Immigration Immigration Consequences of Adult & Consequences of Adult &

Juvenile Criminal Juvenile Criminal ConvictionsConvictionsPresentation toPresentation to

Virginia Beach Bar Association Virginia Beach Bar Association JDR DC SubcommitteeJDR DC Subcommittee

December 4, 2015December 4, 2015ByBy

Hugo R. ValverdeHugo R. ValverdeValverde & Rowell, P.C.Valverde & Rowell, P.C.

Who is a U.S. Citizen?Who is a U.S. Citizen? Born on U.S. soil or U.S. territoriesBorn on U.S. soil or U.S. territories

1414thth Amendment - All persons born or Amendment - All persons born or naturalized in the United States, and subject to naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the the jurisdiction thereof, are citizens of the United States and of the State wherein they United States and of the State wherein they reside. reside.

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) Naturalized (formerly had a green card, Naturalized (formerly had a green card,

took the oath of citizenship)took the oath of citizenship)

Who is a U.S. Citizen?Who is a U.S. Citizen? Born to U.S. citizen parent(s) abroad Born to U.S. citizen parent(s) abroad

or sometimes grandparent(s)or sometimes grandparent(s) Has green card and while under the Has green card and while under the

age of 18, parent(s) became U.S. age of 18, parent(s) became U.S. citizencitizen

Generally, once a U.S. citizen always a Generally, once a U.S. citizen always a U.S. citizen and cannot be deported.U.S. citizen and cannot be deported.

Inadmissibility v. Inadmissibility v. RemovabilityRemovability

A criminal conviction makes a non-citizen A criminal conviction makes a non-citizen deportable or ineligible for an immigration deportable or ineligible for an immigration benefit b/c he is “inadmissible” or benefit b/c he is “inadmissible” or “removable.”“removable.”

A non-citizen is “inadmissible” when he/she A non-citizen is “inadmissible” when he/she has not been formally inspected at a port of has not been formally inspected at a port of entry or seeks a visa or lawful permanent entry or seeks a visa or lawful permanent residence. INA § 212 applies.residence. INA § 212 applies.

A non-citizen is “removable” if he/she has A non-citizen is “removable” if he/she has been inspected and entered under a legal been inspected and entered under a legal visa. INA § 237 applies.visa. INA § 237 applies.

““Conviction”Conviction” A formal judgment of guilt by a court ORA formal judgment of guilt by a court OR If adjudication of guilt has been withheld (i.e. no judgment of If adjudication of guilt has been withheld (i.e. no judgment of

conviction entered) there isconviction entered) there is Guilty plea or plea of nolo contendere;Guilty plea or plea of nolo contendere; Admission of sufficient facts; ORAdmission of sufficient facts; OR Judge or jury has found guilt; ANDJudge or jury has found guilt; AND Judge has ordered some kind of punishment, penalty, or restraint on Judge has ordered some kind of punishment, penalty, or restraint on

libertyliberty

INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A)INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A) ““some kind of punishment, penalty, or restraint” can be some kind of punishment, penalty, or restraint” can be

probationprobation Convictions on appeal by right are not “convictions” because Convictions on appeal by right are not “convictions” because

not final. not final. Example conviction on appeal from General District Court to Example conviction on appeal from General District Court to

Circuit Court not a “conviction.”Circuit Court not a “conviction.”

Tips for Defense AttorneysTips for Defense Attorneys Deferred adjudicationsDeferred adjudications

Avoid pleading guilty or finding of guilty in the Avoid pleading guilty or finding of guilty in the warrant/record. Otherwise will still be warrant/record. Otherwise will still be considered a “conviction” under immigration considered a “conviction” under immigration law.law.

Still may not be enough because First Offender Still may not be enough because First Offender provisions in Va. Code state: provisions in Va. Code state:

““. . . if the facts found by the court would justify a . . . if the facts found by the court would justify a finding of guilt . . .”finding of guilt . . .”

Examples: Va. Code § 18.2-251 (marijuana Examples: Va. Code § 18.2-251 (marijuana possession) and § 18.2-57.2 (domestic assault) possession) and § 18.2-57.2 (domestic assault)

““Sentence”Sentence”

Includes the period of incarceration Includes the period of incarceration or confinement ordered by a court or confinement ordered by a court regardlessregardless of any suspension in of any suspension in whole or in part. INA § 101(a)(48)(B); whole or in part. INA § 101(a)(48)(B); 8 U.S.C. § 1101(a)(48)(B).8 U.S.C. § 1101(a)(48)(B).

