1. IMMIGRATION C ONSEQUENCES OF C RIMINAL D ISPOSITIONS IN V IRGINIA Heidi Altman, Legal Director Rachel Jordan, Senior Attorney Capital Area Immigrants’ Rights (CAIR) Coalition Virginia Justice Program 202-331-3320 x 20, x14 heidi@caircoalition.org rachel@caircoalition.org August 2016

2. T HINKING ABOUT I MMIGRATION C ONSEQUENCES

3. L EGAL AND E THICAL O BLIGATIONS Padilla v. Kentucky, 589 U.S. 356 (2010) Counsel must advise of specific immigration consequences Failure to advise plus prejudice = basis to vacate for IAC Zemene v. Clarke, No. 140719 (Va. Feb. 26, 2015) First Va. Supreme Court published decision discussing scope of Padilla obligations Broad articulation of defense obligations Handout – CAIR Coalition practice advisory

4. Z EMENE ’ S H OLDING – S TRICKLAND ’ S P ERFORMANCE P RONG Counsel’s performance fell below objective standard of reasonableness because did not: (1) Undertake to learn the “precise nature” of the client’s immigration status (2) Determine if there are “potential negative consequences” to immigration status from plea (3) Broach the subject of any potential immigration consequences with prosecutor during plea negotiations (4) Discuss with client the likelihood of potential negative consequences from plea

5. G ROUP D ISCUSSION : I MMIGRATION C ONSEQUENCES When advising client, what types of immigration consequences do you talk about? How do you determine what immigration issues are relevant?

6. I MPACT OF A C RIMINAL C ONVICTION Removal (aka deportation) proceedings Mandatory no-bond immigration detention Bars to defenses to deportation (aka relief from removal) Bars to future lawful status or other immigration benefits Inability to renew green card Inability to travel internationally Inability to naturalize

7. 4 S TEPS TO P ROVIDE E FFECTIVE A SSISTANCE OF C OUNSEL Step 1:Investigate client’s immigration and criminal history Step 2:Analyze immigration impact of case Step 3:Discuss immigration analysis with client and ascertain client’s wishes Step 4:Defend against immigration consequences

8. S TEPS 1 & 3: I NVESTIGATE & A SCERTAIN

9. I NVESTIGATE THE F ACTS Use an immigration intake form See CAIR Coalition’s Model Intake Form 1) Immigration status Current status Date of entry and status at entry 2) Criminal history Include everything – sealed, low-level, vacated, etc… Date of commission and conviction important Potential and actual sentence important 3) Family ties – especially U.S. citizen spouse, children, parents

10. D ETERMINING I MMIGRATION S TATUS Lawfully PresentUnlawfully present U.S. CitizenVisa overstay Lawful Permanent Resident (LPR) (aka “green card holder”) “EWI” (entered without inspection) Asylee/Refugee Valid non-immigrant visa: tourist, student, etc. Temporary Protected Status Deferred Action (DACA or DAPA or other) Order of Supervision

11. G ROUP D ISCUSSION : A SCERTAINING C LIENT W ISHES What different immigration-related case goals might your non-citizen clients want to pursue?

12. S TEP 2: A NALYZE THE I MMIGRATION I MPACT

13. S TAGES OF A NALYSIS Lawful Permanent Resident (or in other lawful status) Will conviction trigger deportability? Source of law: INA Will conviction trigger inadmissibility? Source of law: INA Will conviction preclude eligibility for relief? Source of law: INA Will conviction preclude eligibility for citizenship? Source of law: INA Undocumented Client already removable. Will client be enforcement priority? Source of policy: DHS memo Will conviction preclude eligibility for subsequent lawful status? Source of law: INA Will conviction preclude eligibility for deferred action? Source of policy: DHS memo, speculation

14. G ROUNDS OF R EMOVABILITY

15. W HAT Q UESTIONS A M I A NSWERING ? LPR Will conviction trigger deportability? Will client trigger inadmissibility? Will conviction preclude eligibility for relief? Will conviction preclude eligibility for citizenship? Undocumented Client already removable. Will client be enforcement priority? Will conviction preclude eligibility for subsequent lawful status? Will conviction preclude eligibility for deferred action?

