Criminal Defense of Immigrants

 

(A)  Immigration Status.  The first question whether the client has a passport or any documents or letters from the INS.  If so, make photocopies.  Counsel may need to ask an immigration attorney to interpret the documents.

 

                Often, a person does not know exactly what his or her immigration status is.  S/he may have applied for some relief and may believe wrongly that s/he now has a green card.  If a person has a green card, s/he may use shorthand and describe him- or herself as a “citizen.”  The immigration document itself is the best starting point for unraveling the story.  Also, it will give the client’s “A number” (an eight‑digit number beginning with the letter A) which is the key to finding his or her immigration record when you submit an FOIA request or make other inquiries.[84]

 

                Answering the questions in the Basic Immigration Status Questionnaire, see Appendix A, infra, is necessary to determine a person’s current or potential immigration status.  If an immigration specialist is consulted, s/he will need to know this information in order to diagnose the client’s situation.

 

Note: Often people escorted out of the U.S. by the immigration authorities do not understand whether they are being removed or taking “voluntary departure.”  Removal cannot take place unless a client is first brought before an immigration judge.[85]  Many clients from Mexico accept voluntary departure after being arrested by the border patrol and being persuaded to sign a waiver form and accept a bus ride across the border.  Immigration or FBI records provide a definitive answer.

 

                In general, for purposes of determining the immigration consequences of criminal cases, it is useful to group noncitizens into the following categories:

(1)        Lawful permanent residents, or green card holders, have been lawfully admitted to the United States to live and work permanently.

 

                The chief concern of a lawful permanent resident is usually to avoid deportation.  An LPR who has resided in the United States in that status for a certain number of years (usually five, or, for spouses of U.S. citizens, three), may apply for naturalization and become a United States citizen.[86]  This person may also care about preserving eligibility to naturalize by avoiding any conviction or other crime-related disability that might disqualify him or her from naturalizing.  They may also be concerned about crime-related grounds of inadmissibility, which can prevent them from returning after travelling outside the United States.  This problem can arise if they are arrested at a port of entry returning from abroad for a conviction that might trigger inadmissibility.  An LPR who travels outside the country for a period less than 180 days is generally not subject to the rules of admissibility upon returning, but one exception to this rule (of many) occurs when s/he has committed an offense that triggers inadmissibility.[87]

 

                If an LPR is unable to avoid a conviction that triggers deportation, inadmissibility, or disqualification from naturalization, s/he may still be able to qualify in immigration court for some sort of waiver or discretionary relief from these disabilities.  See Chapter 24, infra.  For example, if the client has resided in the U.S. continuously for a period in excess of seven years before commission of a deportable offense resulting in a conviction, s/he will be eligible to apply for cancellation of removal to avoid deportation,[88] or INA 212(h) [89] relief to avoid inadmissibility, if s/he can avoid an aggravated felony conviction. 

 

(2)        Persons lawfully admitted into the United States on a Non-Immigrant visa, unlike LPRs, “enter the U.S. for a temporary period of time and are restricted to the activity consistent with their visas.  Unlike immigrants [LPRs], . . . they are more likely to obtain waivers of inadmissibility.”[90]

 

                Since they have been admitted into the U.S., they are subject to the grounds of deportability.  If they wish to adjust status, and obtain immigrant visas so they have Lawful Permanent Resident status, or if they wish to leave the U.S. and return, they must avoid inadmissibility.  All grounds of inadmissibility, including all crime-related grounds, can be waived.  Only certain security-related grounds may not be waived.[91]  Nonimmigrant visas include visitor (B-1, B-2), student (F, M, J, and H-3), business (H, L, E, I, O, P, Q, and R), diplomatic (A, G, C-2, C-3), family-related (K-1, K-3, and V), transit and crew (C, TWOV, D, N), and law enforcement visas (S [for informants], T, and V).[92]

 

(3)        Refugees and persons granted political asylum[93] have been admitted to the United States or allowed to remain in the United States because of a well-founded fear of persecution in the native land, on account of race, religion, nationality, membership in a particular social group, or political opinion.  A refugee applied for this status before entry into the United States, and was granted a visa, and then admitted into the United States.  A person granted political asylum, also called an asylee, entered the U.S. in some other status or unlawfully and then applied for and was granted asylum after entry into the United States.  Neither of these groups have yet been granted LPR status, but are eligible to adjust status to LPR after being present in the U.S. in refugee/asylee status for at least one year.