Juvenile ConvictionsJuvenile Convictions Convictions of minors in juvenile and Convictions of minors in juvenile and

domestic relations court are not domestic relations court are not convictions for immigration purposes. convictions for immigration purposes. Matter of DevisonMatter of Devison, 22 I&N Dec. 1622 (BIA , 22 I&N Dec. 1622 (BIA 2000).2000).

However, if juvenile transferred to adult However, if juvenile transferred to adult court then it is a conviction.court then it is a conviction.

Note: Sometimes Adverse Note: Sometimes Adverse Immigration Consequences Immigration Consequences Do Not Require ConvictionsDo Not Require Convictions

Some grounds of Some grounds of inadmissibility/removability do not inadmissibility/removability do not require a “conviction” to trigger adverse require a “conviction” to trigger adverse immigration consequences:immigration consequences: Drug trafficking (i.e. drug dealing)Drug trafficking (i.e. drug dealing) Drug abuser or drug addictDrug abuser or drug addict ProstitutionProstitution Violations of protective ordersViolations of protective orders False claim to U.S. CitizenshipFalse claim to U.S. Citizenship

Also…Also…

Many immigration benefits are Many immigration benefits are discretionarydiscretionary

The government can still use its The government can still use its discretion to deny immigration discretion to deny immigration benefits even though juvenile benefits even though juvenile convictions may not be convictions may not be “convictions.”“convictions.”

Crimmigration Crimmigration ConsequencesConsequences

DeportationDeportation Mandatory Detention by Immigration with no Mandatory Detention by Immigration with no

bondbond Ineligibility for U.S. citizenshipIneligibility for U.S. citizenship Ineligibility for a “green card” and Ineligibility for a “green card” and

immigrant and non-immigrant visasimmigrant and non-immigrant visas Eligibility for relief from deportation or Eligibility for relief from deportation or

waiverswaivers Possible lifetime separation from family and Possible lifetime separation from family and

friendsfriends

Mandatory Immigration Mandatory Immigration Detention Under INA § Detention Under INA §

236(c)236(c) Immigration Judge cannot grant bond Immigration Judge cannot grant bond

if defendant has been convicted of if defendant has been convicted of certain crimescertain crimes Controlled substance violationsControlled substance violations Crimes involving moral turpitudeCrimes involving moral turpitude Aggravated feloniesAggravated felonies Firearms offensesFirearms offenses

Drug OffensesDrug Offenses Almost any drug offense makes a person Almost any drug offense makes a person

inadmissible or removable, regardless of inadmissible or removable, regardless of sentence.sentence.

For inadmissibility (someone applying for a visa For inadmissibility (someone applying for a visa abroad or applying for permanent residence in abroad or applying for permanent residence in the U.S.), a conviction is not necessarythe U.S.), a conviction is not necessary Can be an admission to an officer that he has Can be an admission to an officer that he has

committed an act that is punishable under any law committed an act that is punishable under any law relating to a controlled substance. INA § 212(a)(2)(A)relating to a controlled substance. INA § 212(a)(2)(A)(i)(II).(i)(II).

Officer can have “reason to believe” that non-citizen Officer can have “reason to believe” that non-citizen has been involved in drug trafficking. INA § 212(a)(2)has been involved in drug trafficking. INA § 212(a)(2)(C)(i).(C)(i).

Drug OffensesDrug Offenses For removability, any non-citizen who after For removability, any non-citizen who after

admission is convicted of violating (or admission is convicted of violating (or conspiracy or attempt to violate) any law conspiracy or attempt to violate) any law relating to a “controlled substance.” INA § relating to a “controlled substance.” INA § 237(a)(2)(B)(i).237(a)(2)(B)(i).

Even possession of drug paraphernalia Even possession of drug paraphernalia could be a crime relating to a controlled could be a crime relating to a controlled substance if relates to a substance listed substance if relates to a substance listed in the federal schedule. in the federal schedule. See Mellouli v. See Mellouli v. Lynch, ___ Lynch, ___ U.S. ____, No. 13-1034 (June 1, U.S. ____, No. 13-1034 (June 1, 2015); 2015); Matter of Pacheco-Ventura Matter of Pacheco-Ventura (unpublished BIA decision 2003).(unpublished BIA decision 2003).

