A PRIMER FOR OHIO CRIMINAL DEFENSE ATTORNEYS REPRESENTING FOREIGN-BORN DEFENDANTS
An Introduction to Status
The immigration consequences of criminal activity will often depend on a person’s immigration law status. Not every foreign-born defendant is the same under the law. Therefore the first step in representing a foreign-born client is to understand the person’s status. Immigration law contains many types of “status” (some situations not being a status at all). There are lawful permanent residents (the “green card holder”); asylees and refugees, nonimmigrant students, investors, intra-company transferees, doctors, entertainers and athletes—just to name a few. Some individuals are lawfully here, although in something less than a traditional status, such as deferred action, parole, or temporary resident status. A criminal attorney need not understand every status, but should initially ask and ascertain, then look for further clarification. Some individuals entered the United States illegally by crossing over the border, while others were admitted lawfully but have since overstayed their visa. The first question in any consultation should be “what is your status?” When and how did you arrive; do you have a copy of any documentation?
Status Determines Applicable Chapter of Law
There are two chapters, or sections, of immigration law that deal with removability and other consequences because of a criminal conviction, or suspected criminal activity.
An individual’s status determines which chapter applies. These chapters are lists of grounds that may trigger removal (deportation). The lists, or chapters, are similar—but they are different. Upon determining how an individual arrived in the United States, and what is their status—or lack thereof—a criminal attorney can look to the chapter and determine if any grounds apply to the criminal charge(s) the client is facing.
U.S.C. § 1182 (INA § 212(a))
The undocumented border crosser (“entry without inspection”), persons paroled-in, and persons arriving at a port-of-entry (“arriving aliens”) are subject to this chapter.
8 U.S.C. § 1227 (INA § 237(a))
The lawful permanent resident, anyone who was originally lawfully admitted, whether in status now, or not (such as, an overstay nonimmigrant) are subject to this chapter.
The Law of Mandatory Detention: 8 U.S.C. § 1226(c) [INA § 236(c)]
Before discussing basic grounds of removability, it is key to identify and warn against the significant consequence of mandatory detention. The immigration law requires that Immigration and Customs Enforcement (ICE) detain a non-citizen removable for certain criminal offenses pending removal proceedings. An individual client (and his lawyer) may think they have struck a good deal by receiving an equitable diversion or probation without imprisonment—only to find the client is detained and held without bond in a maximum-security ICE facility. Generally, the crimes that trigger mandatory detention are:
For persons “deportable” under 8 U.S.C. § 1227 only: a crime involving moral turpitude if sentenced to one year.
For persons removable under either chapter, a conviction for controlled substance violation, multiple crimes involving moral turpitude, firearms offenses, or aggravated felony triggers mandatory detention.
Defining “Conviction” under 8 U.S.C. § 1101(a)(48) [INA § 101(a)(48)]
Another important preliminary concept is the definition of “conviction.” The INA defines conviction differently from criminal law; any finding of guilt, but also a no contest plea and adjudication of guilt withheld. This definition includes diversion if the defendant must enter a plea (even if that plea is later vacated). A diversion program with no plea is a safe harbor that does not qualify as a “conviction.”
Also, under the same section defining a conviction, a suspension of a sentence (execution of the term of imprisonment) is not recognized; the original sentence of imprisonment
Imposed is the sentence for immigration law. 1 year suspended is a one-year prison sentence, even though it is suspended. This is important because some criminal offenses become aggravated felonies or removable offenses based on the term of imprisonment imposed: one year or one year and a day is often the line of demarcation. That execution of sentence was suspended via probation is not relevant.
The Most Common Grounds of Removability under Title 8
Grounds of inadmissibility or deportability:
• Crimes involving MORAL TURPITUDE (exists at both § 1182 and §1227)
• AGGRAVATED FELONIES (only § 1227) (a list of different offenses found at § 1101(a)(43))
• CONTROLLED SUBSTANCES (exists at both §§ 1182 & 1227)
• FIREARMS (exists only at §1227)
• DOMESTIC VIOLENCE and CHILD ABUSE (only at § 1227)
The above classifications, or genre, of crimes is not all-inclusive. Grounds involve alien smuggling, money laundering, export violations, visa fraud, etc. The best way to determine if your client’s criminal charge (or conviction) trigger a ground of removability is to (1) determine their status, and (2) search the chapter with the proverbial fingertip to identify a potential match.