16. D EPORTABILITY V. I NADMISSIBILITY 8 USC § 12278 USC § 1182 Grounds of Deportability apply if lawfully admitted Grounds of Inadmissibility apply if seeking “admission” Note: Includes LPRs returning to the United States Both incorporated into mandatory detention provisions and bars to relief Handout – Virginia Immigration Consequences of Criminal Convictions

17. H YPO : W HICH G ROUNDS OF R EMOVAL A PPLY ? T HOMAS, C HRISTOPHER & L AURA Thomas is from Honduras and has been an LPR for 15 years. He just visited Honduras for his grandmother’s funeral and is returning to the U.S. at Dulles. Laura crossed the U.S. / Mexico border without inspection in 2014. She has remained in the United States without permission since. Christopher entered the United States on a tourist visa in 2011. His permission to remain in the United States expired six months later. He is now married to a United States citizen.

18. T ERMS OF A RT : C ONVICTION, 8 USC § 1101( A )(48)(A) Juvenile delinquency not a conviction. Virginia first time offender with 1) not guilty plea and 2) no proffer or admission or facts sufficient not a conviction. Crespo v. Holder, 631 F.3d 130 (4th Cir. 2011). First time offender statutes: VA 18.2-57.3 (DV); VA 18.2-251 (drugs); VA 19.2-303.2 (misdemeanor property offenses). Alford and nolo contendere pleas ARE a conviction Withdrawal or vacatur only valid if based on procedural or substantive defect in plea. Matter of Pickering, 23 I&N Dec. 621 (2003). Consider with regard to 19.2-96 plea withdrawals. Handout – Primer

19. T ERMS OF A RT : S ENTENCE, 8 USC § 1101( A )(48)(B) Suspended time included in sentence for immigration purposes. Only exception to rule is when written into statute or not statutory. Examples: Ground of inadmissibility for multiple convictions “for which aggregate sentences to confinement were 5 years or more.” 8 USC § 1182(a)(2)(B). Statutory bar to finding of “good moral character” for those “confined, as a result of conviction, to a penal institution” for 180 days or more. 8 USC § 1101(f)(7). Enforcement priority for misdemeanor with 90 days or more of active jail time imposed as part of sentence. Consider VA 19.2-303 suspension of imposition of sentence when impossible to avoid a sentence that will trigger grounds of removability. See Epps v. Com., 59 Va. App. 71 (2011). Handout – Primer

20. T ERMS OF A RT : A GGRAVATED F ELONY Enumerated in INA at 8 USC § 1101(a)(43) Long list of categories of offenses Note: some but not all AF grounds require sentence of 1 year or more Handout - Primer

21. T ERMS OF A RT : C RIME I NVOLVING M ORAL T URPITUDE (CIMT) No statutory definition, defined by case law “Inherently base, vile or depraved” Level of mens rea required by statute is key Negligent and strict liability offenses: never CIMTs Reckless offenses: not CIMT unless aggravating factor (element of significant bodily harm) Specific intent offenses often CIMTs Handout - Primer

22. C RIMINAL G ROUNDS OF D EPORTABILITY Controlled substance offenses Any CSO 1 st marijuana offense exception for ≤ 30 g possession only Crimes involving moral turpitude (CIMT) Any 2 CIMTs 1 CIMT within 5 years of admission punishable by ≥ 1 year (Virginia = class 2 misdemeanor or less is safe) Firearm offenses Domestic Violence offenses Crime of domestic violence (COV defined at 8 USC § 16), stalking, any OP violation – civil or criminal finding Crimes against children Aggravated Felonies

