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Criminals and Immigration

The Effects of Convictions on Immigration Status

INITIAL CONSULTATION

· Determine immigration status of client. · Determine immigration status of immediate family members, including parents.

ICE

· Immigration and Customs Enforcement · Enforces immigration and customs laws inside the U.S.

ICE DETAINERS

· A formal notice to notify DHS if state or federal LE intend to release a non-USC or to hold the non-USC for DHS. Authorized in 8 CFR §§236.1, 287.7, 1236.1. · State or federal officials can hold a nonUSC for 48 hours based on a detainer. 8 CFR §287.7(d). Only for a person who is subject to removal. 8 CFR §287.7(b).

DETENTION HEARING

· ICE Detainer should not deter you from pursuing hearing before Magistrate Judge.

NEGOTIATING PLEAS & CONVICTIONS

· The Congressional Research Service has published a 2006 19-page report for Congress entitled "Immigration Consequences of Criminal Activity" and can be found at: http://digital.library.unt.edu/govdocs/crs/per malink/meta-crs-9934:1.

CONVICTIONS

· Look at definition of "conviction" under immigration law (which is different than under criminal law). · Federal First Offender Act.

IMMIGRATION COURT

· After criminal court, non-USC transfers to ICE jurisdiction for "Immigration Court", an administrative proceeding. · Not an Article III court. · The Immigration Court for North and South Carolina is in Atlanta, GA.

TYPES OF REMOVAL PROCEEDINGS

· Summary Removal · Expedited Removal · Regular removal proceedings

FORMS OF RELIEF

· · · · · · Asylum Withholding of removal Cancellation of Removal Voluntary Departure Adjustment of Status and waivers Potential "S" Visa, "T" visa, and "U" visa.

IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY

Aggravated Felonies

· At any time after admission to U.S., commission of an aggravated felony is ground for deportation, regardless of whether felony is a Crime of Moral Turpitude. · These felonies are listed in 8 U.S.C. § 1101(a)(43)

Aggravated Felonies

· Rule applies regardless of whether conviction was in State or Federal Court, or even if committed in another country.

Specific Aggravated Felonies

· Rape, murder, sexual abuse of a minor. · Drug trafficking · Illicit trafficking in firearms or destructive devices. · Offenses related to money laundering or ill gotten gains over $10k · Crimes of violence or theft for which the penalty is imprisonment for more than one year. · Extortion · Child pornography · RICO (Racketeering Influenced Corrupt Organizations)

More aggravated felonies

· Falsifying, forging, or altering a passport (except a first offense to assist an immediate family member). · Failure to appear for punishment if underlying offense could be punishable for 5 years or more. · Commercial bribery, forgery, or trafficking in vehicles with altered VINs. · Obstruction of justice or perjury, if punishable by more than one year. · Conspiracy to commit any of the above acts.

AGGRAVATED FELONIES

· Inadmissibility - Not a per se ground of inadmissibility; typically falls into another category of inadmissibility however. · Deportability/Removability - Conviction does subject person to deportation. · Mandatory Detention - Person released from prison after October 8, 1998, subject to this.

ALIEN SMUGGLING

· 8 USC §1182(a)(6)(E); 8 USC§1101(a)(43)(N) · Inadmissibility - Yes, does not require conviction. · Deportability - If committed prior to entry, at time of entry, or within 5 years of any entry. · Mandatory Detention - Not applicable unless classified as an aggravated felony.

CONTROLLED SUBSTANCE OFFENSES

· Conviction or admission of committing such offense makes one inadmissible; includes if "there is reason to believe" involved in drug trafficking (and extends to individual's immediate family members, too). · Exception: waiver available if conviction for single offense of simple possession of 30 grams or less of marijuana. No other waiver available.

CONTROLLED SUBSTANCES 2

· Deportability/Removability - Subjects one to deportation if convicted. · Exception: single offense of simple possession of 30 grams or less of marijuana. · Mandatory Detention - If released from prison after October 8, 1998, subject to this.

CRIMES INVOLVING MORAL TURPITUDE

· Conviction of crime involving moral turpitude committed within five years (or 10 years in the case of alien in possession of critical reliable information concerning a criminal organization) after the date of admission AND is convicted of a crime for which a sentence of one year or longer may be imposed.

CRIME INVOLVING MORAL TURPITUDE

· Also called CIMT · Conduct which is inherently base, vile or depraved, and contrary to the accepted rules of morality and duties owed between persons and to society and general.

