quick reference chart and annotations for determining immigration ...

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Introduction Note to Immigration Attorneys: Using the Chart. This chart was written for criminal defense counsel, not immigration counsel. It represents a fairly conservative view of the law, meant to guide criminal defense counsel away from potentially dangerous options and toward safer ones. Thus immigration counsel should not rely on the chart in deciding whether to pursue defense against removal. An offense may be listed as an aggravated felony or other adverse category here even if there are strong arguments to the contrary that might prevail in immigration proceedings. For a more detailed analysis of Ninth Circuit law, see cited sections of Defending Immigrants in the Ninth Circuit (www.ilrc.org, 2009) and other works in Note “Resources.” The Chart can provide guidance as to the risk of filing an affirmative application for a noncitizen with a criminal record. The Notes are concise and basic summaries of several key topics. 1. Using the Chart and Notes. The Chart analyzes adverse immigration consequences that flow from conviction of selected Arizona offenses and suggests how to avoid the consequences. Endnote annotations discuss each offense in greater detail. The Chart appears organized numerically by code section. Several short articles or “Notes” provide more explanation of selected topics. These include Notes that explain the Chart’s immigration categories, such as aggravated felonies and crimes involving moral turpitude, as well as those that discuss certain kinds of offenses, such as domestic violence or controlled substances. 2. Sending comments about the Chart. Contact us if you disagree with an analysis, see a relevant new case, want to suggest other offenses to be analyzed or to propose other alternate “safer” pleas, or want to say how the chart works for you or how it could be improved. Send email to AZchart@ilrc.org. This address will not answer legal questions. For consultations,see information about obtaining legal consults on cases “contract services” at www.ilrc.org. 3. Need for Individual Analysis. This Chart and Notes are a summary of a complex body of law, to be consulted on-line or printed out and carried to courtrooms and client meetings for quick reference. However, more thorough individual analysis of a defendant’s immigration situation is needed to give competent defense advice. For example, the defense goals for representing a permanent resident are different from those for an undocumented person, and analysis also changes depending upon past convictions and what type of immigration relief is potentially available. See Note “Establishing Defense Goals.” The Chart and Notes are best used in conjunction with resource works such as Brady, Defending Immigrants in the Ninth Circuit (citations to specific sections are included throughout these materials) or Tooby, Criminal Defense of Immigrants, and/or along with consultation with an immigration expert. See Note “Resources.” Ideally each noncitizen defendant should complete a form such as the one found at Note “Immigrant Client Questionnaire,” which captures the information needed to make an immigration analysis and is a diagnostic aid. Some offices print these forms on colored paper, so ii
that defenders can immediately identify the file as involving a noncitizen client and have the client data needed to begin the immigration analysis. 4. Disclaimer, Additional Resources. While federal courts have specifically affirmed the immigration consequences listed for some of these offenses, in other cases the chart represents only the authors’ opinion as to how courts are likely to rule. In addition there is the constant threat that Congress will amend the immigration laws and apply the change retroactively to past convictions. Defenders and noncitizen defendants need to be aware that the immigration consequences of crimes is a complex, unpredictable and constantly changing area of law where there are few guarantees. Defender offices should check accuracy of pleas and obtain up-to-date information. See books, websites, and services discussed in Note “Resources.” But using this guide and other works cited in the “Resources” Note will help defenders to give noncitizen defendants a greater chance to preserve or obtain lawful status in the United States – for many defendants, a goal as or more important than avoiding criminal penalties. Acknowledgements The Chart began with the impressive efforts of Ryan Moore, now with the Federal Defender’s Office of Arizona, when he was a law student at the University of Arizona. Since that time Katherine Brady and Angie Junck of the Immigrant Legal Resource Center (San Francisco); Holly Cooper of the Florence Immigrant and Refugee Rights Project (Florence), now teaching at the University of California Davis School of Law (Davis, CA); and Beth Houck of Maricopa County Office of the Public Defender (Phoenix) have been the primary authors. In 2008, 2010, and 2012, Kara Hartzler of the Arizona Defending Immigrants Partnership revised and expanded the Chart. The ILRC and FIRRP are grateful to our colleagues in the national Defending Immigrants Partnership and to the Gideon Project of the Open Society Foundation for funding the national project, and providing support to the Arizona project in 2011-2012.. Copyright 2012 Immigrant Legal Resource Center and Florence Immigrant and Refugee Rights Project. Permission to reproduce is granted to criminal and immigration defense attorneys and advocates only. If you use these materials in a training, please notify AZchart@ilrc.org, for our reporting purposes. iii
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