23. C RIMINAL G ROUNDS OF I NADMISSIBILITY Controlled substance offenses Any CSO – no marijuana exception CIMT “Petty offense exception” for first CIMT offense if possible penalty doesn’t exceed 1 year and actual penalty doesn’t exceed 6 months Virginia = any CIMT misdemeanor (include class 1) with sentence ≤ 6 months Prostitution and commercialized vice Any 2 convictions w/ aggregate  5 yrs Reason to believe drug trafficker Includes “admissions” immigrant must have been given adequate definition of crime and essential elements in understandable terms

24. H YPO : H OW C AN CAIR C OALITION R ESOURCES H ELP ? C ARLOS Carlos was born in Honduras and entered the U.S. as a Lawful Permanent Resident in 2000. Scenario 1 : He is charged with 18.2-250.1 possession of marijuana. Offer = 18.2-251 first offender after guilty plea. What further information do you need to know? Conduct Step 2 Scenario 2: He is charged with 18.2-95 grand larceny. Offer is a guilty plea with five year sentence, all suspended but 6 months. What further information do you need to know? Conduct Step 2

25. ICE ENFORCEMENT PRIORITIES

26. W HAT Q UESTIONS A M I A NSWERING ? LPR Will conviction trigger deportability? Will conviction trigger inadmissibility? Will conviction preclude eligibility for relief? Will conviction preclude eligibility for citizenship? Undocumented Client already removable. Will client be enforcement priority? Will conviction preclude eligibility for subsequent lawful status? Will conviction preclude eligibility for deferred action?

27. ICE E NFORCEMENT P RIORITIES Announced November 2014, impact likelihood of detention and removal. DISCRETIONARY and subject to political whims. Priority 1 Gang involvement (does not require conviction) Felony conviction Aggravated felony conviction Priority 2 Any 3 or more misdemeanor convictions Any “significant” misdemeanor (any DUI and other delineated categories) Any misdemeanor for which sentenced to time in custody of 90 days or more (not including suspended sentence) Note: Minor traffic offenses, VA class 3 and 4 misdemeanors do not count as misdemeanors Priority 3 - Final removal order on or after 1/1/14

28. ICE D ETECTION : T RIGGERS Criminal justice system: Any time in custody Parole and probation Other triggers: International travel Applications for naturalization Application to renew green card Application for other immigration benefits including DAPA / DACA Home and community arrests

29. T EMPORARY P ROTECTED S TATUS (TPS) TPS is currently designated for: El Salvador Guinea Haiti Honduras Liberia Nepal Nicaragua Sierra Leone Somalia Sudan South Sudan Syria Yemen Bars = any felony or any 2 misdemeanors (excluding class 3 and 4 misdemeanors in Va.)

30. H YPO : C ARLOS, R EDUX Carlos was born in Honduras and entered the U.S. without inspection in 2000. He has three U.S. citizen children and a wife who is also undocumented. He has not ever been to immigration court. Scenario 1 : He is charged with 18.2-250.1 possession of marijuana. Offer = 18.2-251 first offender after guilty plea. What further information do you need to know? Conduct Step 2 Scenario 2: He is charged with 18.2-95 grand larceny. Offer is a guilty plea with five year sentence, all suspended but 6 months. What further information do you need to know? Conduct Step 2 Scenario 3 : He is charged with DUI. What further information do you need to know? Conduct Step 2

31. C RIMINAL B ARS TO R ELIEF FROM R EMOVAL OR A PPLICATION FOR B ENEFIT

32. W HAT Q UESTIONS A M I A NSWERING ? LPR Will conviction trigger deportability? Will conviction trigger inadmissibility? Will conviction preclude eligibility for relief? Will conviction preclude eligibility for citizenship? Undocumented Client already removable. Will client be enforcement priority? Will conviction preclude eligibility for subsequent lawful status? Will conviction preclude eligibility for deferred action?

