Ethical Obligations When Representing Immigrant Clients

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ETHICAL OBLIGATIONSWHEN REPRESENTINGIMMIGRANT CLIENTSMSPD Spring Training 2019Meggie BiesenthalArea 11, St. Charles Trial Office

ETHICAL DUTIES1) Confidentiality regarding client’s immigration status2) Work with an interpreter3) Consult an immigration advisor4) Advise your client of the potential outcomes of his chargesand potential plea bargains / sentencing

“WHAT IS YOUR CLIENT’S STATUS?”Reasons to tell your PA / the CourtReasons NOT to tell the PA or Court up front- Trying to negotiate a plea bargain that willallow your client to remain in the U.S.- May reduce the likelihood of a bondreduction- Trying to negotiate a plea bargain that willreduce the amount of time your client has toserve before facing the immigration courtand deportation- May trigger the prosecutor to call ICE andhave a detainer placed on your client.- Probation officers also are commonreporters to ICE.- If the victim in a domestic or assault case isalso an immigrant, you could ask whetherthe victim is receiving a U-visa certificationfor their assistance in the prosecution ofyour client.I am NOT recommending you keep this information from the Court indefinitely. In felony pleas,the Judge may have additional colloquy questions regarding the immigration advisements ournon-citizen clients have received.

USE AN INTERPRETER:FOR YOU AND IN COURT Hire an interpreter for your client meetings, jail visits, etc., if there’s ANY doubt about yourclient’s ability to communicate in English. Have the police reports interpreted for your client or read to him. Depending on your client’sbackground, his reading level may not be very high. And he may never have learned to read inEnglish. Make sure you ask the Court for an interpreter for your client’s court proceedings. “It is a manifest injustice to permit a defendant to plead guilty and be sentenced if, becauseof a language barrier, he cannot understand the proceeding.” State v. Sultan, 14 S.W.3d 96 (Mo.App. E.D. 2000). Keep in mind that the court’s interpreter has a duty to the COURT, not a duty of confidentiality toyou and your client. While the interpreters are often willing to interpret for you and your clientbefore and during proceedings, having your own interpreter present (especially if you think issuesare going to arise) is a better idea.

IMMIGRATION ADVISEMENTS Fill out immigration intake – as completely as you can Send it to me or Amy Commean (Jackson) Contact us as early as possible Give us your client’s next court date, any deadlines on the plea deals, and how eager yourclient is to resolve the case. Keep us informed of any plea offers.

PADILLA V. KY:WHAT DO WE NEED TO TELL OUR CLIENTS? Padilla v. KY, 2010 US Supreme Court: Criminal defense attorneys must advise noncitizen clients about thedeportation risks of a guilty plea If law is unambiguous, attorneys must advise their criminal clients if deportation will resultfrom a conviction. If immigration consequences are unclear or uncertain, attorneys must advise thatdeportation “may” result Attorneys MUST give their clients some advice about deportation

HOW DOES A PADILLA ADVISEMENT LOOK? Is your client deportable or inadmissible? If so, tell him. If deportable or inadmissible, does he have relief? If so, how can you craft dispositions that keep him eligible for that relief? If that’s impossible, make sure the client KNOWS that what they’re pleading to will makethem deportable or inadmissible, meaning ICE will get them, they will have no relief(defense) in immigration court, and they will be deported with no ability to come back.

CLIENT #1 Born abroad to married parents Moved with parents to US as child (8 years old) Parents remained married until mother’s death Mother passed away before client turned 18 Father naturalized before client turned 18What is Client #1’s status?

CLIENT #1 IS A US CITIZEN! Needs an immigration attorney to file N-600 with proper documentation to receiveCertificate of Citizenship. ICE hold can be lifted, as it was in the case I worked on. I sent ICE all her documentsestablishing that she was a citizen, and her ICE officer lifted the hold so that she wasreleased from jail upon pleading to probation.WHAT DOES THAT MEAN FOR THE CRIMINAL CASE? There should be no immigration consequences for the client. Client is a US citizen,who can only have her citizenship taken away if it was obtained by fraud.

CLIENT #2 Has copy of expired green card Charged with multiple counts of burglary 2nd and stealingWhat is Client #2’s status?

