crimmigration: crimes and immigration consequences · 2019-10-22 · crimes and immigration...
TRANSCRIPT
CRIMMIGRATION:
CRIMES AND IMMIGRATION
CONSEQUENCES Advising Clients about the Consequences of Common Illinois Crimes
Jasmine McGee
Senior Attorney, September 2016
THE IMMIGRATION PROJECT The Immigration Project is a legal aid organization based in Normal, Illinois, with a satellite office in Champaign. We provide direct legal services for immigrants residing in Central and Southern Illinois. The Immigration Project collaborates and partners with numerous community based organizations to serve the 85 counties in Central and Southern Illinois. We travel to meet with clients in Peoria, Kankakee, Carbondale, and Springfield. The Immigration Project provides four types of basic immigration legal assistance: Regional Immigration Information Clinics; Immigrant Victims of Violence Services; Citizenship Application Support; and General Immigration Application Support (Family Unification, Asylum, etc.).
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McLean County Foreign Born
Population
From 2000 to 2010 the Foreign Born Population in
Bloomington, Illinois has grown from 5352 to
10,242
Undocumented Population Estimates: 2595
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Overview of Presentation:
What you need to know about immigration in general
Defining Immigration Consequences
Common Illinois Crimes and Consequences
Examples and Questions
WHAT YOU NEED TO
KNOW ABOUT
IMMIGRATION IN
GENERAL
Immigration Agencies DHS not INS - As of 2003, no longer INS now DHS
(Department of Homeland Security)
USCIS- Citizenship and Immigration Services
ICE – Immigration and Customs Enforcement ERO - Enforcement and Removal Operations
HSI – Homeland Security Investigations
CBP (Custom and Border Protection) – Air, land and sea
EOIR = IMMIGRATION COURT (DOJ AND ATTORNEY GENERAL)
Immigration Status
Undocumented Limbo Status: TPS or DACA
Nonimmigrant status
Permanent Resident/Green
Card
Naturalized U.S. Citizen
How do you become a
Lawful/Legal Permanent
Resident?
FAMILY WORK OTHER - Asylum
Refugee; U Visa;
Diversity Visa Lottery;
SIJS
Good Questions to Ask Any
Foreign Born/Non Citizen Client
Date of entry?
Manner of entry? Entered with documents or without?
If they have status, how do they have status? Ask to see LPR Card/Green Card
Employment Authorization Card
LAWFUL PERMANENT RESIDENT CARD
FINDING THE A NUMBER and DATE OF
RESIDENCY
DEFINING
IMMIGRATION
CONSEQUENCES
PADILLA V. KENTUCKY
In Padilla, the Supreme Court ruled that the Sixth Amendment requires defense counsel to advise defendants of possible immigration consequences associated with a plea. Failure to provide such advice constitutes ineffective assistance of counsel.
Padilla v. Kentucky, 559 U.S. 356 (2010)
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EXAMPLE OF CLIENTS:
H1B – hopes one day to be an LPR
U VISA - hopes one day to be an LPR
UNDOCUMENTED –hopes to get DACA
LPR hopes to permanently remain in US/
become a USC
Is it a conviction? Category of
crime Consequence
ANALYSIS
What is a “Conviction”? :
Immigration defines “conviction” in the Immigration
and Nationality Act - INA 101(a)(48)(A):
The term "conviction" means, with respect to an alien, a
formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-
(i) a judge or jury has found the alien guilty or the alien
has entered a plea of guilty or nolo contendere or has
admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien's liberty to be imposed.
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What is a “Conviction”? :
NON-CONVICTIONS:
Acquittals (Finding of Not Guilty) Nolle Prosequi/Dismissal “No paper”; “No information”; declining charges Convictions in proceedings that do not require proof beyond a
reasonable doubt or otherwise comport with certain minimum standards.
PRE-TRIAL DIVERSION - Admission to State’s Attorney does not qualify as conviction, if no formal admission in court
Juvenile Delinquency Vacated pursuant to Padilla
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What is a “Conviction”?
CONVICTIONS Deferred Judgment? YES
Expunged crime? YES
Court Supervision? YES
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Classification of Crimes
under the INA
Aggravated Felony, INA 101(a)(43)
Crimes of Domestic Violence
Crimes of Child Abuse/Against Children
Crimes Involving Moral Turpitude (CIMT)
Controlled Substance Offenses
Firearm Offenses
Money Laundering
Alien Smuggling
Prostitution and Commercialized Vice
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Consequences: Deportable vs.
Inadmissible vs. Ineligible
DEPORTABLE/REMOVABLE – INA 237
INADMISSIBLE - INA 212
INELIGIBLE
Good Moral Character bars under INA 101(f)
Significant Misdemeanors
STATUS TERMINATED/REVOKED
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REMOVABLE/DEPORTABLE
CIMT within 5 years of admission
2 CIMTS
Aggravated Felony
Failure to Register as Sex Offender
Crime of DV/Stalking/Child
Abuse/Violation of an Order of Protection
Drug Offenses
Firearm Offenses
INADMISSIBILITY
INA 212
An “Admission” of guilt can sometimes be
enough – CIMT and Drug Offenses
GREEN Card Holder Returning from a trip
abroad can be found to be inadmissible
and subject to deportation.