CIMT'S

· Acts which are intrinsically wrong (malum in se), so the nature of the act and not the mere statutory prohibition which makes it wrong. · Evil intent · "Political crimes" excluded

SPECIFIC EXAMPLES OF CIMT'S

· Crimes Against the Person

­ Assault with intent to kill, rob, or rape. ­ Assault with a deadly weapon ­ Assault with a dangerous weapon (DC Code on this charge specifically held to be a CIMT by the 4th Circuit). ­ Carrying a concealed weapon with intent to use.

MORE CIMT'S

· · · · Child Abuse Spousal Abuse Aggravated Stalking Aggravated DUI or DWI (depends on the statute) · Murder or voluntary manslaughter

CIMT'S - continued

· Kidnapping · Robbery · Unlawful Restraint

CRIMES AGAINST PERSONS NOT CIMT'S

· · · · · · Simple assault and battery Assault related to resisting arrest Assault on police Negligent assault (if no intent) Malicious mischief Involuntary manslaughter

CIMT SEXUAL OFFENSES

· Adultery · Bigamy (in some cases) · Oral sex (crime against nature under state statute) · Prostitution

NON-CIMT SEXUAL OFFENSES

· · · · Bastardy Mailing an obscene letter Contributing to the delinquency of a minor But - indecent liberties with a minor IS a CIMT.

PROPERTY CRIMES CIMT'S

· · · · · · Arson Burglary (but simple B&E is NOT a CIMT) Embezzlement Fraud Extortion Receipt of stolen property with knowledge it is stolen

MORE PROPERTY CRIMES

· Shoplifting can be a CIMT · Stealing cellular air time! · Illegal use of credit cards. · Remember - must also be a crime for which more than one year active sentence could be imposed for only one conviction to count.

Non-CIMT Property Crimes

· Passing bad checks, if intent is not a necessary element. (If intent IS a necessary element, then it IS a CIMT.) · Possession of burglary tools · Rioting · Theft of services

CIMT'S Against Government

· Use of a fraudulent driver license! (Strict penalties for any alien that is involved in fake ID's or who falsely claims to be a USC.) · False statements on passport application. · False statement on firearms application. · False representation of SSN.

MORE CIMT'S AGAINST GOVERNMENT

· Kickbacks on government contracts · Possession of counterfeit securities, or transportation of same. · Harboring a fugitive. · Immigration fraud. · Mail fraud. · Money laundering.

Crimes against Government

· · · · Obtaining welfare benefits through fraud. Turnstile jumping! (93 F.Supp.2d 286) Almost any fraud crime. Convictions under the Controlled Substances Act.

More Offenses

· Prostitution, trafficking in people for same, or involuntary servitude. · Offenses related to national defense information, sabotage, espionage, or disclosing information about undercover agents. · Fraud, deceit, or tax evasion over $10k. · Alien smuggling (exception for first offense for immediate family members). · Any offense committed by an alien previously deported for one of these offenses.

Crimes of Moral Turpitude

· Inadmissibility - A ground of inadmissibility; includes conviction and admission (other than a purely political offense); petty offense exception applies (maximum potential penalty does not exceed one year imprisonment and person not sentenced to term of more than 6 months); may be eligible for waiver.

More affects of CIMT's

· Deportability/Removability - A ground if admitted (includes LPR) and convicted of a CIMT within 5 yrs of date of admission (or 10 years in the case of a grant of LPR status under 8 USC §1255(j) ­ via "S" visa) and offense for which one year or more may be imposed.

Multiple Criminal Convictions

· Regardless of whether CIMT can be punished by active sentence of one year or more, conviction of two CIMT's is ground for deportation.

· Conviction or two or more crimes involving moral turpitude, not arising out a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial at any time after admission.

DOMESTIC VIOLENCE 8 USC §1227(a)(2)(E)

· Inadmissibility - could be if meets certain criteria. · Deportability - If after September 30, 1996, subject to deportation. Can be waived if person victim of domestic violence. · Mandatory Detention - Not unless the domestic violence crime also an aggravated felony or CIMT (as inadmissibility ground).

Export Law Violations 8 USC §1182(a)(3)(A)(i)

· Inadmissibility - if person "seeks to enter" the U.S. to engage in such activity. Past conviction not a bar if no future intent to engage in such behavior. · Deportability - Ground for deportation, includes any violation relating to goods, technology or sensitive information. · Mandatory Detention - No.

