Advocating For Noncitizen

Crime Survivors With

Criminal Convictions
______________________
ASISTA Webinar Presented By:
Ann Benson & Sonia Parras
June 13, 2011
This project is supported by Grant No. 2009TAAXK009 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.
Getting Help On Your Case
The Washington Defender Associations
Immigration Project is part of the ASISTA team
and available to provide case analysis and
problem solving to immigrant survivor advocates.

To contact WDAs Immigration Project for
assistance email
Jonathan Moore at jonathan@defensenet.org
Ann Benson at defendimmigrants@aol.com.

You can also call us at 206-623-4321.
Goals of Presentation
Provide an overview of primary crimes-
related provisions of immigration law

Outline key concepts in analyzing the
immigration consequences of criminal
convictions

Apply these understandings assist
advocates to more effectively represent
self-petitioners and U visa applicants with
criminal issues.
Overview of Presentation
Necessary tools

Crime-related immigration provisions

Convictions & sentences under the INA

Overview of the categorical analysis

Crimes & self-petitions

Crimes and U visa applications

Necessary Tools
Immigration & Nationality Act;

Copy of the criminal statute at issue;

Copy of the criminal record of
conviction;

Access to crim-imm resources
Necessary Tools
For assistance in obtaining the necessary criminal
documents see:

Step One In Representing Noncitizens With
Criminal History: Obtaining Relevant Information
About the Criminal Case by Ann Benson,
Directing Attorney of Washington Defender
Associations Immigration Project.

Published in Vol. X, Issue X of the ASISTA
newsletter and available at www.asista.org



Necessary Tools
Crim-Imm resources
Immigrantion Advocates Network
www.immigrationadvocates.org

Defending Immigrants In the Ninth Circuit, by
Kathy Brady et.al, and other materials from:
The Immigrant Legal Resource Center www.ilrc.org

Immigration Law and Crimes, by Dan
Kesselbrenner and Lory Rosenberg
National Immigration Project of the National Lawyers
Guild - www.nationalimmigraitonproject.org


Primary Crime-Related Provisions of
Immigration Law

Grounds of Inadmissibility

Grounds of Deportability

Aggravated Felony Definition

Good Moral Character Bars

Grounds of Inadmissibility - 8 USC
1182;INA 212 Apply To:

Any noncitizen seeking entry to US

Any noncitizen applying for lawful status

When ICE /DHS seeks to remove/deport
Undocumented persons who illegally
entered US

LPRs who apply for citizenship

Crime-Related Grounds of
Inadmissibility INA 212

Crimes of Moral Turpitude
EXCEPTION: juvenile offense
Commited before 18 yrs old and 5 years
before admission
EXCEPTION: One petty CIMT offense
Max possible sentence not > 1yr ;
actual sentence not > 6 months (including
time suspended)
Crime-Related Grounds of Inadmissibility

Controlled Substance Violations
Possible waiver for first-time simple
possession of 30g or less marijuana

2 or more convictions where aggregate
sentence is 5 years or more

Crime-Related Grounds of Inadmissibility
Conduct based grounds -
no conviction required

Reason to believe involvement in drug
trafficking, or received proceeds from
family member who is/was;
Determined to have physical/mental
disorder that poses threat;
Determined to be drug abuser;
Engaged in prostitution (but not johns).

Crime-Related Grounds of Inadmissibility
Review Questions
James is undocumented but married to
a U.S. citizen. Under what
circumstances do the inadmissibility
grounds apply to him?

