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The Intersection of Federal Criminal Defense and Immigration Law

The Intersection of Federal Criminal Defense and Immigration Law . Halerie Mahan. Client Immigration Status. Defendant’s status can affect consequences of conviction Categories Citizen Lawful Permanent Resident (LPR) Lawfully present non-LPRs Undocumented Individuals

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The Intersection of Federal Criminal Defense and Immigration Law

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  1. The Intersection of Federal Criminal Defense and Immigration Law

    Halerie Mahan
  2. Client Immigration Status Defendant’s status can affect consequences of conviction Categories Citizen Lawful Permanent Resident (LPR) Lawfully present non-LPRs Undocumented Individuals ASK YOUR CLIENT IF HE’S EVER HAD STATUS!
  3. Client Immigration Status Citizen – INS has no jurisdiction Derivative citizenship issues LPR – indefinite legal status Lawfully present non-LPR Asylees, Refugees, Visitors, Visa-holders, Temporary Protected Status Undocumented individuals Expired visa No permission
  4. What is a Conviction? Jury or Judge conviction Guilty plea Nolocontendere plea Admission of sufficient facts to warrant finding of guilt Shepard documents AND Judge orders punishment/penalty/restraint on liberty
  5. Consequences of Conviction Offenses Resulting in Inadmissibility (8 U.S.C. § 1182(a)(2)) Crime of Moral Turpitude Controlled Substance Violations Conviction of 2 or more crimes with aggregate sentence of 5 years or more Prostitution
  6. Consequences of Conviction Deportable Offenses 8 U.S.C. § 1227(a)(2) Crimes of Moral Turpitude Aggravated Felonies Controlled Substance offenses Firearms Offenses DV Crimes
  7. Consequences of Conviction What the heck is Moral Turpitude? Fraud/theft offenses Violent offenses Crimes in which malice is an element Some sex offenses in which “lewd” intent is an element NOT negligence crimes
  8. Consequences of Conviction Crimes Involving Moral Turpitude Petty Offense Exception Single misdemeanor CIMT with 6 months or less of jail time may qualify for immigration relief Avoiding Plead to alternative/lesser-included offense that doesn’t require finding of Knowing/intentional Deceit/fraud
  9. Consequences of Conviction Deportable Offenses Consequences Deportation Bars defendant from re-entering for a certain timeframe (generally 10 to 20 years)
  10. Consequences of Conviction Aggravated felony Consequences Permanent bar to re-entry 8 U.S.C. § 1101(a)(43) Lists aggravated felonies
  11. Consequences of Conviction Aggravated Felony Types Charge based Sentence based Simple possession is NOT an aggravated felony Lopez v. Gonzales, 549 U.S. 47 (2006) PWISD Marijuana may not be an aggravated felony Moncrieffe v. Holder , No. 11-702 (2013) “Small amount of marijuana” “No remuneration”
  12. Consequences of Conviction Charge-Based Murder - 1101(a)(43)(A) Rape - 1101(a)(43)(A) Sexual Abuse of a minor - 1101(a)(43)(A) Non-citizen Smuggling - 1101(a)(43)(N) Drug Trafficking - 1101(a)(43)(B) Many firearms offenses - 1101(a)(43)(C), (E) Illegal re-entry after aggravated felony - 1101(a)(43)(O)
  13. Consequences of Conviction Sentence-based (usually 1+year) Theft - 1101(a)(43)(G) Burglary - 1101(a)(43)(G) Receipt of Stolen Property 1101(a)(43)(G) Bribery 1101(a)(43)(R) Counterfeiting - 1101(a)(43)(R) Forgery - 1101(a)(43)(R) Obstruction of Justice - 1101(a)(43)(S) Perjury - 1101(a)(43)(S) Crime of violence – 1101(a)(43)(F)
  14. Analysis of Consequences Categorical Approach Descamps v. U.S. (133 S. Ct. 2276) (2013) Modified Categorical Approach Shepard Documents (Shepard v. U.S., 544 U.S. 13, (2005)). Indictment Plea Colloquy/Agreement Judgment Jury Instructions
  15. Attorney Obligations Padilla v. Kentucky, 559 U.S. 356 (2010) Advise client of immigration consequences of plea Where clear – correct affirmative advice Where unclear – advise on risk Failure to do so = IAC NOT retroactive (Chaidez v. U.S., 133 S.Ct. 1103 (2013))
  16. Attorney Obligations Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376 (202). Need to advise client of ALL plea offers Failure to do so = IAC
  17. Detention and non-citizens IMMIGRATION DETAINERS HAVE NO BEARING ON RISK OF FLIGHT CALCULUS!!!! There is a boatload of law out there on this! Recent magistrate order out of Southern District of Alabama, United States v. Fernando Guardian Blas, 13-0178-WS-C (August 20, 2013). Government has to decide whether to deport or whether to prosecute. Can’t have it both ways!
  18. Immigration and Federal Criminal Law Short version: Know the immigration consequences of your client’s conviction Don’t just waive detention hearings because ICE filed a detainer! Questions?
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