now, what constitutes a particularly a serious crime? Any aggravated felony as defined above or any activity that might not be an agg fell, but the nature of the conviction, underlying facts and circumstances, the sentence imposed, and whether it indicates the individual is a threat to the community may determine whether the asylum office or immigration judge finds that the conviction was for a particularly serious crime. Whether your client is ineligible for withholding or removal basically involves the same analysis as asylum. So we're not gonna spend much time on it here. We are just going to note the analysis remains the same and we're gonna move on to cancellation of removal. To establish eligibility for cancellation of removal, you must establish, for permanent residents, seven years of residents in the US in any status and that you have not been convicted of an aggravated felony and deserve a positive exercise discretion. So again, these are people who are already permanent residents. They already have green cards, but they committed some kind of crime that put them into removal proceedings and they are applying for a defense of that called cancellation of removal. They have been found removable, the government met their burden, but there's this defense that they might apply for if they can establish seven years of residence that they deserve a positive exercise of discretion and that they have not been convicted of an aggravated felony. Now cancellation is eligible for non-permanent residents as well. So this would come up in the context where someone who does not have a green card for whom the government has established removability and now they're trying to get the green card by applying for cancellation of removal. And these are the elements required. You see, will see there has not been convicted of certain offenses the and to find out what those particular offenses are, we look to the statute. You're also ineligible for cancellation of removal if you're unable to show good moral character for the prior 10 years or if you've committed a crime under INA 212 two or 237 . Basically if you've committed a crime that would trigger the grounds of inadmissibility or the grounds removability, you are ineligible for cancellation of removal for non-permanent residents. Lastly, we're going to look at voluntary departure, which is a form of relief available to people in removal proceedings. So you're an immigration court and you're basically conceding you will leave United States, but you would like to leave the United States without an order of removal, which would have certain consequences if you're trying to get back in. Basically telling the judge, hey judge, I will leave the US. Please just don't issue an order of removal or deportation. There's two varieties pre-hearing voluntary departure and post-hearing, which occurs at the conclusion of removal proceedings. There's different requirements for either, but you must show for post-hearing that you have five years of good moral character leading up to the hearing, that you are not subject to any of the criminal grounds of inadmissibility. For example, CIMT, controlled substance defense, et cetera. Now, what if somebody is applying for a temporary visa, enter the United States. So for example, visitor visa, student visa, performers, temporary workers, et cetera, but they have a conviction that would trigger a ground of inadmissibility, one of those 212 grounds. They may be eligible for waiver. It's a catch all waiver for all of these grounds. The criteria for which is whether there's a risk of harm to society if the non-citizen is admitted. How serious was the violation of the prior immigration or criminal law? And what are their reasons for wishing to enter the United States? Now, they're not eligible for this waiver if there's a reasonable ground to believe that they're coming here to spy, overthrow the government, et cetera, or if there's otherwise potentially serious foreign policy consequences. And with that, we have exhaustively covered the relevant information and documentation you need to determine the immigration consequences, how to review the potential consequences, what is the analysis required to determine which consequences apply, and what are the potential defenses? So each one of these can be subject to separate, in fact, multiple trainings. There's just enough information for here to get started in this 101 course. And thank you for attending this Quimbee CLE. We do appreciate your feedback. Cheers.

Presenter(s)

MBJ
Matthew Blaisdell, JD
Owner
Matthew Blaisdell, Esquire

Course materials

Handout

Credit information

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    • 1.0 voluntary
    December 14, 2024 at 11:59PM HST Available
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    Pending
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    • 1.0 general
    December 14, 2024 at 11:59PM HST Approved
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      • 1.0 general
      December 14, 2024 at 11:59PM HST Available
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        • 1.0 general
        October 31, 2024 at 11:59PM HST Approved
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        Pending
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        • 1.0 general
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          December 20, 2024 at 11:59PM HST Approved
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                Not Offered
                Kentucky
                  Not Offered
                  Louisiana
                  • 1.0 general
                  Pending
                  Maine
                  • 1.0 general
                  December 31, 2026 at 11:59PM HST Self-apply
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                      • 1.0 general
                      December 14, 2024 at 11:59PM HST Available
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                        • 1.0 general
                        January 20, 2025 at 11:59PM HST Approved
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                        • 1.0 general
                        December 31, 2026 at 11:59PM HST Approved
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                        • 1.0 general
                        December 14, 2024 at 11:59PM HST Available
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                        • 1.2 general
                        January 16, 2025 at 11:59PM HST Approved
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                          • 1.0 areas of professional practice
                          December 14, 2024 at 11:59PM HST Available
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                          • 1.0 general
                          Pending
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                          December 14, 2024 at 11:59PM HST Available
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                                          December 14, 2024 at 11:59PM HST Approved
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                                            December 15, 2027 at 11:59PM HST Approved
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                                                    December 14, 2024 at 11:59PM HST