CLIENT #2 IS ALAWFUL PERMANENT RESIDENT Has copy of expired green card Charged with multiple counts of burglary 2nd and stealingWhat is Client #2’s status?Client #2 is a Lawful Permanent Resident Also known as a “LPR” and “green card holder” Important: Green cards may expire, but person only loses LPR status if an immigration judge takes away thestatus. Conditional permanent resident is different, so if got green card based on marriage, then talk to an immigration advisor A person with an expired green card is still a lawful permanent resident. (But to get an ID, driver’s license, etc,client needs to apply for a new card IF no convictions which will trigger removal.)

WHAT ARE YOU DUTIES TO AND CONCERNSFOR CLIENT #2? What else we know: (unconditional) Green cards are good for ten years. So client qualifiesfor cancellation of removal for lawful permanent residents:Been present for 7 years been LPR for 5 years NO AGGRAVATED FELONY CONVICTIONS eligible for LPRcancellation IF your charge is not an aggravated felony (and will not become one if sentenced to morethan a year), then advise your client whether the charge will make them deportable, and tellthem they should still be eligible for LPR cancellation (and they need an immigration lawyerasap).

WHAT CHARGES AREAGGRAVATED FELONIES? Aggravated felonies all on their own: Murder - Rape - Sexual abuse of a minor - Drugtrafficking offenses (including sale and poss w/ intent to sell) - Firearms trafficking (andpossibly other firearms offenses) - Attempt to Commit OR conspiracy to Commit an Agg Fel- Others not listed here but listed in INA 101(a)(43) Agg felonies IF sentenced to one year or more: Burglary - Forgery - Receipt of stolenproperty - Theft (including Robbery) - Bribery of witness - Counterfeiting - Using orcreating false documents - Others not listed here but found in INA 101(a)(43) Crime of violence agg felonies: An offense that has as an element the use, attempted use, orthreatened use of physical force against the person or property of another, OR any otheroffense that is a felony and that, by its nature, involves a substantial risk that physical forceagainst the person or property of another may be used in the course of committing theoffense sentence of one year or greater (whether suspended or imposed)

CLIENT #3 Lawful permanent resident Has had a green card for 15 yearsWhat are the immigration concerns for Client #3 charged with:DWI – Chronic Offender (C felony)- Should NOT be placed into removalproceedings; is not CIMT or other ground ofdeportability- If placed into removal, is NOT an aggravatedfelony, so still eligible for LPR cancellation- Also will need to rehab (CHOICES, inpatienttreatment, etc.) to show immigration judge he isnot inadmissible for being a habitual drunkard.Possession of a controlled substance (D felony)- Is a ground of deportability, so will be placedinto removal proceedings- NOT an aggravated felony, so still eligible forLPR cancellation- Needs to prove worthy of discretionarycancellation grant- Attend rehab, have plan for relapse prevention,and talk to immigration advisor or attorneybefore entering Drug Courts.

WHAT MAKES A CLIENT DEPORTABLE? Applies to those who were lawfully admitted to the US (even if their lawful status hasexpired). Usually means had a visa at some point but either 1) overstayed itsexpiration date, or 2) became LPR but now criminal convictions are causingpotential loss of that status These convictions render someone deportable: Aggravated felony conviction Crime involving moral turpitude (one or two, depending on when committed) Controlled substance conviction Firearms conviction Domestic violence / stalking / child abuse conviction Violation of order of protection

CLIENT #4 Born in Mexico. Parents brought to U.S. at age 9. Entered without inspection. Graduated high school.What is Client #4’s status?

CLIENT #4 Born in Mexico. Parents brought to U.S. at age 9. Entered without inspection. Graduated high school.What is Client #4’s status?Client #4 is undocumented.BUT he could have DACA (Deferred Action for Childhood Arrivals).Important to conduct thorough intake because “entered without papers” isn’t always the end of the story.

