Post on 24-Feb-2016
description
transcript
Problems facing Non-Citizens in Court
Presented by: Mira Mdivani
Angela WilliamsStephen Blower
Part I: Cr-immigration: How to Comply
with Padilla without Losing
Your Mind!
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?
Are you a Naturalized USC?
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:
There may be serious immigration consequences
to this conviction, you should seek advice of an
immigration attorney
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…..Chaidez vs. US
(no. 11-820 Feb. 20, 2013)
PADILLA NOT RETROACTIVE
Part II: Civil Court
The Landmines Continue
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