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

jmcgee@immigrationproject.org

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.