National Defending Immigrants Partnership Training

Advanced Track—

Day One, Morning

Trainees Report Back

What has been your role as in-state or in-house immigration expert for defenders?

What feedback, positive or negative, have you received from colleagues?

What significant hurdles have you faced, if any, in playing this role?

Selected Advanced Topics and Exercises

Unit 1: Firearms OffensesUnit 2: AttemptsUnit 3: Selected Relief

Unit 1: Firearms Offenses

Purchase, sale, offering for sale, exchanging, using owning, possessing, carrying.

Unless also an aggravated felony (gunrunning, crime of violence) relief for most non-citizens still available even if deportability sustained on this ground alone.

Unit 1: Firearms Offenses 2 —Moral Turpitude Issues

Assault OffensesAn assault offense involves moral turpitude if

either: – the crime as defined requires a conviction

a specific intent to injure; or – requires recklessness and serious bodily

injury. Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996). 

Unit 1: Firearms Offenses 3

Does not include an enhancement for use of a firearm.

Impact unclear if “enhancement” is really a separate element of offense under Supreme Court’s analysis in Blakely in a mandatory guideline state.

Washington 3rd Degree Assault

Defendant charged with under a statute that punishes:

a person who “with criminal negligence causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause conscious suffering”

Complaint alleges that defendant used a gun to commit the offense

Assault Continued

Is a person who pleads to indictment convicted of:– a firearm offense for “using a gun in

violation of law”?– a crime involving moral turpitude for

inflicting pain?

Firearm Offenses Continued

Scope of Record:

If the statutory definition of the offense does not involve a weapon, then a conviction is not a firearm offense even if the record of conviction shows that the defendant actually used a firearm. Matter of Perez‑Contreras, 20 I&N Dec. 615 (BIA 1992).

Scope of Record 2

If a statute punishes use of a weapon, including a firearm, then it is a “divisible offense.” A noncitizen convicted under a “divisible statute” is not deportable for a firearm offense unless the record of conviction establishes that the offense committed involved firearms. See, e.g., Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996).

Scope of Record 3

This means:– If a noncitizen is convicted of assault

with a deadly weapon she or he is deportable if the record of conviction indicates that the weapon was a gun.

Tennessee Example

§ 39-13-102. Aggravated assault– (2) Recklessly commits an assault as

defined in § 39-13-101(a)(1), and: (A) Causes serious bodily injury to

another; or (B) Uses or displays a deadly weapon.

Tennessee Example 2

Does a violation of § 39-13-102 necessarily constitute:– A crime involving moral turpitude?– A firearm offense– A crime of violence

Tennessee Example 2

– a guilty plea to recklessly committing an assault while displaying a deadly weapon (knife) probably avoids moral turpitude (which requires recklessness+serious bodily injury)

– and is not a firearm offense – sentence of less than a year avoids crime

of violence

Unit 2: Attempts — Watch Out! Irrelevance of Label

The state label of an offense is not conclusive on whether the state conviction constitutes a “category U” aggravated felony (AF).

Example: Matter of Onyido, 22 I. & N. Dec. 552 (BIA 1999)(state conviction of submitting false insurance claim = attempted fraud or deceit AF, even though actual loss to victim did not exceed $10K).

Unit 2: Attempts — Irrelevance of Label 2

The Second and Seventh Circuits define attempts as the intent to commit a crime and taking a substantial step towards its completion.

Unit 2: Attempts — Irrelevance of Label 3

Sui v. INS, 250 F.3d 105 (2d Cir. 2001) (possession of counterfeit securities with intent to deceive is NOT AF as an attempted fraud or deceit offense because mere possession does not constitute a substantial step toward creating a loss to victims > $10K).

Unit 2: Attempts — Irrelevance of Label 4

Attempted Possession of Stolen Property: The BIA treats a conviction for attempted possession of stolen property as an attempted theft AF where the defendant receives a sentence of a year or more.

It treats the offense as an attempted receipt of stolen property conviction. Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000).

Exercise

Burglary of a vehicle is not a burglary offense.

Is burglary of a vehicle with intent to commit a theft an aggravated felony if defendant receives one year sentence?

If so, how?

