quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 § N.1 Using the Chart to Establish Defense Goals Based on Immigration Status; What are Deportability, Inadmissibility, and an Aggravated Felony; The Immigration “Strike”; and the Ten-Step Checklist (For more information, see Defending Immigrants in the Ninth Circuit, Chapter 1, www.ilrc.org/criminal.php) By Katherine Brady, Ann Benson and Jonathan Moore 9 A. Introduction: Gathering Facts and Resources B. What is the Meaning of “Inadmissible,” “Deportable” and “Aggravated Felony”? C. How to Determine Your Client’s Immigration Status and Create Defense Priorities 1. The U.S. Citizen or U.S. National Defendant (and what convictions can hurt them for immigration purposes) 2. The Undocumented Defendant 3. The Lawful Permanent Resident Defendant 4. The Asylee and Refugee Defendant 5. The Defendant with or Applying for Temporary Protected Status (TPS) 6. The Defendant with a Nonimmigrant Visa 7. The Defendant with Employment Authorization 8. The Mystery Status Defendant 9. The Absolutely Removable Defendant D. Caution: The Immigration “Strike” – How to Avoid a Plea that will result in a Severely Enhanced Sentence for a Noncitizen who May Re-enter the U.S. Illegally After Being Removed/Deported E. Checklist of Ten Steps in Representing a Non-citizen, from Interview through Appeal A. Introduction; Gathering Facts, Using Resources The Quick Reference Chart details which California offenses may make a noncitizen inadmissible, deportable or an aggravated felon. These three categories cover most of the ways that a conviction can hurt immigration status. (They don’t cover all, however. For example, a TPS applicant must not be inadmissible and also cannot be convicted of three misdemeanors or one felony. See Part C.5 below.) This section discusses how criminal defense counsel can use the analysis you get from the Chart, combined with information about the client’s particular immigration status and history to 9 This Note has been re-organized and rewritten to provide more specific advice to defenders. Parts of the Note borrow liberally from the public defender manual Immigration and Washington State Criminal Law, found at www.defensenet.org. We are grateful to Ann Benson, Jonathan Moore and the Washington Defender Association Immigration Project for their kind permission to use the materials. Immigrant Legal Resource Center N-9
California Quick Reference Chart and Notes February 2010 establish defense goals for individual noncitizen clients. The more information that you have about the client’s immigration and criminal history, the better the advice you will be able to give. Gather the Client’s Entire Criminal Record. To correctly identify a noncitizen’s defense goals in terms of immigration, defense counsel must have a complete record of all past convictions in the United States. (Foreign convictions are relevant as well, but gathering information on these may be beyond your resources.) Copy Immigration Documents, Complete an Immigration Questionnaire. If the client has any type of card, letter, or document pertaining to immigration status, photocopy it. This will provide immigration counsel with a treasure trove of information. Also, please complete the short “Client Immigration Questionnaire” or, if you have the resources, the “Expanded Client Questionnaire,” at § N.16. Assistance from paralegal staff or law clerks could expedite the fact gathering process. Even if the client is not able or willing to answer all of the questions, any information that you gain will be of help. Expert Assistance. To complete the analysis, ideally defense counsel should look at more comprehensive works and/or consult with an expert on crimes and immigration. See § N.17 “Resources.” See especially consultation services offered by the Immigrant Legal Resource Center (on a contract basis), the U.C. Davis Law School Immigration Clinic (limited free consultation for public defenders), special free consultation for Los Angeles Public Defenders, and the National Immigration Project of the National Lawyers Guild. A comprehensive manual on this subject, Defending Immigrants in the Ninth Circuit, is published by the group that writes this Chart and Notes. It contains extensive discussion of California offenses, immigration status and applications for relief, and other topics. See www.ilrc.org. B. What is the Meaning of “Inadmissible,” “Deportable,” and “Aggravated Felony”? 1. Overview The Immigration and Nationality Act (INA) contains three main statutory lists of offenses that damage immigration status or potential status. These are: ‣ Grounds of deportability, at 8 USC § 1227(a). A noncitizen who has been admitted to the United States but is convicted of an offense that makes her deportable can lose whatever lawful status she may have and be deported (“removed”). Conviction of a deportable offense poses a threat to lawful permanent residents and others who have secure status that they might lose. In contrast, a deportable conviction usually does not affect an undocumented immigrant, who does not have lawful status that can be taken away. The only exception is if the undocumented person might apply for some type of cancellation of removal. ‣ Grounds of inadmissibility, at 8 USC § 1182(a). A noncitizen who is inadmissible for crimes may be unable to obtain lawful status such as permanent residency; may be barred N-10 Immigrant Legal Resource Center
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