Crimmigration: Crimes And Immigration Consequences - Mclean County Bar .

CRIMMIGRATION:CRIMES ANDIMMIGRATIONCONSEQUENCESAdvising Clients about theConsequences of CommonIllinois CrimesJasmine McGeeSenior Attorney, September 2016

THE IMMIGRATION PROJECTThe Immigration Project is a legal aid organization based inNormal, Illinois, with a satellite office in Champaign. Weprovide direct legal services for immigrants residing in Centraland Southern Illinois.The Immigration Project collaborates and partners withnumerous community based organizations to serve the 85counties in Central and Southern Illinois. We travel to meet withclients in Peoria, Kankakee, Carbondale, and Springfield.The Immigration Project provides four types of basicimmigration legal assistance: Regional Immigration InformationClinics; Immigrant Victims of Violence Services; CitizenshipApplication Support; and General Immigration ApplicationSupport (Family Unification, Asylum, etc.).

McLean County Foreign BornPopulation From2000 to 2010 the Foreign Born Population inBloomington, Illinois has grown from 5352 to10,242 Undocumented Population Estimates: 25953

Overview of Presentation: What you need to know about immigration ingeneral Defining Immigration Consequences Common Illinois Crimes and Consequences Examples and Questions4

WHAT YOU NEED TOKNOW ABOUTIMMIGRATION INGENERAL

Immigration Agencies DHS not INS - As of 2003, no longer INS now DHS USCIS- Citizenship and Immigration ServicesICE – Immigration and Customs Enforcement (Department of Homeland Security) ERO - Enforcement and Removal OperationsHSI – Homeland Security InvestigationsCBP (Custom and Border Protection) – Air,land and seaEOIR IMMIGRATION COURT (DOJ ANDATTORNEY GENERAL)

Immigration StatusUndocumentedLimbo Status:TPS or aturalized U.S.Citizen

How do you become aLawful/Legal PermanentResident?FAMILYWORKOTHER AsylumRefugee;U Visa;Diversity VisaLottery;SIJS

Good Questions to Ask AnyForeign Born/Non Citizen Client Dateof entry? Manner of entry? Entered with documents orwithout? If they have status, how do they have status?Ask to see LPR Card/Green CardEmployment Authorization Card

LAWFUL PERMANENT RESIDENT CARD

FINDING THE A NUMBER and DATE OFRESIDENCY

DEFININGIMMIGRATIONCONSEQUENCES

13PADILLA V. KENTUCKY In Padilla, the Supreme Court ruled that the Sixth Amendment requiresdefense counsel to advise defendants of possible immigrationconsequences associated with a plea. Failure to provide such adviceconstitutes ineffective assistance of counsel.Padilla v. Kentucky, 559 U.S. 356 (2010)

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 USC14

ANALYSISIs it a conviction?Category ofcrimeConsequence

16What is a “Conviction”?: Immigration defines “conviction” in the Immigrationand Nationality Act - INA 101(a)(48)(A): Theterm "conviction" means, with respect to an alien, aformal judgment of guilt of the alien entered by a courtor, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alienhas entered a plea of guilty or nolo contendere or hasadmitted 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.

17What is a “Conviction”?: NON-CONVICTIONS: Acquittals (Finding of Not Guilty)Nolle Prosequi/Dismissal“No paper”; “No information”; declining chargesConvictions in proceedings that do not require proof beyond areasonable doubt or otherwise comport with certain minimumstandards.PRE-TRIAL DIVERSION - Admission to State’s Attorney does notqualify as conviction, if no formal admission in court Juvenile Delinquency Vacated pursuant to Padilla

18What is a “Conviction”? CONVICTIONS Deferred Judgment? YES Expunged crime? YES Court Supervision? YES

19Classification of Crimesunder the INA AggravatedFelony, 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

20Consequences: Deportable vs.Inadmissible vs. Ineligible DEPORTABLE/REMOVABLE INADMISSIBLE– INA 237- INA 212 INELIGIBLE Good Moral Character bars under INA 101(f)Significant Misdemeanors STATUSTERMINATED/REVOKED

REMOVABLE/DEPORTABLE CIMTwithin 5 years of admission 2 CIMTS Aggravated Felony Failure to Register as Sex Offender Crime of DV/Stalking/ChildAbuse/Violation of an Order of Protection Drug Offenses Firearm Offenses

INADMISSIBILITY INA212 An “Admission” of guilt can sometimes beenough – CIMT and Drug Offenses GREEN Card Holder Returning from a tripabroad can be found to be inadmissibleand subject to deportation.

