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Bar News - January 21, 2015


Criminal Law: An Immigration Primer for Defense Lawyers

By:

With a national debate raging about our “broken immigration system,” immigrants – documented and undocumented – and their attorneys need to be increasingly mindful that a brush with the law as common as a domestic dispute or possession of marijuana can be a life-altering experience for the immigrant.

This changing, post-9/11 landscape in immigration law poses continued obligations and opportunities for lawyers counselling immigrants in the criminal law arena. Equally significant, a conviction or a misguided plea can cut off a non-citizen’s immigration benefits and lead to deportation.

Executive Orders

On Nov. 21, 2014, President Obama announced his first steps toward immigration reforms. The policies, which reflect the limits of executive authority, accomplish the following:

  • Expand the Deferred Action for Childhood Arrivals (DACA aka Dreamers) program to young people, regardless of current age, who came to this country before turning 16 and have been here since Jan. 1, 2010.
  • Allow parents of US citizens and Legal Permanent Residents (LPR) who have been in the country since Jan. 1, 2010, to request deferred deportation and employment authorization for three years, in a new Deferred Action for Parents of Americans (DAPA) program, provided they pass a background check, i.e. criminal record.
  • Expand the use of provisional waivers of unlawful presence to include the spouses and children of LPRs and the children of US citizens.

These policies, although perhaps temporary, provide a chance for some undocumented immigrants to come out of the shadows. However, these benefits may evaporate for an immigrant with a criminal record (a DWI conviction is considered a significant misdemeanor barring relief).

Even though driving without a license is deemed a traffic offense, applicants are only afforded up to three lesser misdemeanors for this new relief. Described below, significant misdemeanors pertain to intent crimes.

CIMT and Aggravated Felonies

Conviction of Crimes Involving Moral Turpitude (CIMT) and aggravated felonies are the touchstones to swift deportation. Curiously, there is no statutory definition for CIMT. Further, a crime generally understood to be a CIMT or an aggravated felony under state law, may not be such under US immigration law. The reverse is also true.

The category of aggravated felonies includes murder, rape, sexual abuse, drug or firearms trafficking, theft, burglary, fraud and bribery involving more than $10,000.

Moral turpitude is an act that is evil, vicious or depraved with a mens rea of at least recklessness. The most common elements involving moral turpitude are fraud, larceny, and intent to harm persons or things and include child abandonment or abuse, spousal abuse, serious assault/battery (some leeway for simple assault), robbery, petty larceny, welfare fraud, possession of stolen property, copyright infringement, perjury, tax evasion, and certain disorderly conduct.

Practice pointer: When negotiating a plea for theft or violent crime, a 12-month sentence, suspended, is equivalent to an aggravated felony. Make the plea for one year, minus one day. Likewise, for a defendant accused of serious fraud, make the plea for less than $10,000. A deferred sentence, accompanying a plea, can still have immigration consequences, particularly if the defendant admits to elements of a crime on the record.

Expungement

It is commonly believed that a way to clear one’s criminal record, to avoid deportation, is to annul the conviction and place it under seal, but for immigration purposes, federal law does not recognize expungement or annulment.

Convictions are forever, and although they may disappear from some state records, they will generally be everlasting on an NCIC search.

The Vienna Convention

Article 36 of the Vienna Convention on Consular Relations provides that detained foreign nationals shall be advised that they may have the consulate of their home country notified of their anest and detention. Bilateral agreements with numerous countries require consular notification whether or not the detained foreign national requests it.

Article 36 requires consular notification advice to be given “without delay,” and arresting officers are primarily responsible for providing this advice.

Providing this advice at the initial appearance is designed not to relieve law enforcement officers of that responsibility, but to provide additional assurance that US treaty obligations are fulfilled, and to create a judicial record of that action. The Treaty requirements apply to both state and federal charges.

Note that Fed. R. Crim. P. 5(d)(1)(F) amended leaves unresolved whether Art. 36 creates individual rights that may be invoked in a judicial proceeding and what, if any, remedy may exist for a violation. Sanchez-Llamas v. Oregon (2006).

