Representing the Non-Citizen Defendant

Emily DatnoffMaryland Immigrant Rights CoalitionOSI-Baltimore Community Fellow

Maryland Office of the Public Defender

Goals of this TrainingHelp you fulfill your professional responsibility under Padilla v. Ky.

Help you understand important factors in determining immigration consequences for an individual client.

Give you some tools and resources to do so.NOT to turn you into an immigration attorney

Help you identify some strategies for avoiding or minimizing harsh immigration consequences.

Padilla v. Kentucky599 U.S. ____ (March 31, 2010)Mr. PadillaLawful permanent resident of the US for 40+ yearsPled to possession with intent to distribute marijuanaafter his defense counsel advised him he did not have to worry about immigration status because he had been in the country so long.

Promptly put into deportation proceedings as an aggravated felon (drug trafficking).

U.S. Supreme Court:Sixth Amendment guarantee of effective assistance of counsel requires defense counsel to advise about immigration consequences.

Silence is not an option

Failure to advise satisfies the first prong of Stricklands ineffective assistance test

Padilla is Retroactive in MD

The Maryland Court of Appeals in Denisyuk v. State held that Padilla applies retroactively to all pleas entered after the effective date of the enactment of the Illegal Immigrant Reform and Responsibility Act of 1996.

Recent U.S. Supreme Court DecisionsMissouri v. Frye (Mar. 21, 2012) held that the Sixth Amendment guarantee of effective assistance of counsel requires defense counsel to communicate formal offers from the prosecution to accept a plea on terms and conditions that my be favorable to the accused.

In Lafler v. Anthony (Mar. 21, 2012) the parties agreed that defense counsel was ineffective when he advised the client to reject the plea offer on the grounds that he could not be convicted at trial.

What does this mean?When States offers a plea, defense counsel should know the immigration consequences of the criminal charges to competently advise clients to (1) reject offer;(2) accept offer; or(3) proceed to trial.

Note Lafler states that a strategic decision to proceed to trial is not necessarily deficient performance

Remind me again why this is my job?consequences are so severecan be a life sentence for shoplifting with suspended sentencepenalties are automatic and inflexibleDeportation, disqualification from green card or citizenship, criminal penalties for reentryIn Immigration Court, its too late!

Criminal defense counsel is the only one in a position to make a difference.

Depends on the individuals circumstancesSome convictions and/or sentences are worse than othersCreative strategizing CAN minimize adverse consequences

Effective Assistance of Counsel

To provide effective assistance of counsel, you must help your client avoid adverse immigration consequences and find a safe(r) plea.

The only way to do that is to obtain the necessary information to assess the immigration consequences. immigration statusprior criminal historypotential eligibility for immigration relief(1) Spouse? USC or LPR?(2) Children? USC or LPR?(3) Parents? USC or LPR?(4) When did you enter the U.S.?(5) Do you fear returning to your country

Two clients arrested in an allegedly stolen car with a firearm and a small amount of marijuana.

Charged with:Theft of a motor vehicle, Md Crim 7-105Possession of marijuana, Md Crim 5-601(a)(1)Carrying handgun w/o permit, Md Crim 4-203

What is a safe plea for them?

THERES NO WAY TO KNOW, because you dont have enough information.

For a non-citizen client, you must know:immigration statusprior criminal historypotential eligibility for immigration relief(1) Spouse? USC or LPR?(2) Children? USC or LPR?(3) Parents? USC or LPR?(4) When did you enter the U.S.?(5) Do you fear returning to your country?

Early Identification Is Key!A conviction from any court no matter if its appealable subjects the client to deportation proceedings.

Identify the noncitizen defendant at intake and obtain the necessary information for an immigration referral.

Submit the referral at least two weeks before the trial date.

