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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

51. Categorical Analysis The analysis does not focus on conduct of defendant (what she did or did not do) but on the elements required for conviction as set forth in the statute of conviction or, where applicable, the record of conviction. The analysis does not focus on conduct of defendant (what she did or did not do) but on the elements required for conviction as set forth in the statute of conviction or, where applicable, the record of conviction.

52. Categorical Analysis – Step One Step 1A: Identify elements of the “generic definition” of the immigration provision at issue Step 1A: Identify elements of the “generic definition” of the immigration provision at issue –Some defined by reference to a federal criminal statute (e.g. “crime of violence” is defined by reference to 18 USC 16) –If no reference to federal statute, then defined by the courts/case law (e.g. crimes involving moral turpitude)

53. Categorical Analysis – Step One Step 1B: Compare the elements of the “generic definition” to the elements required for conviction under the criminal statute of conviction. Step 1B: Compare the elements of the “generic definition” to the elements required for conviction under the criminal statute of conviction. –Imperative to locate a copy of the statute of conviction

54. Categorical Analysis – Step One If elements of statute of conviction sufficiently match generic definition, then the conviction “categorically” falls within the immigration provision and triggers the penalty If elements of statute of conviction sufficiently match generic definition, then the conviction “categorically” falls within the immigration provision and triggers the penalty Key is to focus on the ELEMENTS required for conviction Key is to focus on the ELEMENTS required for conviction

55. Categorical Analysis – Step One Important to identify the elements required for conviction under the criminal statute Important to identify the elements required for conviction under the criminal statute –Look to criminal statute and case law interpreting it to determine the elements required for conviction

56. Categorical Analysis If statute not categorical match, then conviction does not fall within the immigration provision. HOWEVER, If statute not categorical match, then conviction does not fall within the immigration provision. HOWEVER, May require STEP TWO analysis b/c crim statute is “overbroad” or “divisible” because either: May require STEP TWO analysis b/c crim statute is “overbroad” or “divisible” because either: –1. it includes multiple offenses –2. multiple ways to commit the offense Only some of which have elements that match the generic definition

57. Categorical Analysis – Step Two Step Two or “modified categorical analysis” Look to the “record of conviction” to determine the specific elements required for this conviction Look to the “record of conviction” to determine the specific elements required for this conviction Compare these specific elements to generic definition Compare these specific elements to generic definition If ROC doesn’t establish which part of criminal statute was basis for conviction, then it doesn’t trigger immigration provision If ROC doesn’t establish which part of criminal statute was basis for conviction, then it doesn’t trigger immigration provision

58. Documents Included In the Record of Conviction Information in the charging papers (however, only the count that has been pled to or proved, not original charges that have been amended or dismissed charges); Information in the charging papers (however, only the count that has been pled to or proved, not original charges that have been amended or dismissed charges); The judgment of conviction; The judgment of conviction; Jury instructions; Jury instructions; A signed guilty plea or a written plea agreement; A signed guilty plea or a written plea agreement; The transcript from the plea proceedings; and The transcript from the plea proceedings; and Sentence & transcript from sentencing hearing. Sentence & transcript from sentencing hearing.

59. Record of Conviction DOES NOT INCLUDE: Prosecutor’s remarks during the hearing; Prosecutor’s remarks during the hearing; Police reports; Police reports; The affidavit of probable cause; The affidavit of probable cause; Probation or “pre-sentence” reports; Probation or “pre-sentence” reports; Statements by the noncitizen outside of the judgment and sentence transcript (e.g., to police or immigration authorities or the immigration judge); Statements by the noncitizen outside of the judgment and sentence transcript (e.g., to police or immigration authorities or the immigration judge); A court docket summary prepared by clerical staff; A court docket summary prepared by clerical staff; Information from a co-defendant’s case. Information from a co-defendant’s case.

60. WARNING! The police report and/or affidavit of probable cause WILL BE INCLUDED in the ROC if it is incorporated into the plea statement as the factual basis for the plea. WARNING! The police report and/or affidavit of probable cause WILL BE INCLUDED in the ROC if it is incorporated into the plea statement as the factual basis for the plea.

61. Categorical Analysis – Step Two Defendant’s plea statement most important document Defendant’s plea statement most important document Charging papers or judgment & sentence alone are insufficient to establish elements of conviction where statute is overbroad or divisible Charging papers or judgment & sentence alone are insufficient to establish elements of conviction where statute is overbroad or divisible

62. Categorical Analysis It is imperative to consult with additional resources and experienced practitioners It is imperative to consult with additional resources and experienced practitioners –See Chapter 2 of Defending Immigrants in the Ninth Circuit for detailed analysis Read BIA and circuit court decisions to understand how the BIA and your circuit view and apply the categorical analysis Read BIA and circuit court decisions to understand how the BIA and your circuit view and apply the categorical analysis

63. Categorical Analysis – Step Two Examples: Examples: –1. Washington State Felony Assault 3 rd Statute has 8 different prongs that are 8 separate crimes, only some of which have elements that are CIMTs –2. Washington State Misdemeanor Assault 4 defined by case law to include multiple ways to commit the offense, only not all of which are crimes of violence under 18 USC 16 (as required for agg felony or DV deportation).

64. Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). Attempts to expand CIMT definition to “reprehensible acts.” Attempts to expand CIMT definition to “reprehensible acts.” Adds Step Three to Categorical Analysis: Adds Step Three to Categorical Analysis: –Where Steps 1&2 do not clearly establish whether crime is CIMT, adjudicator can consider “any relevant evidence” to make determination. Reconsideration pending before new A.G. Reconsideration pending before new A.G. –Consult experts to assist analysis to argue that Silva- Trevino’s new definition & Step Three do not apply.

65. Crimes & VAWA Self-Petitions Does categorical analysis provide basis to argue conviction does not trigger GMC bars? (especially unwaivable agg felony bar) Does categorical analysis provide basis to argue conviction does not trigger GMC bars? (especially unwaivable agg felony bar) –Example: Can you use the categorical analysis to argue that the assault conviction is not a crime of violence and, thus, even though 365 day sentence, NOT an agg felony?

66. Crimes & Discretion No matter what the criminal conduct or conviction, even if it doesn’t trigger a statutory bar to the I-360 petition or the U visa applications, your client must always prove that she warrants the grant of the application as a matter of discretion. No matter what the criminal conduct or conviction, even if it doesn’t trigger a statutory bar to the I-360 petition or the U visa applications, your client must always prove that she warrants the grant of the application as a matter of discretion. Submit evidence to establish rehabilitation and that she has complied with any conditions imposed by the criminal court.