How will a misdemeanor theft
conviction impact him?
A DV assault conviction?
A conviction for attempted possession
of cocaine?
Crime-Related Deportation
Grounds (8 USC 1227) Apply To:

Apply to noncitizens lawfully admitted:
LPRs, CPRs, asylees and refugees;
Nonimmigrant visa holders (even if expired)

Legal grounds for removing people with
lawful status/who were lawfully admitted
Do not apply:
To undocumented people (cancellation exception)
To persons applying for lawful status

Grounds of Deportability
One Crime Invovling Moral
Turpitude (CIMT)
Committed w/in 5 years of admission
Carry maximum POSSIBLE sentence of
1 year or more
Two CIMTs
Regardless of when committed or
sentence

Grounds of Deportability
Aggravated Felony (see next section)

Controlled substance violations
Exception: single offense for simple
possession of 30 grams or less

Firearms convictions

Ground of Deporation

Domestic Violence Offense
After Sept. 30, 1996
Must be crime of violence per 8 USC 16
Committed against person
w/whom D has qualifying relationship

Judicial determination of
Protection/no contact order violation
No conviction required


Grounds of Deportation
Review Questions
Cindy is an LPR convicted of
possession of a C/S. Do the
grounds of deportation apply to
her? Why? Which one? How
could it be possible that she
would not be deportable?
What if she is convicted of theft?
Under what circumstances would
she be deportable? Not
deportable?
Aggravated Felony Provision
8 USC 1101(a)(43
21 provisions under definition
incorportates hundreds of offenses
Triggers harshest consequences
Mandatory detention
Severe restrictions on due process
Ineligibility for many benefits/status
Virtually certain removal

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

AF Definition Applies to ALL
AF IS NOT ground of inadmissibility,
but non-LPRs w/AF may be subject
to expedited removal per 238(b)

AF IS a ground of deportation
Will trigger deportation for LPR/Refugee
w/bars on most avenues for relief

Aggravated Felonies
Selected Provisions

Murder, rape, Sexual Abuse of a Minor

Drug trafficking

Firearms offenses

Crimes of violence with one year sentence
Aggravated Felonies
Selected Provisions

Theft, Possession of stolen property,
burglary with one year sentence imposed

Crimes of fraud or deceit where loss =
$10k or more

Failure to appear

Attempt or conspiracy to commit any
listed offense
Aggravated Felonies Review Questions
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?

Selected Crime-related Good Moral
Character Bars INA 101(f)

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)
101(f)(8) - Aggravated felony
convictions

Convictions Under
Immigration Law
INA 101(a)(48)(A)

Formal judgment of guilt by court, or
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

Convictions Under
Immigration Law
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 requires admission of
guilt or stipulation to facts sufficient.
Even where successfully completed and dismissed


Convictions under
Immigration Law
These do NOT constitute convictions:

Juvenile disposition (in juvenile court);

Conviction on direct appeal of right;

Infractions


Post Conviction Relief
PCR vacations work if record shows
underlying legal defect not just 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)

Convictions Key Questions
Does the immigration statute
applicable in your case require a
conviction?

If so, based on the criminal records,
does your client have a conviction?
Sentence Definition 8 USC
1101(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 in
whole or in part.

Example:365 days imposed with 364 days suspended = 365
for immigration purposes.


Sentences

Certain misdemeanors with 365 day sentences
= aggravated felonies (e.g. theft and assault).

Exceptions:

Certain Bars triggered by amount of time served
regardless of actual sentence imposed
Example: GMC bar where 180 days served

Crimes Involving Moral Turpitude (CIMT)
Inadmissibility Ground Petty Offense Exception
Deportation Ground 1 CIMT
Definition of Sentence
INA 101(a)(48)(B)
Deferred Sentences do not count if no
actual time was imposed on judgment
(check your state laws);

Does not include any period of probation
or community custody UNLESS imposed
as condition of probation or b/c of
probation violation




Sentences Key Questions
Determine what the actual sentence
imposed is (regardless of time
suspended).

Determine if possible crime-related
immigration provisions are triggered
due to the sentence.


Convictions & Sentences Review
Questions
Angela is charged with misdemeanor
theft. Would the following be a
conviction? What are the sentencing
implications? What additional
information would you want?
12 month deferred adjudication agreement?
Guilty plea with 12 month deferred sentence?
Plea w/365 day sentence? 364 days?
Plea to attempted theft with 90 day sentence?