Inadmissibility (for those applying for LPR or reentry)v.Deportability (for those with status, esp. LPR)v.Ineligibility for citizenship(disqualified from showing good moral character)

See Immigrant Defense Projects Summary Checklist

Mandatory detention during removal proceedingsCriminal penalties for reentry after deportationUp to 20 years for aggravated felonBars to reentry permanent banishment for aggravated felons

Even for undocumented clients

Ask EVERYONE where they were born.

Explain why you are asking, e.g., convictions directly affect immigration status Look at and copy the documents.I-94 card or approval noticeI-551 (green card)Stamp in passportWork permit is not conclusive

CitizenLPR, lawful permanent residentTemporary non-immigrantvisitors, students, some workers, circus performersAsylees and refugeesTemporary protected status (TPS)NACARA eligible (Central Americans)Applicants for statusUndocumented (Entered Without Inspection)Overstay (40% of those here illegally)With final order of removal

S visa snitch visa

T visa victim of traffickingProstitution, other charges

U visa victim of certain (violent) crimesOften used in domestic violence casesAlways ask States Atty if the victim is pursuing a U visa good evidence of bias!

Get and review your clients rap sheet.

Very important because it can affect both The consequences of a conviction andEligibility for possible immigration relief

Analyzing immigration consequences is more complicated than you think! There is no logic to it at all!

Your client is a non-citizen. She is accused of shoplifting an expensive sweater and is charged with theft under $1000.

Can she plead to 7-104?

Theft with a sentence of 1 yr or more = aggravated felonyTheft is a Crime Involving Moral Turpitude (CIMT)

Your client has a Green Card (LPR)If the sentence is > 1 yr, shes a GONER!If she has been in the U.S. for more than 5 years, she will NOT be subject to deportation if:the sentence < 1 yr, unless she has a prior CIMT (prior theft)If she has been in the U.S. for less than 5 years, she will be subject to deportation regardless of the length of the sentence.If she plans on traveling outside the U.S., she will be subject to deportation upon her return regardless of the length of the sentence. But, she may be eligible for a waiver.Your client is applying for a Green card.Your client will be DENIED, because theft is a CIMT!But, your client may be eligible for a waiver to waive the ground of inadmissibility based on the CIMT.

It depends on her immigration status!

Avoiding Consequences Under Imm Law

Avoid deportabilityLPRs (green card holder)

Avoid inadmissibilityApplying for immigration relief LPRs who may travel outside US

Avoid disqualification from good moral character LPRs applying for citizenship

Words sometimes have surprising meanings in Immigration Land.

Immigration law treats convictions in a very formalistic way.

INA 101(a)(48)(A) [8 USC 1101(a)(48)(A)]IDP Summary Checklist

EITHER:A formal judgment of guilt or

(1) An admission or finding of guilt or facts that would warrant finding of guilt AND (2) the imposition of some punishment, penalty or restraint on liberty

Including probation or a fine.

A term of imprisonment includes the incarceration ordered by the court

regardless of any suspension

1 year suspended = 1 year served

Avoid a conviction, if possible.

Avoid a conviction with the particular consequences your client needs to avoid.What are the likely effects of the proposed plea?Take clients criminal history into accountIs there a better alternative plea?

Would negotiating the sentence or other factors help? Consecutive vs. concurrent

Aggravated Felonies

Controlled Substance Offenses

Crimes Involving Moral Turpitude

Crimes of Domestic Violence

Firearm Offenses

May be neither a felony nor aggravated

Most draconian consequences:Disqualified from almost everything foreverMandatory detentionAdministrative removal

Listed by statute at 8 USC 1101(a)(43).

Some subsections have triggers which can be avoided; some do notActual or maximum sentencesAmount of loss to victim

Includes attempts and conspiracy to commit any aggravated felony

Include:Drug trafficking Anything with even the intent to distributeREGARDLESS of sentenceDoes NOT include possession (IDP checklist)

Crimes of violence (w/ sentence of 365 days)May include 2nd degree assault

Theft and burglary offenses (w/ 365 day sentence)

Also include:Offenses involving fraud and deceit (w/ more than $10,000 in loss to the victims)

Forgery, counterfeiting

Alien smuggling

FTA on felony charge with 2 year potential sentence

etc, etc.