Burglary of a Vehicle as Attempted Theft

According to the Seventh Circuit, a defendant who enters a vehicle with the intent to commit a theft has the intent to commit a crime and taken a substantial step towards its completion. United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001), cert. denied, 534 U.S. 1149 (2002).

Unit 2: Attempts — Taking Advantage of State Plea = “Legal Impossibility”

Gill v. INS, 420 F.3d 82 (2d Cir. 2005):Conviction for New York attempted felony

reckless assault is NOT a CIMT, even where the completed crime is a CIMT.

Under NY law, a defendant can be guilty of an attempted crime only if he specifically intends all elements of that crime. It is a “legal impossibility” to be guilty of attempting to commit a reckless crime.

Unit 2: Attempts — Taking Advantage of State Plea = “Legal Impossibility” 2

“Without in any way questioning the state’s ability to hold a defendant to his plea to an attempted reckless crime (which may have made practical sense in terms of reaching a contextually appropriate sentence or sentencing range)” . . .

Unit 2: Attempts — Taking Advantage of State Plea = “Legal Impossibility” 3

“. . . we find that, in the immigration context, no mental state can be clearly discerned from the conviction, let alone the sort of aggravated recklessness that has been found to demonstrate moral turpitude . . . .” Id.

Unit 2: Attempts — Taking Advantage of State Plea = “Legal Impossibility” 4

Knapik v. Ashcroft, 184 F.3d 84

(3d Cir. 2004):

A conviction for New York attempted reckless endangerment in the first degree is legally incoherent and therefore not a CIMT for immigration purposes

Food For Thought:

What is the definition of “attempt” in your jurisdiction?

Is a plea disposition to an attempted reckless crime ever possible in your jurisdiction?

More Food For Thought:

Gill and Knapik analyze whether an attempted reckless crime may be moral turpitude.

How might the “legal impossibility” theory also help avoid triggering a “crime of violence” aggravated felony?

Unit 3: Selected Relief — LPR Cancellation of Removal

Found at §240A(a), 8 USC 1229b(a)Lawfully admitted for permanent residence

for not less than 5 yearsResided in the U.S. continuously for 7 years

after having been admitted in any statusHas not been convicted of an aggravated

felonyMerits favorable exercise of discretion

Things to Remember Regarding Residence Requirements

Permanent residence must have been lawfully obtained. Matter of Kolontangi, 23 I&N Dec. 548 (BIA 2003); however, INA §237(a)(1)(H) waiver may cure underlying fraud.

Permanent residence begins to accrue upon admission to LPR; exceptions: Cuban Adjustment Act and refugess/asylees where LPR is back-dated

Things to Remember Regarding Residence Requirements 2

7 years of continuous residence do not have to be in continuous lawful status as long as initially admitted in any status. See Matter of Blancas-Lara, 23 I&N Dec. 458 (BIA 2002).

Continuous residence and continuous physical presence are not the same thing; limitations found in INA §240A(d)(2) do not apply to continuous residence requirement for LPR cancellation.

Things to Remember Regarding the Stop-Time Rule for LPR Cancellation

Stop-time rule of INA §240A(d)(1) does not apply to 5 years as LPR, only to 7 years of continuous residence.

Service of NTA governs, not issuance or filing.

Things to Remember Regarding the Stop-Time Rule for LPR Cancellation 2

First of two moral turpitude offenses does not stop time if, standing alone, it would fall under the petty offense exception to inadmissibility. Matter of Deanda-Romo, 23 I&N Dec. 597 (BIA 2003).

Unit 3: Selected Relief — Adjustment of Status

Immediate relative of U.S. citizen (e.g. citizen spouse); and

Not inadmissible under 8 USC § 1182(a)

Adjustment of Status and Inadmissibility

Inadmissible– Drugs– Moral turpitude

Waivers of Inadmissibility – For LPRs seeking adjustment?– For non-LPRs seeking adjustment?

Adjustment of Status and Aggravated Felonies

Although most convictions for an aggravated felony fit under a ground of inadmissibility, two exceptions are: Firearms trafficking offenses; and Harboring offenses pursuant to 8 U.S.C.

§ 1324(a)(1)(A)(iii)

DV Hypothetical