Drug OffensesDrug Offenses

Not removable for a drug conviction if only a Not removable for a drug conviction if only a single offense for marijuana possession of 30 single offense for marijuana possession of 30 grams or less. INA § 237(a)(2)(B)(i).grams or less. INA § 237(a)(2)(B)(i). Tip: Try to get the amount in the record if less than 30 Tip: Try to get the amount in the record if less than 30

grams. grams. Not inadmissible or removable if conviction does Not inadmissible or removable if conviction does

not relate to a federally “controlled substance” as not relate to a federally “controlled substance” as defined in 18 U.S.C. § 102. defined in 18 U.S.C. § 102. Mellouli v. Lynch, ___ Mellouli v. Lynch, ___ U.S. ____, No. 13-1034 (June 1, 2015); U.S. ____, No. 13-1034 (June 1, 2015); Matter of Matter of Paulus, Paulus, 11 I&N Dec. 211 (BIA 1965).11 I&N Dec. 211 (BIA 1965).

Drug OffensesDrug Offenses Consequences:Consequences:

Denied entry from abroadDenied entry from abroad Denied changing to another type of visaDenied changing to another type of visa Never become a lawful permanent resident, Never become a lawful permanent resident,

unless for possession of 30g or less of marijuanaunless for possession of 30g or less of marijuana Denied U.S. CitizenshipDenied U.S. Citizenship Placed in removal proceedings and subject to Placed in removal proceedings and subject to

mandatory detentionmandatory detention NOTE: Some drug offenses are “aggravated NOTE: Some drug offenses are “aggravated

felonies”felonies”

Aggravated FeloniesAggravated Felonies Don’t let the name fool you – a misdemeanor Don’t let the name fool you – a misdemeanor

under state law can still be an aggravated felony.under state law can still be an aggravated felony. Not all aggravated felonies have one year Not all aggravated felonies have one year

sentence triggerssentence triggers Can be “kiss of death” for a non-citizenCan be “kiss of death” for a non-citizen Only applies to removability – non-citizens who Only applies to removability – non-citizens who

have been inspected and entered under a legal have been inspected and entered under a legal visavisa

INA § 101(a)(43) defines 19 types of aggravated INA § 101(a)(43) defines 19 types of aggravated feloniesfelonies

Aggravated FeloniesAggravated Felonies

Rape, murder, and sexual abuse of a minorRape, murder, and sexual abuse of a minor Sexual abuse of a minor does not require Sexual abuse of a minor does not require

contact. Indecent exposure enough. contact. Indecent exposure enough. Matter of Matter of Rodriguez-Rodriguez, Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 22 I&N Dec. 991 (BIA 1999). 1999).

Solicitation of minor. Solicitation of minor. Gattem v. GonzalezGattem v. Gonzalez, 412 , 412 F.3d 758 (7th Cir. 2005) (Illinois conviction of F.3d 758 (7th Cir. 2005) (Illinois conviction of misdemeanor solicitation to engage in a sexual misdemeanor solicitation to engage in a sexual act is sexual abuse of a minor where criminal act is sexual abuse of a minor where criminal complaint (and no other document) showed complaint (and no other document) showed victim under the age of 18) victim under the age of 18)

Solicitation of undercover adult officer posing Solicitation of undercover adult officer posing as child on internet. as child on internet. Hernandez-Alvarez v. Hernandez-Alvarez v. GonzalesGonzales, 432 F.3d 763 (7th Cir. 2005) , 432 F.3d 763 (7th Cir. 2005)

Aggravated FeloniesAggravated Felonies Illicit trafficking in a controlled substance, including Illicit trafficking in a controlled substance, including

a “drug trafficking crime” defined in 18 USC § a “drug trafficking crime” defined in 18 USC § 924(c)924(c) AnyAny drug conviction where the statute has an element of drug conviction where the statute has an element of

sale or distribution, regardless of sentence could be an sale or distribution, regardless of sentence could be an aggravated felony.aggravated felony.

Any federal conviction for possession that is a felonyAny federal conviction for possession that is a felony BUT state felony possession that would not be a felony BUT state felony possession that would not be a felony

under federal law NOT an ag felon, under federal law NOT an ag felon, Lopez v. GonzalezLopez v. Gonzalez, , 125 S. Ct. 625 (2006) unless for flunitrazepam (date rape) 125 S. Ct. 625 (2006) unless for flunitrazepam (date rape) or >5g of crack. or >5g of crack.