Immigration Law Utilizes a Categorical Approach
Mostly, immigration law classifies crime and matches it to a potential immigration law ground through a categorical approach (there are a few “circumstance specific” exceptions). This elements-based approach is similar to criminal law, and especially criminal sentencing cases. See, e.g.: Descamps v. United States, 133 S. Ct. 2276 (2013). Under a categorical approach, the underlying facts or circumstances do not determine the immigration law classification. Necessary elements of the criminal statute of conviction determine the nature, or classification, of the crime. Necessary Elements are the facts a jury must find to convict. A statute is divisible only "when a statute lists multiple, alternative elements, and so effectively creates several different crimes.” Where a statute is divisible, a modified categorical approach applies, and the adjudicator looks to the record of conviction. A statute that is missing an element, or overbroad (broader than the generic crime) is not divisible. Whether either the categorical or modified categorical approach does not reveal which portion of the criminal statute applies, assume the least culpable (or minimum) conduct. A good strategy is to negotiate a plea that focuses on the non-removable conduct of the statute, or in the alternative, charge the entire statute, such that the minimal conduct rule applies. Id.
A Look at Certain Genres of Crime
With the Ohio Revised Code and a federal criminal code, there are too many specific crimes to cover in a webpage. The following discusses certain genres of crime and addresses whether they potentially fall under a certain immigration law classification, or better said, ground of removability. Crimes of moral turpitude are defined by case law and generally speaking involve intentional or knowing acts of violence that cause bodily injury. Crimes of fraud, deceit, and permanent takings are also CIMTs. Aggravated felonies are a list of different crimes defined by statute at 8 U.S.C. § 1101(a)(43). The immigration law also contains a distinct section for child abuse and domestic violence crimes at 8 U.S.C. § 1227(a)(2)(E).
Assault and Battery
Crimes of the “violence genre” are potentially moral turpitude (“CIMT”) and/or aggravated felonies.
CIMT: intentional causation of bodily harm 8 U.S.C. § 1182(a)(2)(A)(i), § 1227(a)(2)(A) Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996) Matter of Sanudo, 23 I&N Dec. 968 (2006)
Aggravated felony: defined by 18 U.S.C. § 16, the intentional use of violent, active physical force, if one year or more imprisonment imposed.8 U.S.C. § 1101(a)(43)(F)
Cases: Leocal v. Ashcroft, 543 U.S. 1 (2004); Johnson v. U.S., 559 U.S. 133 (2010)
Controlled Substance Violations
Violation of any state or federal law or regulation relating to a federally controlled substance is a ground of removability under 8 U.S.C. §§ 1182(a)(2)(A)(i)(II) and
8 U.S.C. § 1227(a)(2)(B) The drug must be a “controlled substance” as defined by federal law. Mellouli v. Lynch, 135 S.Ct. 1980 (2015). For persons who fall (based on status) under 8 U.S.C. § 1227 (the deportability track) there is an exception for a single offense of simple possession of marijuana, less than 30 grams.
Illicit trafficking in a controlled substance, or any federal felony, as defined by federal law, is an aggravated felony. 8 U.S.C. § 1101(a)(43)(B)
To qualify as trafficking, the conduct must be punishable as a felony under federal law. First time simple possession does not qualify; nor does a subsequent conviction where state does not have a recidivist statute. Carachuri v. Holder, 560 U.S. 563 (2010)
Also, to be a categorical match, the state statute must include a distribution without remuneration provision. Moncrieffe v. Holder, 133 S.Ct. 1678 (2013).
The immigration law also punishes controlled substance traffickers under a broad provision that includes reason to believe, or suspicion, without an actual conviction. 8 U.S.C. § 1182(a)(2)(C).
Fraud or Deceit Crimes; Theft
An offense involving fraud or an intent to deceive with a loss to a victim exceeding $10,000 is an aggravated felony. 8 U.S.C. § 1101(a)(43)(M)(i). This particular section does not take a categorical approach as to loss (although a categorical approach applies to the elements of fraud or deceit.) Amount of “loss” takes a circumstance specific approach that considers all relevant evidence. Points to consider in representing a foreign-born defendant include minimizing the loss, severing co-defendants, and highlighting where financial loss in the sentence is based on relevant conduct, as opposed to actual loss to a victim tethered to the count of conviction. Defense counsel should consider an alternate plea to theft, keeping the conviction below one-year imprisonment.