T and U Visa Relief

The Victims of Trafficking and Violence Protection Act of 2000 created two types of visas available for certain victims of crimes.

U nonimmigrant visas provide legal status to victims of an enumerated list of “qualifying criminal activities” who have suffered substantial physical or mental abuse, and possess information concerning that crime, and who have been, are being, or are likely to be helpful to law enforcement or government officials.

In early 2015, the Wage and Hour Division (WHD) of the Department of Labor will expand its U visa program by certifying such requests when it detects three qualifying criminal activities in the course of its workplace investigations of extortion, forced labor, and fraud in foreign labor contracting. This will help qualifying victims of crimes receive immigration relief from the Department of Homeland Security (DHS) and access a range of victim services needed to rebuild their lives.

T nonimmigrant visas provide legal status to certain victims of human trafficking who assist law enforcement authorities in the investigation or prosecution of trafficking crimes.

Domestic Violence

A slight variation to the U visa, an undocumented battered child, spouse or domestic partner, married or unmarried may be eligible for a Green Card under the Violence against Women Act (VAWA). The harm may be physical or psychological.

Domestic violence is a big red flag. If convicted of DV or violating a protective order or injunction, an immigrant is virtually certain of being deported and likely ineligible for a Green Card or become naturalized as a US citizen, even if the complaining spouse or partner later attempts to disavow the claim.

Practice pointer: When entering a plea in domestic cases in state Circuit Court, counsel may advise a client of possible consequences, even if no jail time. Avoid at all costs a plea to a domestic violation charge and negotiate to non-domestic simple assault.

Naturalization

To become a US citizen, the applicant must be at least 18, an LPR (Green Card holder) for at least three years with physical presence in the US for at least 30 months, able to speak, read, write and understand English, knowledgable of US government and history, and (here’s the catch) a person of good moral character, and be “favorably disposed toward the good order and happiness of the US.”

Even admission to unlawful behavior, such as smoking marijuana or playing with gambling machines at a local social club, without a conviction, can lead to deportation. In limited cases, a “petty offense exception” may apply. Other bars to naturalization may arise from:

  • a conviction for multiple crimes for which the applicant was sentenced to five years or more in the aggregate
  • a violation of the controlled substance laws of any country. One exception: a single conviction for simple possession of 30 grams or less of marijuana
  • giving false testimony for the purpose of obtaining an immigration benefit
  • one or more DWI convictions
  • nonsupport of dependents of a spouse or children outside the US
  • a failure to register with the Selective Service

Generally, there is a five-year look-back period, but USCIS can review earlier history, if it appears that the Green Card holder is not “rehabilitated.”

Practice pointer: Advise the client to change the picture for USCIS prior to Green Card renewal by volunteering for a nonprofit, keeping steady employment, developing friendships in the community and joining civic organizations.

Ineffective Assistance of Counsel

In the 2010 case of Padilla v. Kentucky, the US Supreme Court found ineffective assistance of counsel following failure to advise defendant that his plea could result in deportation. It held that the defendant under the 6th Amendment had a right to notice of immigration consequences.

In State v. Deicy Urena Ortiz (2012), the NH State Supreme Court held that due process protections do not require trial courts to advise defendants of such potential consequences during plea colloquies, concluding that the State has met its burden to demonstrate, to a clear and convincing degree, that the defendant’s plea was knowing.

Being arrested, admitting to elements of a crime on the record, being convicted, and understanding how the conviction is categorized for purpose of federal immigration law poses challenges to both counsel and foreign nationals. Even a person who has been naturalized can be at risk of having his or her citizenship reopened, if he or she discovered being untruthful about a prior conviction.


Enrique Mesa Jr.

George Bruno

George Bruno and Enrique Mesa are family and business immigration lawyers at LawServe in Manchester. They offer professional courtesy to New Hampshire lawyers with immigration questions.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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