WHAT ARE YOUR DUTIES TO ANDCONCERNS FOR CLIENT #4? Seems like everyone who is undocumented is being deported. HOWEVER, all hope is not lostfor many of our undocumented clients. Client #4 was a DACA recipient, whose awesome PD negotiated for him a deferred prosecutionagreement (with no admission of guilt). DACA recipients cannot have a felony conviction, or be convicted of a “significant misdemeanor,”defined as: DWI, domestic assault, and any misdemeanor for which he was sentenced to 90 days ormore in jail.LEARN YOUR CLIENT’S STATUS AND FIND OUT HOW YOU CAN HELP.I AM CONSISTENTLY AMAZED BY THE OUTCOMES OUR ATTORNEYSNEGOTIATE.

DUTIES TO AN UNDOCUMENTED CLIENT Client #4, if undocumented, could be facing an ICE hold and removal proceedings1) for having entered without inspection (most common), or2) for being a LPR who travelled outside the country and tried to come back in after a conviction whichmade him inadmissible. Screen the client for relief options: Cancellation of removal for non-permanent residents: present in the US continuously for 10 yearsbefore the offense date, with US citizen spouse, parents or children under 21 who would suffer“exceptional and extremely unusual” hardship if client was deported. IF it appears your clientcould qualify, talk to immigration advisor about client’s criminal history and current charges. Adjustment of status with waivers: if client has US citizen spouse, talk to immigration advisor. Asylum / Withholding of removal / CAT Protection: does client fear returning home? VAWA: if client has US citizen / LPR spouse and has been abused by that spouse, talk to immigrationadvisor and to immigration attorneys for client. You’re not expected to tell client what exactly they’re eligible for and how they could get it.But your job of identifying immigration consequences becomes easier when you have an ideaof what relief is and isn’t available to your client.

UNDOCUMENTED CLIENTS ARE NOWENFORCEMENT PRIORITIES For having entered without inspection, a person is inadmissible if they havenever gotten asylum or some other status once in the U.S. This administration’s enforcement priorities are to pick up EVERYONE who isundocumented Undocumented individuals with no criminal history are no longer safe from ICE as they were underthe previous administration. This means your undocumented clients, even with no criminal history, are indanger of being flagged by court staff, jail staff, or probation officers andhaving ICE called on them.

WHAT MAKES A CLIENT INADMISSIBLE?Undocumented clients who aren’t put into removal proceedings JUST forbeing undocumented become inadmissible with convictions for: Crime Involving Moral Turpitude Generally requires INTENT to cause great bodily harm, defraud, or permanentlydeprive an owner of property, or in some cases to act with lewd intent orrecklessness. Examples: Forgery, stealing, tampering 1st, possibly DWR/S, other crimes with“intent” elements Controlled substance offense Multiple convictions (two or more) with aggregate sentences of five years ormore

CLIENT #5 Undocumented Charged with stealing (class A misdemeanor) No other criminal historyClient #5 is inadmissible for committing a CIMT.But is there relief for him?

CLIENT #5: PETTY OFFENSE EXCEPTION Undocumented Charged with stealing (class A misdemeanor) No other criminal historyClient #5 is inadmissible for committing a CIMT.But is there relief for him?YES.Individuals who commit ONE CIMT,for which the maximum punishment is one year or less in jail, andwho are sentenced to 6 months or less in jail,are given a pass with the “petty offense exception.”ICE will not charge them as being removable for this one conviction.* Petty offense exception does not waive inadmissibility for drug convictions. *

CLIENT #6 Undocumented Charged with stealing (class A misdemeanor) Age 17 when crime committed No other criminal historyClient #6 is inadmissible for committing a CIMT.But is there relief for him?

CLIENT #6: YOUTHFUL OFFENDEREXCEPTION Undocumented Charged with stealing (class A misdemeanor) Age 17 when crime committed No other criminal historyClient #6 is inadmissible for committing a CIMT.But is there relief for him?YES, the Youthful Offender ExceptionFor an undocumented individual, charged as an adult with one CIMT.Waives this CIMT ground of inadmissibility, so long as they don’t end up in immigrationcourt for five years after the conviction.

CLIENT #7 From Nigeria Lawful permanent resident Charged with multiple counts of forgery PD asked PA for 364 day SES, with up to four counts stacked (consecutive) PA refused. Client was advised of the PA’s offer and his options of trial, pursuant or open plea. Client was advised of risk of deportation if convicted of aggravated felonies and givensentence of more than one year. Client chose open plea. PD called immigration advisor as witness to testify at sentencing. Judge gave client 4 year back-up on each count, but suspended the execution of thesentences.Unfortunately we can’t always get the outcome we hope for.

