Tuesday, November 26, 2013

When Vague Was in Vogue: Crafting a Plea Agreement for Non-Citizen Defendants




When I do consultations with criminal defense attorneys in California, something that I've heard a lot lately is "Hey, haven't immigration attorneys been telling us for years that we should keep the conviction documents vague?  That's not the case anymore?!?"  (followed by a string of obscenities... defense attorneys tend to be potty mouths).  I'm sorry to have to pull out that most widely-used and dreaded term we attorneys use: "It depends."

Young v. Holder:  The game-changer on vague records of conviction

 

The traditional approach:  vague is good

For years, immigration attorneys asked defense attorneys to keep the "record of conviction" documents as vague as possible.  That is because in removal proceedings, it is the Department of Homeland Security (DHS) that has the burden of proof and the burden of production.  In addition, under a long line of Supreme Court and Circuit Court precedent, immigration judges are limited in what documents they can use to determine what an alien was convicted of.  So if the record of conviction documents are vague, DHS may not be able to meet its burden of proving by clear and convincing evidence that the alien was convicted of what they think he was convicted of.  For instance, if a conviction under a state's controlled substances statute could be for possession  of marijuana or other substances that are prohibited under state law but not federal law, DHS would have to obtain sufficient documents to prove that the alien was actually convicted of a federally-prohibited controlled substance (like marijuana).  If the court documents all just repeat "controlled substance," without specifying the substance, then DHS fails to meet its burden and the IJ would have to terminate proceedings.  Who knows what the person was in possession of?  It COULD have been marijuana...or it could have been something else that is not prohibited by federal law.

       This issue would also come up when a legal permanent resident in removal proceedings was asking for a waiver or pardon, such as Cancellation of Removal.  Of the various requirements for Cancellation, one is that the alien must not have been convicted of an aggravated felony.  So if a statute could sometimes be an aggravated felony and sometimes not, DHS would have to track down those records to show the IJ that it was actually the ag-fel part of the statute, thereby disqualifying ("pretermitting" in immigration-speak) the alien from getting Cancellation.  So vagueness in those court records would traditionally be a good thing for the client in all contexts.

Vagueness becomes a problem

And then along comes the Ninth Circuit in Young v. Holder, 697 F.3d 976 (9th Circ. 2012) and threw a monkey wrench in the works. In Young, the court held that when the alien is applying for Cancellation of Removal, it is the alien who has the burden of proving that he is eligible to get it.  Therefore, if the alien has a conviction that COULD be an aggravated felony, it is the alien who needs to prove that it was actually NOT the ag-fel-type of violation under that statute.  So now, if the record of conviction is vague, the alien has failed to meet HIS burden to prove he is eligible for the pardon, and he cannot receive Cancellation.

"OK, I'm a defense attorney...just tell me what I'm supposed to do!"

Sorry to do this to you:  it depends.  The complicated world of crimmigration just got a bit more complicated.  Sometimes a vague record of conviction is a good thing (it means DHS may not be able to even prove your client is deportable), and sometimes it's a bad thing (your client, who may be clearly deportable, may not be able to prove he is eligible for that Cancellation of Removal waiver).  So the relationship between criminal defense attorneys and immigration attorneys is like so many other relationships:  it's complicated.

The best thing to do is complete a thorough analysis of your client's immigration status, review it with your client, and together determine if the goal is to craft a plea deal that will prevent your client from being found removable, or one that will make him eligible to apply for relief such as Cancellation of Removal.  Yes, that's always a tough analysis, and it has only gotten tougher.  When in doubt consult with a qualified immigration attorney.

"I'm an immigration attorney stuck with a vague record of conviction... no hope for Cancellation?"

