Problems facing Non-Citizens in Court Presented by: Mira Mdivani Angela Williams Stephen Blower

What does Padilla Say? Padilla was an LPR Veteran Many many years in US Charged with possession with intent to distribute a boat load of pot Lawyer advised (incorrectly) that since he was a vet and had been here so long, he would not have any problems Main opinion: When the consequence is clear the advice needs to be equally clear. When the consequence is less clear one only need advise that there may be consequences Concurrence: Wanted to limit it to affirmative mis-advice Dissent: This is a collateral consequence, therefore even wrong advice is not IAC

Clear Consequences…(sort of) Aggravated Felony (8 USC § 1101(a)(43)) Inadmissible Crime (INA § 212(a)(2)(A)) (Cant get into the US) Deportable Crime (INA § 237(a)(2)(A)) (Kicks you out)

Step 1: Are you a US Citizen? Yes? Born in the USA? Yes? No Consequences!!!!

Are you a Naturalized USC? Conduct occur after Natz? Yes No Consequences!!! No? Uh Oh Maybe IC Move to step 2

Step 2: As Clear as it Gets Is it an Aggravated felony? § 101 (43)(a) Is it in the inadmissibility section? § 212(a)(2)(A) Is is in the Deportation section?§ 237(a)(2)(A) If it looks like a duck…

Warnings Agg Felon: This conviction will…

Warnings for inadmissibility

Warnings for Deportability

What is not Clear: CIMTs and COV CIMTs= Crimes involving moral turpitude Extremely difficult to determine; depends on wording of statute Base, vile and depraved and violates acceptable moral standards. More than negligence Must have specific intent (maybe reckless) COV= Crimes of violence Can avoid this if sentence is less than a year. If not, if it is in the ball park of force or violence or something from which violence is likely to occur, maybe a problem

CLEAR AS MUD Warnings:

Other Cr-immigration Problems Drug Convictions: Only exception for less than 30g of MJ= Must state the amount and must state the drug in sentencing Any other drug = BAD Any mention of trafficking= Bad In sentencing: the wording of the statement of facts and what is said on the record is important Sentences SIS, SES, Expunged records, No Contest, Alfrord Pleas, juvenile adjudications, setting aside the guilty plea or vacating the plea all can cause problems Diversions or pre-trial adjudications can cause problems if you admit to the essential elements of the crime Actual times served usually doesn’t matter it is the sentence imposed that is important

One more thing…..

Non-Criminal Issues for Non Citizens in Court Orders of protection (or violations of them) & Civil Contempt Divorce or annulment : Before petition is approved, continued obligation under affidavit of support Child Custody and International Kidnapping Child Support failure to pay child support Abused abandoned or neglected undocumented kids Guardianships