A second possession conviction may be an ag felony if it A second possession conviction may be an ag felony if it would be a felony under federal statute as repeat would be a felony under federal statute as repeat offenderoffender

PWID marijuana not ag felony if statute covers sharing of PWID marijuana not ag felony if statute covers sharing of a small amount of marijuana with no renumeration, e.g. a small amount of marijuana with no renumeration, e.g. Va. Code § Va. Code § 18.2-248.1(a). . Moncreiffe v. HolderMoncreiffe v. Holder, 133 S.Ct. , 133 S.Ct. 1678 (2013). 1678 (2013).

Aggravated FeloniesAggravated Felonies Crime of violenceCrime of violence and sentenced to at least one and sentenced to at least one

year imprisonmentyear imprisonment Defined in 18 USC § 16Defined in 18 USC § 16

(a) Element of the use, attempted use, or threatened (a) Element of the use, attempted use, or threatened use of force against person or property oruse of force against person or property or

(b) A felony that involved a substantial risk that force (b) A felony that involved a substantial risk that force will be used in commission of offensewill be used in commission of offense

Must involve Must involve activeactive force and a higher degree of force and a higher degree of intentintent than mere negligent or accidental conduct. than mere negligent or accidental conduct. Leocal v. AshcroftLeocal v. Ashcroft, 543 U.S. 1 (2004)., 543 U.S. 1 (2004).

Look at statute of conviction for required mental Look at statute of conviction for required mental statestate

Aggravated FeloniesAggravated Felonies Not Crimes of ViolenceNot Crimes of Violence

Simple involuntary manslaughter under Va. Code § Simple involuntary manslaughter under Va. Code § 18.2-36. 18.2-36. Bejerano-Urrutia v. GonzalezBejerano-Urrutia v. Gonzalez, 413 F.3d 444 , 413 F.3d 444 (4th Cir. 2005).(4th Cir. 2005).

DUI and DUI causing bodily injury. DUI and DUI causing bodily injury. Leocal v. Ashcroft.Leocal v. Ashcroft. Assault Assault recklessly recklessly causing serious physical injury by causing serious physical injury by

means of deadly weapon or dangerous instrument. means of deadly weapon or dangerous instrument. Garcia v. GonzalezGarcia v. Gonzalez, (4th Cir. 2006)., (4th Cir. 2006).

Va. domestic violence not categorically a COV. Va. domestic violence not categorically a COV. Matter of Velasquez, 25 I&N Dec., 278 (2010)

Crimes of ViolenceCrimes of Violence Misdemeanor sexual battery under § 18.2-67.4. Misdemeanor sexual battery under § 18.2-67.4.

Wireko v. RenoWireko v. Reno, 211 F.3d 833 (4th Cir. 2000)., 211 F.3d 833 (4th Cir. 2000).

Aggravated FeloniesAggravated Felonies Theft or burglary offense for which term of Theft or burglary offense for which term of

imprisonment at least one yearimprisonment at least one year Fourth Circuit said Virginia grand larceny Fourth Circuit said Virginia grand larceny

conviction is not an aggravated felony theft conviction is not an aggravated felony theft offense. offense. Omargharib v HolderOmargharib v Holder, 775 F.3d 192 , 775 F.3d 192 (2014). Note: It can still be a CIMT.(2014). Note: It can still be a CIMT.

Child pornographyChild pornography Owning/managing prostitution business/human Owning/managing prostitution business/human

traffickingtrafficking Obstruction of justice/perjuryObstruction of justice/perjury Attempt or conspiracy to commit any of the Attempt or conspiracy to commit any of the

enumerated aggravated feloniesenumerated aggravated felonies AND SEVERAL MORE . . .AND SEVERAL MORE . . .

Aggravated FeloniesAggravated Felonies

ConsequencesConsequences Mandatory detentionMandatory detention Certain deportationCertain deportation Not eligible for any relief from Not eligible for any relief from

deportation, except deferral of removal deportation, except deferral of removal under Convention Against Tortureunder Convention Against Torture

Permanent bar from ever being able to Permanent bar from ever being able to return, unless get a special waiver.return, unless get a special waiver.