23Convictions AffectingAdmissibility and GMC: Crimes of Moral Turpitude: Convicted of or admits to essentialelements of 1 or more crimes of moral turpitude Drug Offenses: Violated or admits to essential elements ofviolating any controlled substance law (except simple possessionof 30g or less of marijuana) Reason to Believe a Drug Trafficker 2 or more offenses where the aggregate sentence actuallyimposed was 5 or more years Prostitution and Commercialized Vice Crimes

24Good Moral Character For naturalization, for example, must be a person of “good moralcharacter” during the statutory period (3 or 5 years). For Cancellationof Removal for NON-LPR, must be a person of GMC for 10 yearsThe INA does not define a person of good moral character but lays outstatutory and regulatory bars to a finding of good moral characterin INA 101(f) and 8 CFR 316: Habitual drunkard (chronic alcoholic),Prostitution and commercialized viceAlien SmugglingCriminal convictions (or admissions) and controlled substance traffickersPolygamyIncome derived principally from illegal gambling,Given false testimony for purposes of obtaining immigration benefits –statement must be intentional and under oathConfined to a penal institution for 180 days or moreConvicted of aggravated felony on or after November 29, 1990Convicted of murderEngaged in persecutionNo outstanding order of removal

COMMON CRIMESAND IMMIGRATIONCONSEQUENCES

26Assessing Immigration Consequences“A criminal defense lawyer representing a foreign-borndefendant will want to understand how to analyze thecriminal statue charged, recognize where there isdivisibility, and mold a criminal record to avoid certainphrases and the more serious statutory elements.”Mary E. Kramer, Immigration Consequences ofCriminal Activity, 6th Edition (2015)

27Crimes Against a Person Battery 720 ILCS 5/12-3 Mens Rea - Knowingly1) Causes Bodily Harm 2) Makes Physical Contact “Causes Bodily Harm” requires proving physical force satisfying18 USC 16(a)Minimum conduct does not "inherently base, vile, or depraved,"or that it would "shock the public's conscience."Domestic ViolenceMisdemeanor vs. Felony

28Crimes Against Property Theft 720 ILCS 5/16-1(a) Mens Rea: KnowinglyElements: taking and permanently depriving owner of use orbenefitFactors affecting consequences: MisdemeanorFelony 1 year sentence imposed (even if suspended)Amount of loss to the victim

29Crimes Against Person/Property Residential Trespass – 720 ILCS Mens rea: Knowingly/Without Authority Conduct: Enters or remains5/19-4 Criminal Trespass to real property 720 ILCS 5/21-3(a)(3.5) Conduct: presents false documents or falsely represents his or heridentity 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

30Firearm Offenses INA 237 (C) Certain firearm offenses.-Any alien who at any timeafter admission is convicted under any law ofpurchasing, selling, offering for sale, exchanging, using,owning, possessing, or carrying, or of attempting orconspiring to purchase, sell, offer for sale, exchange,use, own, possess, or carry, any weapon, part, oraccessory which is a firearm or destructive device (asdefined 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 essentialelement of the crime.

31Controlled Substance/DrugCrimes POSSESSION OFFENSES Misdemeanor Possession of Cannabis for Personal Use (lessthan 30 grams), 720 ILCS 550/4(a) Possession of a Controlled Substance 720 ILCS 570 Controlled Substances – Crack Cocaine ( 5 grams) orFlunitrazepamControlled Substance - Cocaine and HeroinPossession of Drug Paraphernalia, 720 ILCS 600/3.5DRUG TRAFFICKING OFFENSES Manufacture, Delivery or Possession with Intent to Deliver Cannabisor Controlled Substance, 720 ILCS 550/5

32DUI 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 offenderto know that he or she is not permitted to drive underany circumstances is a CIMT. Matter of Lopez-Meza, 22I&N Dec. 1188 (BIA 1999). (But this may no longer bea CIMT.) DACA/DAPA

33OTHER CRIMES Violation of an Order of ProtectionChild Abuse/Child EndangermentFraud Crimes Element – Intent to DefraudPossession of Fraudulent Identification without useOther Traffic OffensesProstitution Crimes

EXAMPLEJavier is 16 and arrested for possession of 15grams of marijuana. He tells you that he isundocumented but has DACA.

EXAMPLE #2 Mariais a lawful permanent resident andis arrested for shoplifting. QUESTIONS: When did she become an LPR?Felony or misdemeanor?First offense?Second Offense?

QUESTIONS

Who’s WhoIP StaffContact informationJasmine McGee,Senior Staff Attorneyjmcgee@immigrationproject.org

Resources Mary KramerImmigrant Defense es-forcriminal-defenders/National Immigration Project – advisories andreference charts.htmlNorton Tooby,Free ending Non-Citizens in Illinois, Indiana, andWisconsin pter%203%20FINAL3.pdf

FOR ANY FOREIGN BORN RESIDENTREQUIRING A LEGAL CONSULTATION, CALLMONDAYS AND WEDNESDAYS 10-4. 309-8298703.

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),