quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 Introduction: Why Bother? What to Do? 2 [T]he procession moved on, three of the soldiers remaining behind to execute the unfortunate gardeners, who ran to Alice for protection. 'You shan't be beheaded!' said Alice, and she put them into a large flower-pot that stood near. The three soldiers wandered about for a minute or two, looking for them, and then quietly marched off after the others. --- Alice in Wonderland, Lewis Carroll The immigration consequences of a criminal conviction can be barbaric, and the procedure would make Alice (or Kafka) feel at home. In the majority of the cases, the one person who can stand between the immigrant and these consequences is you, the criminal defense practitioner. How bad could it be? Approximately one in six California criminal defendants is a noncitizen. 3 Any noncitizen, including a lawful permanent resident (“green card” holder) is vulnerable to “removal” (deportation), if he or she is convicted of the wrong offense. Once there is an adverse conviction, the immigration system works to force the person to accept removal. If a noncitizen attempts to contest being removed based on a conviction, in most cases she or he will be detained for the duration of the removal proceedings including through federal appeals -- from several months to a few years. Typically the person will be transferred to an isolated immigration detention facility hundreds of miles from the person’s home (from California, often to Arizona or outside the Ninth Circuit). 4 Documented conditions at these facilities include insufficient food, exposure to extreme heat or cold, and lack of medical attention in some cases leading to preventable fatalities. The removal case may be conducted by video before a judge in another city or state, often using incompetent translators. The effect is to coerce many detainees to abandon valid legal appeals and request their own deportation. Unfortunately, this is the good scenario. In “administrative removal proceedings,” any noncitizen who is not a lawful permanent resident and who is charged with having been convicted of an aggravated felony will be ordered removed in a proceeding that has less due 2 Some of this introduction draws from the writings of Jonathan Moore of the Washington Defender Association, a tireless and poetic advocate. 3 This is an approximation. The 2000 and 2005 census reports estimate that one in four persons residing in California is foreign-born. See, e.g., See “Profile of the Foreign-Born Population of the United States, 2000,” from the U.S. Census Bureau’s reports. www.census.gov. Up to one third of these may have become U.S. citizens, which leaves approximately one in six residents as noncitizens. The non-citizen population is proportionally represented as criminal defendants. See Rumbaud and Ewing, “The Myth of Immigrant Criminality,” http://www.americanimmigrationcouncil.org/special-reports/myth-immigrant-criminality-and-paradox-assimilation. 4 In 2009 over 50% of detainees were transferred to a new facility, over 25% were transferred multiple times. For more statistics on immigration detention go to http://www.hrw.org/en/node/86789 and http://trac.syr.edu/immigration/reports/220/. Immigrant Legal Resource Center N-5
California Quick Reference Chart and Notes February 2010 process than traffic court. The complex legal decision on the aggravated felony charge is made by a non-attorney immigration officer, signed off on by a second officer, with no recourse to review by an immigration judge or other authority. At this time the majority of noncitizens who are formally deported as aggravated felons never see a judge. 5 In both types of removal proceedings there is no court-appointed counsel to assist the immigrant. The vast majority of noncitizens in removal proceedings are unrepresented and face the government trial attorney and Immigration Judge (or in administrative proceedings, the government officer as judge) with no advice or support. What is so bad about being “removed”? For some defendants, not so much. They care much more about the possible criminal penalties than immigration consequences, and the defense should be conducted accordingly. However, many other immigrant defendants are desperate to remain in the U.S. and would sacrifice almost any other consideration to avoid removal. Consider that: ‣ Noncitizens are deeply integrated into the families and population of the United States, and California in particular. For example, the 2000 census found that 47% of the children residing in California live in a household headed by at least one foreign-born person. 6 A 2006 study found that on average, over 50% of noncitizens charged with being deportable for a so-called aggravated felony conviction (which can include a single non-violent misdemeanor) have resided in the United States for more than fifteen years. Twenty-five percent of these noncitizens have resided here for more than twenty years. 7 ‣ Regardless of family, some clients desperately want to avoid being deported back to countries where it is likely that they will be persecuted based on race, religion, or social group. Others fear returning to countries where there is generalized violence, civil war, or little or no functioning government. A great number face return to countries where there is economic devastation, and/or where they know no one and in many cases do not speak the language. ‣ Why should they care, when they’ll just come right back? Whether they know it or not, many deported noncitizens will face significant U.S. prison terms. Some noncitizens, 5 See study by the Immigration Project at the Transactional Access Records Clearinghouse (TRAC) report showing that the majority of noncitizens charged and removed as aggravated felonies have no court hearing whatsoever, pursuant to a decision of an immigration officer. See “New Data on the Processing of So-Called Aggravated Felons” (2006), available at http://trac.syr.edu/immigration/reports/175/.” In 2005, over 25,000 persons were ordered removed as aggravated felons, over half of them with no hearing before a judge or appellate review. The aggravated felony ground is only one of several crimes-based grounds for deportation, and it is the only charge under which a noncitizen may be ordered removed by an officer rather than a judge. 6 See “Profile of the Foreign-Born Population of the United States, 2000,” from the U.S. Census Bureau’s reports, www.census.gov. 7 See “How Often is the Aggravated Felony Statute Used?” (2006), a study by the TRAC Immigration Project, of how many persons were ordered removed by immigration judges, available at http://trac.syr.edu/immigration/reports/158/. The aggravated felony ground is only one of several crimes-based grounds for deportation. N-6 Immigrant Legal Resource Center
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