Presentation is loading. Please wait.

Presentation is loading. Please wait.

Immigration Consequences of Criminal Offenses Unit 2: Immigration Consequences of Criminal Adjudications.

Similar presentations


Presentation on theme: "Immigration Consequences of Criminal Offenses Unit 2: Immigration Consequences of Criminal Adjudications."— Presentation transcript:

1 Immigration Consequences of Criminal Offenses Unit 2: Immigration Consequences of Criminal Adjudications

2 Possible Immigration Consequences of a Criminal Conviction in Texas DEPORTATION: Forcible removal from the United States and the imposition of a legal bar from returning to the US for a certain period of time (INA §237(a) [8 USC 1227 (a)]). INADMISSABILITY: Denial of re-entry to the United States attempting to return to the US from abroad (INA §212(a) [8 USC 1182]). DETENTION: Detention in federal custody pending a deportation hearing (INA §236 [8 USC 1226]).

3 Possible Immigration Consequences of a Criminal Conviction in Texas While any or all of the three consequences noted on the slide before can flow from criminal activity by a client who is a non-citizen, perhaps the consequence that most concerns criminal defense lawyers is deportation. Most crime-related deportation grounds requires a “ conviction ” to trigger a basis for deportation, raising the question:

4 Possible Immigration Consequences of a Criminal Conviction in Texas WHAT CONSTITUTES A “ CONVICTION ” FOR IMMIGRATION PURPOSES?

5 What is a “ Conviction ” for Immigration Purposes? Under the INA, a conviction exists where there has been a formal adjudication of guilt entered by a court or if adjudication has been deferred, where all of the following elements are present:

6 What is a “ Conviction ” for Immigration Purposes? (1) A judge or jury has found the alien guilty, or the person entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and

7 What is a “ Conviction ” for Immigration Purposes? (2) The judge has ordered some form of punishment, penalty or restraint on the person ’ s liberty to be imposed. INA § 101(a)(48)(A).

8 What is a “ Conviction ” for Immigration Purposes? JUDGEMENT OF GUILT – PLEA OR VERDICT (INCLUDING PLEA OF NOLO CONTENDERE): YES INA § 101(a)(48) [8 U.S.C 1101(a)(48)

9 What is a “ Conviction ” for Immigration Purposes? JUDGEMENT OF GUILT – APPEAL PENDING: NO Matter of Devison, 22 I&N Dec (BIA 2000)

10 What is a “ Conviction ” for Immigration Purposes? DEFERRED ADJUDICATION WITH PENALTY: YES Matter of Punu, 22 I&A Dec. 224 (BIA 1998)

11 What is a “ Conviction ” for Immigration Purposes? DEFERRED ADJUDICATION WITH NO PENALTY IMPOSED: NO Provided the court does not order some form of punishment. Payment of court costs would not be considered punishment. See Mary E. Kramer, Immigration Consequences of Criminal Activity, A guide to Representing Foreign-Born Defendants, 2 nd Edition, American Immigration Lawyers Association (2005), at 47.

12 What is a “ Conviction ” for Immigration Purposes? DISMISSAL NO

13 What is a “ Conviction ” for Immigration Purposes? PRETRIAL DIVERSION (AKA “ DEFERRED PROSECUTION ” or “ PLEA IN ABEYANCE ” : NO Pretrial diversion is not a conviction for immigration purposes as long as the process of securing pretrial diversion does not satisfy both prongs of the definition of conviction set forth in INA § 101(a)(48)(i) and (ii), [8 U.S.C. 1101(a)(48)(i) and (ii)]

14 What is a “ Conviction ” for Immigration Purposes? ADMISSIONS TO THE PROSECUTOR: NO See Mary E. Kramer, Immigration Consequences of Criminal Activity, A guide to Representing Foreign-Born Defendants, 2 nd Edition, American Immigration Lawyers Association (2005), at 48.

15 What is a “ Conviction ” for Immigration Purposes? EXPUNCTION AND RECORD SEALING: YES Matter of Roldan, 22 I&N Dec. 224 (BIA 1999)

16 What is a “ Conviction ” for Immigration Purposes? VACATION OF A CONVICTION (ON THE MERITS): NO Matter of Rodriguez-Ruiz, 22 I&N Dec (BIA 2000)

17 What is a “ Conviction ” for Immigration Purposes? VACATION SOLELY RELATED TO IMMIGRATION: YES U.S. v. Reyes,945 F.2d 862 (5 th Cir 1991)

18 What is a “ Conviction ” for Immigration Purposes? JUVENILE DELINQUENCY DISPOSITION: NO Matter of Devison, 22 I&N Dec (BIA 2000)

19 What is a “ Conviction ” for Immigration Purposes? SUSPENSION OF SENTENCE: YES INA 101(a)(48)(B) [8 USC 1101(a)(48)(B)]

20 Damage Control Avoid Identification as Immigrant Subject to Detainer – Post bail as quickly as possible – Avoid a sentence to jail – Avoid final conviction if this is the only ground for deportation (except 1 st, 5 th, 7 th Circuits may consider convictions on direct appeal final) – Avoid disclosure of nationality, immigration status or place of birth, especially during DHS interviews in jail or prison

21 Damage Control DHS Interviews in Jails & Prisons: Advise Clients of Dos and Don ’ ts – Don ’ t say anything. – Don ’ t sign anything. – Don ’ t lie. – If you feel that you have to say something, only say, “ I want to talk to my lawyer. ”

22 Use the Quick Reference Chart Quick Reference Chart for Immigration Consequences: – Look up offense by code section – Look to Chart to identify immigration consequences – Avoid Aggravated Felonies, Crimes Relating to Controlled Substances, Crimes Involving Moral Turpitude, and Crimes Involving Domestic Violence, Child Abuse, Fraud, Firearms, Etc.

23 Resource Links – Where to Go for Help National Legal Aid & Defender Association – Defending Immigrants Partnership – NLG National Immigrants Project – NYSDA Immigrant Defense Project – ILGC –


Download ppt "Immigration Consequences of Criminal Offenses Unit 2: Immigration Consequences of Criminal Adjudications."

Similar presentations


Ads by Google