Aggravated Felonies (cont.)Crimes of ViolenceAn Aggravated Felony crime of violence is defined by 18 U.S.C. 16, and requires the intentional use of physical force against the person or property of another

An offense involving elements of recklessness or negligence, without specific intent, is not a crime of violence, and thus not an Agg Fel

Avoid specific intent crime = avoid Agg fel

Crime is malum in se, inherently base or vileOften turns on intentMens rea can include recklessness

Law is currently very muddled, but court can look at the actual facts of the conviction

Includes attempts or conspiracy to commit any CIMTMay also be an aggravated felonyException for first offense petty offense

Any crime relating to a controlled substanceVery broad includes paraphernalia

Exception for clients with immigration status: simple possession of 30 grams or less of marijuana

May also be an aggravated felony and CIMT if more than simple possession.Addiction itself even without a conviction can have consequences

Crime of violence against a member of family and/or household entitled to protection

Simple assault and battery are not crimes of violence

Also deportable offenses:Violation of protective orderChild abuse, neglect, abandonmentStalking

Just about any offense involving a firearm in any way

Leads to removability

Does NOT result in inadmissibility (may be a better plea for someone who will be applying for a green card because it preserves that possibility)

When Do Traffic Crimes Matter?If your client has TPS or is eligible for TPS, then traffic crimes matter!Any two misdemeanors make a client ineligible for TPS DWOL, Driving on Suspended, DUI, etc.

A DUI (impaired by controlled substance) is a controlled substance offense, a deportable offense.

A conviction for Driving on Suspended while committing a DUI is a crime involving moral turpitude.

The Agreement of Facts Matters Generally, the client should not plead to the facts as stated in the statement of charges!!!

WHY???Because with certain convictions, the Immigration Judge can review the record of conviction to determine whether the crime is an aggravated felony or CIMT.E.g., 2d Assault, theft, fraud crimes, carrying a dangerous weapon, and many more

What is the Record of Conviction?Record of Conviction includes:Statutory definition of the crimeStatement of Charges Jury instructions (if trial) Plea agreement Admissions at colloquies Any facts found by judge to which D agrees

Record of Conviction does not include:Presentence reportStatement of Probable Cause (that has not been incorporated into SOC)Police Reports Prosecutor statementsDropped charges Trial testimony

The art of negotiation:

Why should a states atty do something special for your client just because s/hes not a citizen?Get to know your clientEmphasize the equities of the case

Avoid a conviction:

Get a conditional stet, Agreement to dismiss with community service, Keep your young client in juvenile court, Continue case until client pays restitution, etc.

Waive credit for time served

Agree to serving actual time rather than suspending it

Stack consecutive sentences to various charges to avoid any one sentence 1 year

Agree to a longer period of probation and shorter incarceration

Trial Tactics District CourtAsk for postponement

Pray a Jury Trial

Trial Tactics Circuit CourtDismissal of de novo appeals DO NOT let the judge dismiss the appeal for FTA because the client was in DHS custody. State v. Stone, 344 Md. 97, 106 (1996) (error to dismiss a criminal defendants appeal from the District Court to the Circuit Court when the trial court has information that the appellants failure to appear was neither willful nor voluntary.) Remind the State that they have the burden of bringing the client to trial.

OPD Immigration Support email address

Lisa Marquardt of Collateral Review Divisionlmarquardt@opd.state.md.us410-767-4194

Emily Datnoffedatnoff@opd.state.md.us410-767-9854

*************IDP checklist:LPR worry mainly about removabilityConviction is not an aggravated felony (sentence < 1 yr)Theft conviction IS a CIMT, but client has been LPR for more than 5 years, so not deportableUNLESS she has a prior CIMT (such as prior theft) 2nd CIMT makes her deportable.

*************Defined in case law.****