Permanent bar to U.S. citizenshipPermanent bar to U.S. citizenship

Crimes Involving Moral Crimes Involving Moral Turpitude (“CIMTs”)Turpitude (“CIMTs”)

For inadmissibility (person applying for visa For inadmissibility (person applying for visa outside the U.S. or permanent residence in the outside the U.S. or permanent residence in the U.S.), one CIMT or an attempt or conspiracy to U.S.), one CIMT or an attempt or conspiracy to commit a CIMTcommit a CIMT ExceptionsExceptions::

Crime committed under 18 and 5 years (from release from Crime committed under 18 and 5 years (from release from confinement) prior to date of application or admission confinement) prior to date of application or admission

Max penalty of crime one year or less and actually sentenced Max penalty of crime one year or less and actually sentenced to 6 months or less (“petty offense exception”)to 6 months or less (“petty offense exception”)

For removability, For removability, One CIMT within 5 years of admission and sentence One CIMT within 5 years of admission and sentence

one year or more one year or more may may be imposedbe imposed Two CIMTs not arising out of a single scheme of Two CIMTs not arising out of a single scheme of

criminal misconduct regardless of sentence or criminal misconduct regardless of sentence or imprisonmentimprisonment

CIMTsCIMTs Defined by case law not statuteDefined by case law not statute ““A nebulous concept, which refers generally A nebulous concept, which refers generally

to conduct that shocks the public conscience to conduct that shocks the public conscience as being inherently base, vile, or depraved, as being inherently base, vile, or depraved, contrary to the rules of morality . . . .” contrary to the rules of morality . . . .” Matter Matter of Daneshof Danesh, 19 I&N Dec. 669 (BIA 1988)., 19 I&N Dec. 669 (BIA 1988).

Does not matter whether a felony or Does not matter whether a felony or misdemeanormisdemeanor

Start by looking at the elements required for Start by looking at the elements required for convictionconviction

CIMTsCIMTs

Test: Does the statute contain an Test: Does the statute contain an element reflecting “a vicious motive element reflecting “a vicious motive or corrupt mind?” or corrupt mind?” Matter of FranklinMatter of Franklin, , 20 I&N Dec. 867 (BIA 1994).20 I&N Dec. 867 (BIA 1994).

CIMTsCIMTs Simple assault and battery usually not CIMT. Simple assault and battery usually not CIMT.

Matter of FualauuMatter of Fualauu, 21 I&N Dec. 475 (BIA 1996). , 21 I&N Dec. 475 (BIA 1996). However, assault with aggravating circumstances is However, assault with aggravating circumstances is

can be a CIMT, e.g. police officer, deadly weapon, can be a CIMT, e.g. police officer, deadly weapon, injury to family member.injury to family member.

Possession of firearm not CIMT. Possession of firearm not CIMT. Matter of GranadosMatter of Granados, , 16 I&N Dec. 726 (BIA 1979).16 I&N Dec. 726 (BIA 1979).

However, use of a firearm under Va. Code 18.2-53.1 However, use of a firearm under Va. Code 18.2-53.1 is a CIMT. is a CIMT. United States v. BrownUnited States v. Brown, 127 F.Supp.2d , 127 F.Supp.2d 392 (WDNY 2001).392 (WDNY 2001).

Theft offenses are CIMTs – intent to deprive ownerTheft offenses are CIMTs – intent to deprive owner Maybe Va. 46.2-894 -failure to stop after accidentMaybe Va. 46.2-894 -failure to stop after accident

Also Not CIMTsAlso Not CIMTs Va. 18.2-102 (joyriding)Va. 18.2-102 (joyriding) Va. 18.2-89 (burglary, where record Va. 18.2-89 (burglary, where record

reflects that B&E was not done with reflects that B&E was not done with intent to commit CIMT – ie. B&E with intent to commit CIMT – ie. B&E with intent to trespass)intent to trespass)

DUI and motor vehicle offensesDUI and motor vehicle offenses Va. 18.2-266 (DUI)Va. 18.2-266 (DUI) Va. 46.2-862 (reckless driving)Va. 46.2-862 (reckless driving)

CIMTsCIMTs False Pretenses/Fraud is CIMT– intent to False Pretenses/Fraud is CIMT– intent to

defrauddefraud Burglary and robbery are CIMTS – intent to Burglary and robbery are CIMTS – intent to

commit a felony or steal. commit a felony or steal. United States v. United States v. BrownBrown, 127 F.Supp.2d 392 (WDNY 2001). , 127 F.Supp.2d 392 (WDNY 2001).