Convictions Affecting
Admissibility and GMC:
Crimes of Moral Turpitude: Convicted of or admits to essential elements of 1 or more crimes of moral turpitude
Drug Offenses: Violated or admits to essential elements of
violating any controlled substance law (except simple possession of 30g or less of marijuana)
Reason to Believe a Drug Trafficker 2 or more offenses where the aggregate sentence actually
imposed was 5 or more years Prostitution and Commercialized Vice Crimes
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Good Moral Character For naturalization, for example, must be a person of “good moral
character” during the statutory period (3 or 5 years). For Cancellation of Removal for NON-LPR, must be a person of GMC for 10 years
The INA does not define a person of good moral character but lays out statutory and regulatory bars to a finding of good moral character in INA 101(f) and 8 CFR 316:
Habitual drunkard (chronic alcoholic), Prostitution and commercialized vice Alien Smuggling Criminal convictions (or admissions) and controlled substance traffickers Polygamy Income derived principally from illegal gambling, Given false testimony for purposes of obtaining immigration benefits –
statement must be intentional and under oath Confined to a penal institution for 180 days or more Convicted of aggravated felony on or after November 29, 1990 Convicted of murder Engaged in persecution No outstanding order of removal
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COMMON CRIMES
AND IMMIGRATION
CONSEQUENCES
Assessing Immigration Consequences “A criminal defense lawyer representing a foreign-born defendant will want to understand how to analyze the criminal statue charged, recognize where there is divisibility, and mold a criminal record to avoid certain phrases and the more serious statutory elements.”
Mary E. Kramer, Immigration Consequences of Criminal Activity, 6th Edition (2015)
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Crimes Against a Person
Battery 720 ILCS 5/12-3 Mens Rea - Knowingly
1) Causes Bodily Harm “Causes Bodily Harm” requires proving physical force satisfying
18 USC 16(a)
2) Makes Physical Contact Minimum conduct does not = "inherently base, vile, or depraved,"
or that it would "shock the public's conscience."
Domestic Violence
Misdemeanor vs. Felony
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Crimes Against Property
Theft 720 ILCS 5/16-1(a) Mens Rea: Knowingly
Elements: taking and permanently depriving owner of use or benefit
Factors affecting consequences: Misdemeanor
Felony 1 year sentence imposed (even if suspended)
Amount of loss to the victim
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Crimes Against Person/Property Residential Trespass – 720 ILCS 5/19-4 Mens rea: Knowingly/Without Authority
Conduct: Enters or remains
Criminal Trespass to real property 720 ILCS 5/21-3(a)(3.5) Conduct: presents false documents or falsely represents his or her
identity
Home Invasion, 720 ILCS 5/12-11 Mens Rea: knowingly
Conduct: Enters &
uses force or threatens the imminent use of force
Intentionally causes any injury
Personally discharges a firearm & causes great bodily harm ...
Element: Deadly Weapon/Firearm
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Firearm Offenses INA 237
(C) Certain firearm offenses.-Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable.
720 ILCS 5/24-1.5, Reckless Discharge of a Firearm Beware of other crimes where firearm is an essential
element of the crime.
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Controlled Substance/Drug
Crimes POSSESSION OFFENSES
Misdemeanor Possession of Cannabis for Personal Use (less than 30 grams), 720 ILCS 550/4(a)
Possession of a Controlled Substance 720 ILCS 570
Controlled Substances – Crack Cocaine (> 5 grams) or Flunitrazepam
Controlled Substance - Cocaine and Heroin
Possession of Drug Paraphernalia, 720 ILCS 600/3.5
DRUG TRAFFICKING OFFENSES
Manufacture, Delivery or Possession with Intent to Deliver Cannabis or Controlled Substance, 720 ILCS 550/5
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DUI 625 ILCS 5/11-501(a) Nonimmigrant and Arrest
9 FAM 403.11-3(B)(U) – DUI Related Arrests
CIMT? Simple DUI does not normally involve moral turpitude.
Need culpable mental state/mens rea. An aggravated DUI statute which requires the offender
to know that he or she is not permitted to drive under any circumstances is a CIMT. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999). (But this may no longer be a CIMT.)
DACA/DAPA
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OTHER CRIMES
Violation of an Order of Protection
Child Abuse/Child Endangerment
Fraud Crimes Element – Intent to Defraud
Possession of Fraudulent Identification without use
Other Traffic Offenses
Prostitution Crimes
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EXAMPLE Javier is 16 and arrested for possession of 15
grams of marijuana. He tells you that he is
undocumented but has DACA.
EXAMPLE #2 Maria is a lawful permanent resident and
is arrested for shoplifting.
QUESTIONS:
When did she become an LPR?
Felony or misdemeanor?
First offense?
Second Offense?
QUESTIONS
Who’s Who IP Staff Contact information
Jasmine McGee,
Senior Staff Attorney
Resources Mary Kramer
Immigrant Defense Project, http://www.immdefense.org/category/resources-for-criminal-defenders/
National Immigration Project – advisories and reference charts, https://www.nationalimmigrationproject.org/charts.html
Norton Tooby,Free Resources, http://nortontooby.com/resources/free
Defending Non-Citizens in Illinois, Indiana, and Wisconsin (2009), https://www.immigrantjustice.org/sites/immigrantjustice.org/files/Defenders%20Manual%20-%20Chapter%203%20FINAL3.pdf
FOR ANY FOREIGN BORN RESIDENT
REQUIRING A LEGAL CONSULTATION, CALL
MONDAYS AND WEDNESDAYS 10-4. 309-829-
8703.