quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 If your client does not have an immigration hold and does not appear to be going into immigration custody, it may be better to mail such a statement to the defendant’s address. Advise him to take it to an immigration lawyer at the first opportunity. Review the documents that record the plea, such as the charging document including any written amendments, written plea agreement, the minute order (e.g., showing charge was amended) and the abstract of judgment. Make sure that these records correctly reflect the disposition you worked out, and do not contain any inconsistent information. In particular, ensure that the plea to a Charge refers to the charge as amended, if applicable, and not to the original charge. If a document will be helpful in immigration proceedings, give a copy to the client. Document in your file the advice given to the defendant. In particular, note that the defendant relied on a particular understanding of the law in taking the plea. This may provide evidence later on, if immigration laws change (which they often do), that your client justifiability relied on the law in agreeing to take the plea. 9. Give the defendant specific warning about future potential immigration risks. A noncitizen who is removed and returns illegally to the United States faces a significant federal prison sentence if apprehended (see Part D, supra). A noncitizen with a conviction who is not removed should not leave the U.S. without expert advice, because she might be inadmissible and may lose her status. A noncitizen who might be deportable should avoid any contact with the immigration authorities, including renewing a green card, applying for a citizenship, and pursuing a pending application, until an expert immigration practitioner advises him. 10. If there is an appeal, give the defendant a copy of the date-stamped notice of appeal. This includes an appeal by a slow plea, as described in Step 5, supra. In the Ninth Circuit, an appeal means that there is no “conviction” to serve as a basis for immigration detention, removal, or other consequence. Immigrant Legal Resource Center N-29
California Quick Reference Chart and Notes February 2010 § N.2 Definition of Conviction and How to Avoid A Conviction for Immigration Purposes (For more information, see Defending Immigrants in the Ninth Circuit, Chapter 2, §§ 2.1-2.5, www.ilrc.org/criminal.php) The Big Picture: Most, although not all, immigration consequences require a conviction. If counsel can obtain a disposition that is not a conviction, the immigration case might be saved. This Note discusses which dispositions constitute a conviction for immigration purposes, and how to avoid a conviction. However, counsel also must be aware of the immigration penalties based on mere conduct, even absent a conviction. A noncitizen might be found inadmissible or deportable if immigration authorities have evidence that the person engaged in prostitution, made a false claim to citizenship, used false immigration or citizenship documents, smuggled aliens, is or was a drug addict or abuser, admits certain drug or moral turpitude offenses, and, especially, if the government has “reason to believe” the person ever has been or helped a drug trafficker. See relevant Notes; for a discussion of the controlled substance conduct grounds, see § N.8 Controlled Substances. Apart from that, however, a conviction is required. A. Overview In almost all cases, once a defendant in adult criminal court enters a plea of guilty, a conviction has occurred for immigration purposes. This is true even if under state law there is not a conviction for some purposes, for example under California Deferred Entry of Judgment. That is because the immigration statute contains its own standard for when a conviction has occurred, which it will apply to evaluate state dispositions regardless of how state law characterizes them. The statute provides that a conviction occurs: • Where there is “a formal judgment of guilt of the alien entered by a court” or, • “if adjudication of guilt has been withheld, where … a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and … the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. 35 Thus a guilty plea plus imposition of probation, fee, jail or counseling requirement will equal a conviction for immigration purposes, even if the plea is later withdrawn upon successful completion of these requirements. 36 The Board of Immigration Appeals (BIA) found that a 35 INA § 101(a)(48)(A), 8 USC § 1101(a)(48)(A). 36 Murillo-Espinoza v. INS, 261 F.3d 771 (9 th Cir. 2001). N-30 Immigrant Legal Resource Center
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