                                                    Status
                                                    Available
                                                    Credits
                                                    • 1.0 general
                                                    Available until

                                                    December 14, 2024 at 11:59PM HST

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                                                    Available
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                                                    • 1.0 general
                                                    Available until
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                                                    Pending
                                                    Credits
                                                    • 1.0 general
                                                    Available until

                                                    December 14, 2024 at 11:59PM HST

                                                    Status
                                                    Approved
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                                                      Available until
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                                                      Not Offered
                                                      Credits
                                                      • 1.0 general
                                                      Available until

                                                      December 14, 2024 at 11:59PM HST

                                                      Status
                                                      Available
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                                                        Available until
                                                        Status
                                                        Not Offered
                                                        Credits
                                                        • 1.0 general
                                                        Available until

                                                        October 31, 2024 at 11:59PM HST

                                                        Status
                                                        Approved
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                                                        • 1.0 general
                                                        Available until
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                                                        Pending
                                                        Credits
                                                        • 1.0 general
                                                        Available until

                                                        December 14, 2024 at 11:59PM HST

                                                        Status
                                                        Available
                                                        Credits
                                                        • 1.0 general
                                                        Available until

                                                        October 26, 2024 at 11:59PM HST

                                                        Status
                                                        Approved
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                                                          Available until
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                                                          Not Offered
                                                          Credits
                                                          • 1.0 general
                                                          Available until

                                                          December 20, 2024 at 11:59PM HST

                                                          Status
                                                          Approved
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                                                                Credits
                                                                  Available until
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                                                                  Not Offered
                                                                  Credits
                                                                  • 1.0 general
                                                                  Available until
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                                                                  Pending
                                                                  Credits
                                                                  • 1.0 general
                                                                  Available until

                                                                  December 31, 2026 at 11:59PM HST

                                                                  Status
                                                                  Self-apply
                                                                  Credits
                                                                    Available until
                                                                    Status
                                                                    Not Offered
                                                                    Credits
                                                                      Available until
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                                                                      Not Offered
                                                                      Credits
                                                                      • 1.0 general
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                                                                      December 14, 2024 at 11:59PM HST

                                                                      Status
                                                                      Available
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                                                                        Available until
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                                                                        Not Offered
                                                                        Credits
                                                                        • 1.0 general
                                                                        Available until

                                                                        January 20, 2025 at 11:59PM HST

                                                                        Status
                                                                        Approved
                                                                        Credits
                                                                        • 1.0 general
                                                                        Available until

                                                                        December 31, 2026 at 11:59PM HST

                                                                        Status
                                                                        Approved
                                                                        Credits
                                                                        • 1.0 general
                                                                        Available until

                                                                        December 14, 2024 at 11:59PM HST

                                                                        Status
                                                                        Available
                                                                        Credits
                                                                        • 1.2 general
                                                                        Available until

                                                                        January 16, 2025 at 11:59PM HST

                                                                        Status
                                                                        Approved
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                                                                          Not Offered
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                                                                          • 1.0 areas of professional practice
                                                                          Available until

                                                                          December 14, 2024 at 11:59PM HST

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                                                                          Credits
                                                                          • 1.0 general
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                                                                          December 14, 2024 at 11:59PM HST

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                                                                          Available
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                                                                                        • 1.0 general
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                                                                                        • 1.0 general
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                                                                                        Pending
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                                                                                          Not Offered
                                                                                          Credits
                                                                                          • 1.0 general
                                                                                          Available until

                                                                                          December 14, 2024 at 11:59PM HST

                                                                                          Status
                                                                                          Approved
                                                                                          Credits
                                                                                            Available until
                                                                                            Status
                                                                                            Not Offered
                                                                                            Credits
                                                                                            • 1.0 general
                                                                                            Available until

                                                                                            December 14, 2024 at 11:59PM HST

                                                                                            Status
                                                                                            Available
                                                                                            Credits
                                                                                            • 1.0 law & legal
                                                                                            Available until

                                                                                            December 15, 2027 at 11:59PM HST

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                                                                                            Approved
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