Analyzing The Impact
of A Conviction
Step 1: Existence of Conviction
Does not necessarily determine that it triggers
immigration penalty

Step 2: Identify possible crime-related
immigration provisions

Step 3: Use categorical analysis to determine if
this conviction triggers the immigration penalty

Step 4: If yes, identify possible waivers

Categorical Analysis
Analytical Process sanctioned by US
Supreme Court to determine whether
elements required for conviction under
state/federal criminal statute sufficiently
match the elements of the relevant crime-
related immigration provision

Example: Does this state misdemeanor
assault conviction constitute a crime of
violence under the agg felony (or DV
deportation ground)?
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.
Categorical Analysis Step One
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/caselaw (e.g.
crimes involving moral turpitude)
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.
Imperative to locate a copy of the
statute of conviction
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

Key is to focus on the ELEMENTS
required for conviction

Categorical Analysis Step One
Important to identify the elements
required for conviction under the
criminal statute

Look to criminal statute and caselaw
interpreting it to determine the
elements required for conviction
Categorical Analysis
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:
1. it includes multiple offenses
2. multiple ways to commit the offense

Only some of which have elements that match
the generic definition
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

Compare these specific elements to generic
definition

If ROC doesnt establish which part of criminal
statute was basis for conviction, then it doesnt
trigger immigration provision
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);
The judgment of conviction;
Jury instructions;
A signed guilty plea or a written plea agreement;
The transcript from the plea proceedings; and
Sentence & transcript from sentencing hearing.
Record of Conviction DOES NOT INCLUDE:

Prosecutors remarks during the hearing;
Police reports;
The affidavit of probable cause;
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);
A court docket summary prepared by
clerical staff;
Information from a co-defendants case.
CONT.



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.
Categorical Analysis Step Two
Defendants plea statement most
important document

Charging papers or judgment &
sentence alone are insufficient to
establish elements of conviction
where statute is overbroad or
divisible
Categorical Analysis
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
Categorical Analysis Step Two
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 caselaw 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).
Crimes and VAWA Self-Petitions
Always two steps:

1. Is applicant statutorily eligible?

2. Does applicant warrant a favorable
exercise of discretion?
Crimes & VAWA Self-Petitions
Does the conviction/conduct trigger
any GMC statutory bars?
101(a)(3) 212(a)(2)s inadmissibility
grounds?
101(a)(7) served 180 days in jail?
101(a)(8) aggravated felony
conviction?
Crimes & VAWA Self-Petitions
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?
Crimes & VAWA Self-Petitions
204(a)(1)(C) Waiver for GMC Bars

Is a waiver available for this conviction
for purposes of determining
inadmissibility or deportability?

Is the conduct/conviction connected to
the abuse?

Crimes & VAWA Self-Petitions
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)


Crimes & VAWA Self-Petitions
In addition to establishing statutory
eligibility for GMC applicant must
also establish that she warrants
favorable exercise of discretion.
Crimes & VAWA Adjustment
Does conviction/conduct trigger any
statutory grounds of inadmissibility
under 212(a)(2)?

Can you use categorical analysis to
argue that it does not?

If not, can she qualify for
212(h)(1)(C) waiver?
Crimes & VAWA Adjustment
212(h)(1)(C)
DOES WAIVE:
CIMT offenses
First time simple possession < 30g marijuana
Prostitution (note limitations)

DOES NOT WAIVE:
Any other type of drug offense (no waivers)
8 CFR 2127(d) limitation on exercise of discretion
where violent or dangerous offense

Crimes & U Visa Applicants
Always two steps:

1. Is applicant statutorily eligible?

2. Does applicant warrant a favorable
exercise of discretion?
Crimes & U Visa Applicants

Does conviction/conduct trigger any
crime-related bars under
212(a)(2)s grounds of
inadmissibility?
If so, is she eligible for 212(h)
waiver?
Crimes & U Visa Applicants
If not, does she qualify for
212(d)(14) waiver?

Gives AG discretion to waive any ground
of inadmissibility under 212(a)
including crimes grounds at (a)(2)
Exception: nazi persecutors and torturers