CLIENT #8When there are no good options Undocumented client, came to US as an adult No parents, spouse or children in US No fear of returning to home country Charged with forcible rape and forcible sodomy Victim & family come to deposition, testify credibly, already have U visa (no apparent motive tolie) Client wants to return to home country as quickly as possible. Understands he may not beable to return to the US, and is ok with that. Negotiated plea to lesser charge (not dangerous felony). Advised client he was pleading guilty to aggravated felonies and would not be able to returnto the US

PLEAS WHICH ARE MOST HELPFULNot this!Instead, plead to THIS Plead to this not that chartPossession of marijuana under 35gramsWrite on the plea forms UNDER 30 GRAMSUnlawful possession of drugParaphernaliaOk so long as you do not specify the drug if there’s any residuefoundBurglary 2ndTrespassTampering 1stTampering 2ndDWS / DWROWL / NOL No intent elementAssaultsCharging language should read reckless, not intentional. If felonyassault, see if you can get 364 days to avoid Agg Fel COV

SAFER SENTENCES LESS THAN 90 DAYS IN JAIL: For someone with no real criminal history who may be DACA orDAPA eligible LESS THAN 180 DAYS IN JAIL: For someone who is facing misdemeanor stealing (or other CIMT)and it’s his 1st offense LESS THAN ONE YEAR IN JAIL: To avoid making certain crimes into aggravated felonies LESS THAN 5 YEARS IN PRISON: For someone with two or more convictions (need aggregatesentences of less than 5 years) SIS CONVICTION for immigration purposes. Do NOT tell your client that because they get anSIS, they’re safe with immigration.

DOMESTIC SITUATIONS(INCLUDING VOP, AGG STALKING) Domestic Assault charges: Plead to regular assault, preferably reckless. No domestic label or qualifier on the charge or in the indictment or information your clientpleads to. Eliminate the relationship between the parties from the complaint / information. IF plead to Assault 2, get a sentence under one year if possible. Violation of an order of protection is a problematic charge for someone in immigration court.See if you can get the charge changed to something like trespass if that will fit your facts. Aggravated stalking and harassment charges also are not looked upon favorably in immigrationcourt.

BEST ADVICE FOR ETHICALREPRESENTATION OF IMMIGRANTS Gather as much information as possible about your client’s background. Once client is fully aware of charges and possible outcomes, work with client to identify theirgoals. Client 1: Get out of jail and have ICE hold eliminated. Criminal outcome won’t affect her status. Client 2: Avoid aggravated felony convictions and get sentence with rehab options (Choices) socan show immigration court his rehabilitation. Client 3: Avoid imprisonment of five years or more (aggregate). Avoid agg felonies. Client 4: Keep his DACA (or DACA / DAPA eligibility) by no significant misdemeanors and nofelonies Client 5: Misdemeanor conviction with sentence (suspended or imposed) of less than 180 days Client 6: Misdemeanor conviction, avoid ICE for five years. Client 7: Main goal was probation but wanted to try and avoid aggravated felony Client 8: Get deported as quickly as possible so serve as little time as possible

BEST ADVICE FOR ETHICALREPRESENTATION OF IMMIGRANTS Once your client’s goals are identified, work with immigration advisor to figure out if goalsare achievable, and if so, how. Negotiate for your client. Make sure client has read or heard and understood all discovery. Once you have plea offer (or no plea offer), lay out the immigration consequences for client. When your client is fully advised, the decision on how to proceed is theirs. Document the advice you gave your client and keep any documentation from immigrationadvisor in your file. Help client find immigration attorneys or non-profits, and if the client asks, check withimmigration advisor for what will happen to them next.

QUESTIONS?Meggie Biesenthal314.610.9611 (cell)Office contact info in databaseBe persistent and alwaysprovide me with your timeline.

felony, so still eligible for LPR cancellation - Also will need to rehab (CHOICES, inpatient treatment, etc.) to show immigration judge he is not inadmissible for being a habitual drunkard. - Is a ground of deportability, so will be placed into removal proceedings - NOT an aggravated felony,so still eligible for LPR cancellation

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