 

                It is obviously especially urgent for these persons to avoid deportation to the place where they will likely be persecuted.  See § 3.61, infra.  Refugees and asylees occupy slightly different positions under immigration law.[94]

 

                Refugees have been lawfully admitted into the U.S., and are therefore subject to the grounds of deportation.  However, in practice, a refugee should be subject to removal proceedings only if s/he is inadmissible, so avoiding the crime-related grounds of inadmissibility is the most important goal.  If s/he cannot avoid inadmissibility, s/he may be able to adjust status to LPR under INA § 209[95] and so avoid removal, so long as s/he is not inadmissible on the ground the DHS has reason to believe s/he is or has ever been a drug trafficker (even if there is no conviction of drug trafficking),[96] and thereby become disqualified from the special waiver of inadmissibility for refugees and asylees.[97]  If s/he cannot adjust status to LPR, the next goal is to preserve eligibility for the relief of withholding of removal by avoiding conviction of a “particularly serious crime.”[98]

 

                A person granted asylum, however, should not be placed in deportation proceedings unless convicted of a “particularly serious crime.”[99]  Most asylees want to obtain LPR status, and so must avoid triggering a ground of inadmissibility.  If this is not possible, they wish to preserve eligibility for the special waiver or for withholding of removal, just as refugees do.

 

(4)        A noncitizen who might be eligible now or in the future to obtain lawful permanent resident status, political asylum, or some other status that offers protection against deportation.

 

                Other noncitizens, who are not in lawful status, may still have deep roots in the United States and care very deeply about preserving eligibility for a number of other immigration statuses or forms of relief, principally eligibility for adjustment of status to LPR (through avoiding inadmissibility), or eligibility for relief from persecution by obtaining political asylum, withholding of removal, or relief under the Convention Against Torture (by avoiding a conviction of a “particularly serious crime”).[100]

 

(5)        A noncitizen who does not have lawful status, nor any hope of

                      obtaining lawful status.

 

                Even if the client does not appear to be eligible now or in the future to obtain LPR status, asylum, or other relief from removal, or does not desire to remain in the United States now or to return lawfully in the future, it may still be in the client’s interest to avoid certain criminal dispositions that trigger immigration disabilities. 

 

(1)       The client may change his or her mind in the future, and be much better off without a roadblock to obtaining lawful status. 

(2)       Even if s/he is removed from the United States, the client may wish to obtain various immigration benefits such as voluntary departure (instead of forcible removal), early release from prison for removal, and avoiding enhanced criminal liability for future illegal reentry into the United States after deportation.

 

Therefore, the client should if possible avoid a disposition triggering inadmissibility, or an aggravated felony conviction, or a disposition that would disqualify him or her from early release for removal in an appropriate case.

 

[84] See § § 3.31-3.33, infra, on how to verify the client’s immigration situation.

[85] But see § 15.22, infra.

[86] See § 24.13, infra.

[87] See INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).  See § 18.5, infra. 

[88] See § 24.4, infra.

[89] See § 24.29, infra. 

[90] I. Kurzban, Kurzban’s Immigration Law Sourcebook 390 (AILF, 8th Edition, 2002-2003) (emphasis supplied).  See also § 24.30.

[91] These include seeking to enter the U.S. to engage in espionage, sabotage, any other unlawful activity, any activity to oppose or overthrow the U.S. government by force or other unlawful means, where the government has reasonable grounds there would be potentially serious foreign policy consequences from admitting the person, and for participants in Nazi persecutions or genocide.  INA § 212(d)(3), 8 U.S.C. § 1182(d)(3).

[92] See Kurzban, supra, Chap. 5.

[93] See § 24.18.

[94] See, e.g., § § 17.8(E), 24.20, infra.

[95] INA § 209, 8 U.S.C. § 1159

[96] See INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i).

[97] See INA § 209(c), 8 U.S.C. § 1159(c) (special waiver of most criminal grounds of inadmissibility may be granted “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.”).  See § 24.20, infra.

[98] See § § 24.19, 24.31, infra.

[99] See § 24.19, infra.

[100] See Chapter 24, infra.