33. R ELIEF FROM R EMOVAL AND B ARS TO R ELIEF Undocumented/ Out of Status Individuals Lawful Permanent Residents Refugees & Asylees Cancellation of Removal Bar = Aggravated Felony for LPRs Bar = “Good Moral Character” for non-LPRs 209(c) Waiver Bar = Drug Sale or PWID 212(h) Hardship Waiver Bar = Controlled Substance Offense Bar = Aggravated Felony (sometimes) Fear-Based Relief (Asylum, Withholding of Removal, protection under the Convention Against Torture) Bar = Particularly Serious Crime (Aggravated Felony) Humanitarian Visas T visa (trafficking victims) U visa (victims of enumerated crimes) Temporary Status: DACA / DAPA TPS DACA / DAPA Bars = Enforcement Priorities TPS Bar = 2 class 1 or 2 misdemeanors, 1 felony

34. DACA/DAPA B ARS (S EE PRACTICE A DV.) Bar to DAPA?Bar to DACA? Gang-related offensesYes – if convicted of offense for which element was active participation in a criminal street gang No per se bar for gang-related conviction but “gang membership” considered an indicator of threat to public safety Felony convictionYes (felony defined by sentencing jurisdiction) Yes (felony conviction defined as any offense punishable by > 1 year imprisonment) Aggravated felony conviction (see 8 U.S.C. § 1101(a)(43)) YesNo 3 or more misdemeanor convictions excluding non-DUI “minor” traffic offenses Yes (excluding state offenses for which essential element is immigration status) Yes (misdemeanor defined as any offense punishable by 6 days to 1 year jail time, so Virginia class 3 and 4 misdemeanors are excluded) “Significant” misdemeanors, including:  Domestic violence offense  Sexual abuse or exploitation  Burglary  Unlawful possession or use of firearm  Drug distribution or trafficking  Driving under influence YesYes (misdemeanor defined as any offense punishable by 6 days to 1 year jail time, so Virginia class 3 and 4 misdemeanors are excluded) Any misdemeanor with > 90 days or ≥ 90 days jail time (not including suspended sentences) Yes ( ≥ 90 days)Yes ( > 90 days) (misdemeanor defined as any offense punishable by 6 days to 1 year jail time, so Virginia class 3 and 4 misdemeanors are excluded) Juvenile delinquencies and expungements Unclear – to date, no guidance issued on this point Not automatic bar

35. A DJUSTMENT OF S TATUS AND N ATURALIZATION Adjustment of Status = affirmative or defensive Bar = grounds of inadmissibility Naturalization: Requirements: at least 18 years old; LPR for 5 years, in U.S. for at least half that time Bar = “good moral character” requirement for 5 years Remember: risk of naturalization application for deportable LPRs

36. I MPORTANCE OF D ISCRETION AND C ONTEXT IN R EMOVAL P ROCEEDINGS Discretion matters! Prosecutorial discretion Enforcement priorities Discretionary forms of relief (cancellation of removal, adjustment of status, hardship waivers) Sometimes even in naturalization applications! Practice tip = create the cleanest record possible

37. S TEP 4: D EFEND A GAINST I MMIGRATION C ONSEQUENCES

38. I MMIGRATION N EUTRAL D ISPOSITIONS It is hard to say that a plea is “safe” but some pleas are clearly more protective of immigration status than others The law governing the immigration impact of a conviction may depend on the jurisdiction where the case is heard … and that is sometimes hard to predict We base our analysis on Fourth Circuit law

39. F INDING THE I MMIGRATION N EUTRAL D ISPOSITION IN V IRGINIA Some arguably safe pleas: Disorderly conduct Specify 18.2-415(A) or if (B) or (C) specify alcohol Using abusive language 18.2-427 Specify language not abuse Trespass 18.2-119, potentially Unlawfully Entering Property 18.2-121 Notable recent Fourth Circuit findings (for now!): Virginia assault and battery ≠ CIMT or COV AF UUV ≠ CIMT or Theft AF Grand or petit larceny ≠ Theft AF ALERT: Circuit split at Supreme Court in Mathis v. U.S. Remember first time diversion statutes

40. H OW TO A VOID A GGRAVATED F ELONIES 364 days instead of 365 Theft, Crime of violence, Forgery, Obstruction/Perjury Practice tip : waive credit for time served, if possible Fraud AF: $10k loss to victim threshold Create affirmative record of less than $10k Fraud with less than $10k instead of theft Theft with less than 365 days instead of fraud Burglary Specify entering into vehicle rather than dwelling Specify entering without breaking Unlawful Wounding Leave record ambiguous as to method of causation of injury Remember other immigration consequences!