IMMIGATION CRIMES

· · · · Examples: Failure to Register Change of Address Visa or Passport Fraud Falsification of Documents

IMMIGRATION CRIMES - 2

· Inadmissibility - If fail to register an address change, can be found inadmissible under different inadmissibility provision (INA §212(a)(3)(A)(ii)), instead of 8 USC §1182(a). · Visa fraud conviction under 18 USC §1546 is not a per se ground of inadmissibility; not automatically a CIMT.

IMMIGRATION CRIMES - 3

· Deportability - Criminal and civil judgments for visa fraud can be grounds for deportation. · See 8 USC §1324c. · 8 USC §1227(a)(3)(B) makes one convicted for failure to register or visa fraud deportable.

IMMIGRATION CRIMES - 4

· Mandatory Detention - Not applicable if registration offenses (8 USC §§1302, 1304) or civil/criminal document violations · 8 USC §1324c. · Not applicable if deportable under 8 USC §1277(a)(3)(B) for registration and visa fraud, if only ground of deportation. (See next exception.)

IMMIGRATION CRIMES - 5

· Exception: if conviction under 18 USC §1546 considered to be CIMT and sentenced to more than 1 year, or if more than 1 conviction or an aggravated felony because term of 12 months or more of imprisonment imposed, mandatory detention applies. · If the visa fraud alleged to be ground of inadmissibility because CIMT, subject to mandatory detention.

FIREARMS OFFENSES 18 USC §921(a)

· Inadmissibility- Not a ground. · Deportability- Yes, and could be aggravated felony based on a decision in Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002) (state firearms offenses are agg. felonies if federal law counterpart exists). · Mandatory Detention - if released from prison after October 8, 1998.

Money Laundering Offense 18 USC §§1956 -7

· Inadmissibility - conviction not necessary; "reason to believe" sufficient. · Deportability - If amount exceeds $10,000, becomes an aggravated felony. Otherwise, typically classified as CIMT. · Mandatory Detention - Applicable, conviction not necessary if alleged as ground of inadmissibility.

Other Actions Making an Alien Deportable

· High Speed Flight from an Immigration Checkpoint. · Drug addiction or drug abuse, regardless of conviction. · Violation of drug laws of any country (with exception for a single offense of possession of less than 30 grams of marijuana).

Other Actions Making an Alien Deportable

· Violation of protective orders. · Domestic violence, crimes against children, including abuse, neglect, or abandonment.

Specific Criminal Offenses

Re-entry After Deportation/Removal (8 USC §1326)

POTENTIAL DEFENSES

· Misidentification · Person granted a waiver to re-enter · 5-year statute of limitations expired (in 18 USC §3283) ­ can use when person has re-entered and filed an application with DHS or placed them on notice that in the U.S.

POTENTIAL DEFENSES 2

· Coercion and intimidation or duress (see U.S. v. Lee, 694 F.2d 649 (11th Cir. 1983)) · Challenge the administrative order of deportation before the IJ if can show order derived from fundamentally unfair proceeding (see U.S. v. Mendoza-Lopez, 481 U.S. 828 (1987) (concerning judicial review of deportation order by Article III court)).

INADMISSIBILITY

· Not admissible if person who has been ordered removed (through summary exclusion or removal initiated upon arrival into U.S.) after April 1, 1997, and seeks admission within 5 years (or 20 years if second or subsequent removal) or at any time if convicted of an aggravated felony, unless prior permission has been granted.

DEPORTABILITY/ REMOVABILITY

· A removal order will be reinstated where the U.S. Attorney General finds that a person removed or given voluntary departure under an order of removal re-enters the U.S. illegally. Note: the circuit courts are split on whether the provision to reinstate removal orders applies to any deportation orders entered prior to April 1, 1997.

FALSE CLAIM TO U.S. CITIZENSHIP

18 USC §911

Inadmissible to U.S.

· If false claim to citizenship was made on or after September 30, 1996, makes one inadmissible. · Exception: (1) if one's parents were or are USCs; (2) the person permanently resided in the U.S. prior to 16; and (3) the person reasonably believed he was a USC.

DEPORTATION

· A person making false claims to citizenship is deportable if representation made on or after September 30, 1996. · Exception: (1) if one's parents were or are USCs; (2) the person permanently resided in the U.S. prior to 16; and (3) the person reasonably believed he was a USC.

QUESTIONS?

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