False police report is a CIMT – intent to False police report is a CIMT – intent to misleadmislead

Sex offenses are CIMTsSex offenses are CIMTs Controlled substance offenses with an intent Controlled substance offenses with an intent

or knowledge of manufacture or distribution or knowledge of manufacture or distribution a CIMT. a CIMT. Matter of KhournMatter of Khourn, 21 I&N Dec. 1041 , 21 I&N Dec. 1041 (BIA 1997).(BIA 1997).

Consequences of CIMTsConsequences of CIMTs Denied a visa and lawful permanent Denied a visa and lawful permanent

residence, unless “petty offense” exception residence, unless “petty offense” exception or waiver is availableor waiver is available

Denied U.S. Citizenship if within 5 years of Denied U.S. Citizenship if within 5 years of application and may be placed in application and may be placed in deportation proceedingsdeportation proceedings

Mandatory detention upon arriving/reentry Mandatory detention upon arriving/reentry into the U.S. and placed in deportation into the U.S. and placed in deportation proceedingsproceedings

Still eligible for some forms of relief from Still eligible for some forms of relief from deportationdeportation

Domestic ViolenceDomestic Violence Removable for domestic violence, stalking, Removable for domestic violence, stalking,

child abuse, child neglect, or child child abuse, child neglect, or child abandonment conviction. INA § 237(a)(2)(E)(i).abandonment conviction. INA § 237(a)(2)(E)(i).

““Crime of domestic violence” is any crime of Crime of domestic violence” is any crime of violence defined in 18 U.S.C. § 16 against a violence defined in 18 U.S.C. § 16 against a person by a current or former spouse, person by a current or former spouse, individual w/ a child in common, cohabiting or individual w/ a child in common, cohabiting or cohabited with person as a spouse, individual cohabited with person as a spouse, individual similarly situated as a spouse under the state similarly situated as a spouse under the state law, or any individual against a person law, or any individual against a person protected by federal, state, or local domestic protected by federal, state, or local domestic violence laws. violence laws. IdId..

Domestic ViolenceDomestic Violence Removable for violation of protective order that Removable for violation of protective order that

protects against credible threats of violence, protects against credible threats of violence, repeated harassment, or bodily injury. § 237(a)repeated harassment, or bodily injury. § 237(a)(2)(E)(ii).(2)(E)(ii).

Domestic violence conviction is not categorically Domestic violence conviction is not categorically a CIMT. a CIMT. Matter of SejasMatter of Sejas, 24 I&N Dec. 246 (BIA , 24 I&N Dec. 246 (BIA 2007).2007).

Not categorically a crime of domestic violence or Not categorically a crime of domestic violence or crime of violence ag felony if sentenced to one crime of violence ag felony if sentenced to one year or more. year or more. Matter of VelasquezMatter of Velasquez, 25 I&N Dec. , 25 I&N Dec. (BIA 2010)(BIA 2010)

Consequences of Domestic Consequences of Domestic Violence ConvictionViolence Conviction

Not a ground of inadmissibility (person Not a ground of inadmissibility (person applying for a visa outside U.S. or applying for a visa outside U.S. or permanent residence in U.S.), unless a CIMT. permanent residence in U.S.), unless a CIMT.

A ground of removability and may be placed A ground of removability and may be placed in removal proceedingsin removal proceedings

Denial of U.S. Citizenship and may be placed Denial of U.S. Citizenship and may be placed in removal proceedingsin removal proceedings

Not subject to mandatory detention, unless Not subject to mandatory detention, unless a CIMT or an agg felona CIMT or an agg felon

Still eligible for waivers of inadmissibility or Still eligible for waivers of inadmissibility or removal, unless an agg felon removal, unless an agg felon

Firearms OffensesFirearms Offenses Removable for conviction of purchasing, Removable for conviction of purchasing,

selling, offering for sale, exchanging, selling, offering for sale, exchanging, using, owning, possessing, or carrying (or using, owning, possessing, or carrying (or attempt or conspiracy) a firearm or attempt or conspiracy) a firearm or destructive device. INA § 237(a)(2)(C). destructive device. INA § 237(a)(2)(C).

Firearm defined in 18 U.S.C. § 921(a).Firearm defined in 18 U.S.C. § 921(a). Statute of conviction must specify a Statute of conviction must specify a

firearm is involved. firearm is involved. Matter of Perez-Matter of Perez-ContrerasContreras, 20 I&N Dec. 615 (BIA 1992)., 20 I&N Dec. 615 (BIA 1992).