41. CIMT S First CIMT: First class 2, 3 or 4 misdemeanor CIMT is always safe First class 1 misdemeanor CIMT renders: Inadmissible if sentence > 6 months Deportable if within first 5 years of admission to U.S. First felony CIMT renders: Always inadmissible Deportable if within 5 years of admission Second CIMT, misdemeanor or felony: Renders client deportable and inadmissible Practice tip : If CIMT, plead to class 2 misdemeanor with more severe sentence

42. D RUG O FFENSES Controlled substances offenses come with harsh consequences! Remember f irst-time offender diversion program with a not guilty plea and no proffer/admission of facts sufficient avoids conviction Marijuana exception: Exception to grounds of deportability for first offense ≤ 30 grams possession only; no exception in grounds of inadmissibility Practice tip : LPRs can plead to one marijuana possession of 30 grams or less without facing removal, but cannot ever leave country Practice tip: affirmatively include amount of marijuana in record when 30 grams or less, otherwise omit weight from record Drug trafficking aggravated felony: any sale or intent to sell element Mellouli v. Lynch, 575 U.S ___ (2015) If drug offense unavoidable, keep name of drug out of record Paraphernalia offenses are better than drug offenses if they keep name of drug out of record

43. THE RECORD ( S HEPARD V US ) What’s part of the record? Charging document Record of conviction Plea allocution What’s not part of the record? Lab report Pre-sentencing report Probably prosecutor’s proffer (unless D stipulates to it) For more info see Shepard v US, 544 US 13 (2005)

44. T RAFFIC O FFENSES Traffic offenses generally do not have statutory immigration consequences but can be very important for other reasons Exceptions where traffic offenses may trigger grounds of removal: Hit and run, 46.2-894, 46.2-895 = CIMT Maiming while DUI, 18.2-51.4 = CIMT Driving while habitual offender, if DUI specified, 46.2-357(B)(2) may = CIMT Felony reckless driving, 46.2-852 may = CIMT DUI controlled substance other than alcohol may = CSO Unlicensed driving is not a “misdemeanor” for purposes of the enforcement priorities DUIs are risky! DUI is bar to DACA/DAPA eligibility and is enforcement priority Discretion: DUIs taken very seriously for bond and removal determinations May trigger misdemeanor bars 2 misdemeanor bar to TPS (class 3 and 4 misdemeanors excluded) 3 misdemeanor traffic offenses not considered “minor” trigger enforcement priorities and bar eligibility to DACA and DAPA (class 3 and 4 misdemeanors excluded for DACA, probably not for DAPA)

45. T ALKING TO P ROSECUTORS Remember relevant interests: Community safety Finality of plea Proportionality “I don’t want to do something for your client I wouldn’t do for a citizen.” Leveling the playing field – this is about avoiding disparate outcomes “It’s not my role to interfere in federal immigration laws.” SCOTUS said it was ok in Padilla

46. T ALKING TO P ROSECUTORS : US AND VA S UPREME C OURT S AYS ! Padilla v. Kentucky, 559 U.S. 356, 373 (2010): “Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties.” Zemene v. Clarke, No. 140719 (Va. Feb. 26, 2015): Attorney’s failure to engage Commonwealth on issues of immigration during plea bargaining contributed to finding that performance fell below standard of reasonableness

47. F INAL H YPO : J OSEPH Joseph was born in Haiti, entered the U.S. 15 years ago on a tourist visa and was given six months permission to remain. His mother is ill and still lives in Haiti. Priors: petit larceny Current charges: petit larceny, trespass, possession marijuana Question: What is client’s immigration status? Question: Is client deportable? Question: Will client be deported? Question: What is an immigration neutral plea?