The following cases are relevant to understanding the distinction between “loss” in the criminal context as opposed to loss under 8 U.S.C. § 1101(a)(43)(M)(i). Nijhawan v. Holder, 557 U.S. 29 (2009); Obasohan v. Att’y Gen., 479 F.3d 785 (11th Cir. 2007); Singh v.Att’y Gen., 677 F.3d 503 (3rd Cir. 2012); Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007).
Theft or burglary (including receipt of stolen property) will be aggravated felonies if a term of imprisonment of at least one year is imposed. 8 U.S.C. § 1101(a)(43)(G).
Based on case law, a crime that involves intentional fraud or deceit will be a crime involving moral turpitude. Theft statutes may be crimes involving moral turpitude. For both the aggravated felony and moral turpitude classifications, there is a generic definition of “theft” that generally involves a permanent taking or deprivation, as opposed to a temporary appropriation. In other words, not all “theft” crimes will be removable offenses; it depends on the language of the statute and whether a permanent deprivation is involved. Also note that both chapters of removability contain petty offense exceptions for first time minor offenses. Petty offense exception provisions often apply to first time theft offenses. See: 8 U.S.C. § 1182(a)(2)(A)(i)(I) and § 1227(a)(2)(A).
Defense counsel will want to work with a qualified immigration attorney in their jurisdiction to understand the implications of the particular state statute at issue.
Overall Good Strategies for Defense Counsel
Avoid a “conviction” through diversion that does not require a plea. Remember a plea = conviction, even if later vacated through a rehabilitative statute.
Keep young clients in Juvenile Court; adjudications of delinquency are not criminal “convictions” for immigration purposes.
For crimes of theft and violence, aim for a sentence of less than one-year imprisonment; suspensions of sentence do not count.
For offenses involving a child or domestic violence victim, try to negotiate a plea to a generic battery or assault statute that does not specify the victim. Whether these types of cases take a circumstance-specific, as opposed to categorical approach, is an area of litigation in flux—so eliminating the nature of the victim may or may not be a safe harbor, but it is a good start.
Sometimes, the removability provision is based on financial loss or dollar amounts, not sentence of imprisonment. Keep financial loss under $10,000; if restitution or loss is based on “relevant conduct” outside the actual count of conviction, specify this in the record verbally and in writing. Consider swapping theft for the fraud, bearing in mind that the sentence must be under one year in a theft case.
Always negotiate for the least culpable conduct described by statute. Aggravated batteries and assaults should be negotiated down to simple battery. Consider the categorical approach, and pinpoint the least culpable conduct described by the statute: focus on that minimal language in the record of conviction. Controlled substance sale or trafficking should be negotiated down to straight possession, or at least distribution without mention of the type of drug.
If considering a plea, always consider creative sentencing. Sometimes a short jail sentence is worth it to avoid immigration consequences. For example, John Client is offered a 6- month jail sentence to simple assault and battery or a 1 year suspended sentence. John is better off immigration-wise taking the 6-month sentence because the one-year sentence would be considered an aggravated felony. Also, if multiple counts on a criminal case, consider breaking the sentence up amongst the counts. Instead of one year on one count, do six months on count 1 and six months on count 2. This type of structuring may avoid potentially devastating immigration consequences to your client later.
Think about potential relief down the road. Remember that as a criminal attorney, one may not be able to avoid removability altogether, but can fashion a plea that will allow the client to qualify for relief from removability. The law contains certain waivers, and the waivers have eligibility criteria. With consideration of the criteria, the attorney may craft a conviction and/or sentence wherein the client may still face deportation, but nonetheless qualify for a defensive pardon.
Consider partnering with an immigration attorney experienced in criminal-immigration law; not all immigration attorneys practice in this area. Always clarify that the proposed immigration law partner does this kind of work on a regular basis. Some public defender offices will allot funds to private attorneys handling PD cases for immigration law counsel participation. The time for an immigration attorney to be involved is at the earliest possible stage of the criminal process, not after a plea and judgment are entered.