Consequences of Firearms Consequences of Firearms OffensesOffenses

Not a ground of inadmissibility, unless a Not a ground of inadmissibility, unless a CIMT. Depends on severity and intent.CIMT. Depends on severity and intent.

A ground of removability and may be A ground of removability and may be placed in removal proceedingsplaced in removal proceedings

Will not be denied U.S. Citizenship, unless Will not be denied U.S. Citizenship, unless a CIMT or agg felona CIMT or agg felon

Subject to mandatory detentionSubject to mandatory detention Still eligible for waivers of inadmissibility Still eligible for waivers of inadmissibility

or removal, unless an agg felon or removal, unless an agg felon

Categorical ApproachCategorical Approach Strict categorical approach to determine whether Strict categorical approach to determine whether

conviction triggers immigration consequences. conviction triggers immigration consequences. Descamps Descamps v. United Statesv. United States, 133 S.Ct. 2276 (2013); , 133 S.Ct. 2276 (2013); Mellouli v. Lynch, Mellouli v. Lynch, ___ ___ U.S. ____, No. 13-1034 (June 1, 2015).U.S. ____, No. 13-1034 (June 1, 2015).

First look at the language of the federal/state statute of First look at the language of the federal/state statute of conviction taken at its minimum and see whether it conviction taken at its minimum and see whether it matches a ground of inadmissibility or removability.matches a ground of inadmissibility or removability.

The actual conduct leading to the conviction is irrelevant.The actual conduct leading to the conviction is irrelevant. Look to see whether all the conduct criminalized under Look to see whether all the conduct criminalized under

the statute fits a ground of inadmissibility or removability.the statute fits a ground of inadmissibility or removability.

Modified Categorical Modified Categorical ApproachApproach When the statute of conviction defines more When the statute of conviction defines more

than one offense, the categorical analysis than one offense, the categorical analysis cannot be performed until it is determined cannot be performed until it is determined which of the offenses the individual was which of the offenses the individual was convicted of.convicted of.

The court can look at the “record of The court can look at the “record of conviction” - consists of charging document, conviction” - consists of charging document, indictment, information, plea, verdict, and indictment, information, plea, verdict, and sentence sentence notnot police report. police report. Matter of Matter of TeixeiraTeixeira, 21 I&N Dec. 316 (BIA 1996), 21 I&N Dec. 316 (BIA 1996)

Defense StrategiesDefense Strategies

Negotiate sentence under one year (if thatNegotiate sentence under one year (if that

Matters for immigration):Matters for immigration): Waive credit for time servedWaive credit for time served Have client spend more time in jail Have client spend more time in jail

instead of having suspended sentence instead of having suspended sentence over one yearover one year

Have client serve more straight Have client serve more straight probationprobation

Defense StrategiesDefense StrategiesTo the extent practicable ensure that the To the extent practicable ensure that the

record does not reflect an inadmissible/ record does not reflect an inadmissible/ deportable offense – what’s in the record:deportable offense – what’s in the record:

Charging documentCharging document Official record of judgment and convictionOfficial record of judgment and conviction Official record of plea (including transcript)Official record of plea (including transcript) Official record of verdictOfficial record of verdict Official record of sentenceOfficial record of sentence

Defense StrategiesDefense Strategies

Modify the record of conviction – ask the Modify the record of conviction – ask the prosecutor to issue new charging prosecutor to issue new charging documentdocument Example:Example: Va. 18.2-89 is not a CIMT unless Va. 18.2-89 is not a CIMT unless

the record reflects B&E with intent to commit the record reflects B&E with intent to commit a CIMT; ask prosecutor to amend charge to a CIMT; ask prosecutor to amend charge to B&E with intent to commit trespassB&E with intent to commit trespass

Plead to a another offense that does not Plead to a another offense that does not trigger adverse consequences.trigger adverse consequences.

Vacating a “Conviction”Vacating a “Conviction” For conviction to be vacated for For conviction to be vacated for

immigration purposes it must be immigration purposes it must be vacated on basis of vacated on basis of substantivesubstantive or or proceduralprocedural defect NOT for rehabilitative defect NOT for rehabilitative purposes or to ease immigration purposes or to ease immigration hardships. hardships. Matter of PickeringMatter of Pickering, 23 I&N , 23 I&N Dec. 621 (BIA 2003)Dec. 621 (BIA 2003)

Substantive or procedural defect must Substantive or procedural defect must have existed at the time of convictionhave existed at the time of conviction

Vacating a “Conviction”Vacating a “Conviction” Motion to vacate conviction must be based on Motion to vacate conviction must be based on

legal defect existing at time of convictionlegal defect existing at time of conviction E.g. motion to withdraw guilty plea, motion to vacate E.g. motion to withdraw guilty plea, motion to vacate

conviction, habeas corpus, conviction, habeas corpus, coram nobiscoram nobis, , audita audita querelaquerela

Coram nobis Coram nobis and and audita querela audita querela limited in Virginia. limited in Virginia. Commonwealth v. MorrisCommonwealth v. Morris, 281 Va. 20, 281 Va. 20 (2011)(2011)

Record should not indicate that it was vacated Record should not indicate that it was vacated to avoid adverse immigration consequences.to avoid adverse immigration consequences.

However, if state has advisal statute can use However, if state has advisal statute can use that as valid ground to vacate conviction. that as valid ground to vacate conviction. Matter of AdamiakMatter of Adamiak, 23 I&N Dec. 878 (BIA 2006)., 23 I&N Dec. 878 (BIA 2006).

VA does not have a formal advisal statute. VA does not have a formal advisal statute.

Modifying a “Sentence”Modifying a “Sentence”

Court decision to reduce a sentence Court decision to reduce a sentence nunc pro nunc pro tunc tunc to less than one year is given full faith to less than one year is given full faith and credit by the immigration courts, even if and credit by the immigration courts, even if it is to avoid adverse immigration it is to avoid adverse immigration consequences. consequences. Matter of Cota-VargasMatter of Cota-Vargas, 23 I&N , 23 I&N Dec. 849 (BIA 2005).Dec. 849 (BIA 2005).

Could also use to qualify conviction for “petty Could also use to qualify conviction for “petty offense exception”offense exception”

E.g. E.g. Commonwealth v. MohamedCommonwealth v. Mohamed, 71 Va. Cir. , 71 Va. Cir. 383 (Arlington County 2006).383 (Arlington County 2006).

PardonsPardons

Full and unconditional pardons from Full and unconditional pardons from the governor will remove the governor will remove crimmigration consequences. crimmigration consequences.

In Virginia it must be an “absolute In Virginia it must be an “absolute pardon.” Simple or conditional pardon.” Simple or conditional pardon not enough.pardon not enough.

Padilla v. Kentucky, 559 U.S. Padilla v. Kentucky, 559 U.S. 356 (2010)356 (2010)

Ineffective Assistance of Counsel - Should Ineffective Assistance of Counsel - Should defense counsel advise defendant of possible defense counsel advise defendant of possible adverse immigration consequences if they adverse immigration consequences if they plead guilty?plead guilty?

Supreme Court held yes if upon reading of Supreme Court held yes if upon reading of immigration statute it is fairly succinct and immigration statute it is fairly succinct and straightforward that client will face straightforward that client will face deportation. If not succinct and deportation. If not succinct and straightforward, then only warning of straightforward, then only warning of possibility of deportation sufficient.possibility of deportation sufficient.

Zemene v. Clark, 768 S.E.2d Zemene v. Clark, 768 S.E.2d 684 (Va. 2015)684 (Va. 2015)

Defense attorney’s performance fell below Defense attorney’s performance fell below Strickland Strickland standard because failed to:standard because failed to: Learn the “precise nature” of client’s Learn the “precise nature” of client’s

immigration statusimmigration status Determine “potential negative consequences” Determine “potential negative consequences”

relative to immigration status under plearelative to immigration status under plea Broach subject of immigration consequences to Broach subject of immigration consequences to

Commonwealth Attorney in plea negotiationsCommonwealth Attorney in plea negotiations Discuss with client likelihood of immigration Discuss with client likelihood of immigration

consequences of plea consequences of plea

Virginia Justice ProjectVirginia Justice Project

Updated immigration consequences Updated immigration consequences of Virginia criminal convictions by of Virginia criminal convictions by Capitol Area Immigrant’ Rights Capitol Area Immigrant’ Rights Coalition at Coalition at http://www.caircoalition.org/what-we-http://www.caircoalition.org/what-we-do/vjp/vjp-immigration-do/vjp/vjp-immigration-consequences-resources/consequences-resources/

Questions?Questions?

Hugo ValverdeHugo Valverde 757-422-8472757-422-8472 hugo@valverderowell.comhugo@valverderowell.com