There's always hope!  Thanks to the recent Supreme Court cases of Moncrieffe v.Holder, 133 S. Ct. 1678 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013), the Young v. Holder decision is now in doubt (that's a complicated discussion worthy of a separate blog post).  The Ninth Circuit is considering whether Young v. Holder can survive those Supreme Court decisions, and we are all anxiously awaiting a decision in Almanza-Arenas v. Holder, No. 09-71415.  Therefore, if your client is unable to qualify for Cancellation of Removal because of the Young v. Holder case, don't concede the issue!  Argue that the Young case is no longer good law, preserve the issue for appeal, and await a good decision in the Almanza-Arenas case.

For attorneys that are not in the Ninth Circuit, the analysis depends on whether the circuit in which your client will face removal proceedings follows an analysis similar to Young v. Holder (4th and 10th Circuits), or if the burden is on the government to prove both removability AND ineligibility for Cancellation of Removal (8th Circuit).

For attorneys that are in the Ninth Circuit, especially defense attorneys who were finally comfortable with the whole "vague is good" mantra, you may wonder if you should be changing gears or not.  If the Ninth Circuit decides to overturn Young v Holder, we're back to the way things were.  Yes, that may be true; but immigration law is in quite the state of flux lately, on both the legislative and judicial fronts.  Predicting where things will go is harder than it ever was.  So maintain good lines of communication with your colleagues on the immigration side and stay flexible.  It's going to be a bumpy ride; but that's part of the excitement of our profession.  Now go wash your mouth out with soap.



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Law Office of Andrew Nietor
110 West C Street, Suite 2105
San Diego, CA 92101
(619) 794-2386

(619) 794-2263 (fax)
www.nietorlaw.com

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Sunday, November 10, 2013

Diversion Program: Conviction for Immigration Purposes?


A common question asked by defense attorneys is whether a deferred prosecution or pre-trial diversion would have any adverse immigration consequences for their non-citizen clients.  In other words, are these diversionary programs considered convictions?  The answer depends on the  type of diversionary program.  Some are considered convictions, while others are not.

THE LAW:

For immigration purposes, a conviction is defined in INA § 101(a)(48) (A) as a formal judgment of  guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-
(i) 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
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. 

TYPES OF PROGRAMS:

Diversionary  programs tend to fall into one of two categories:
1) Pre-trial diversion; or
2) Deferred adjudication.

It is important to analyze the details of the program, and not just rely on the name.  Different jurisdictions use different  titles, and a "deferred prosecution" in one court may be different than a deferred prosecution in another, yet the same as a "deferred adjudication" or "pre-trial diversion" in a third jurisdiction.  

WHAT TO LOOK FOR:

1) Admitting Facts to Warrant a Finding of Guilt:

In general, pre-trial diversion is the better program because it usually does not require the defendant to enter an admission to the elements.  For this reason, it would not be considered a conviction for immigration purposes.  Deferred prosecution agreements, on the other hand, tend to involve an admission of guilt by the defendant, with a deferral of the entry of judgment.  Such a deferred prosecution agreement would be considered a conviction because of the admission of guilt.

2) Punishment:

Regarding the required "form of punishment, penalty  or restraint on the alien's liberty", this has been interpreted quite broadly, and would include custody, home detention, or other limits on the alien's liberty.

IN SAN DIEGO FEDERAL COURT (A CASE EXAMPLE):

Recently, I have been asked to analyze offers from the U.S. Attorney's Office in the Southern District of California.  From what I have seen, the offers tend to be deferred adjudication agreements, wherein the defendant would enter a guilty plea before a magistrate judge, admitting the elements of the offense. There would not be an entry of judgment.  The defendant would then be placed on probation for a specific period of time.  Upon successful completion of probation, the parties would move the court to dismiss the case.

Unfortunately, this would be considered a conviction for immigration purposes.  Why?  Because the defendant is admitting the elements in court, and the judge is imposing some restraint on the defendant's liberty through the terms of probation.  While there may be benefits to this type of deal, attorneys should be aware that it would still have potential adverse immigration consequences and advise their clients accordingly.


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Law Office of Andrew Nietor
110 West C Street, Suite 2105
San Diego, CA 92101
(619) 794-2386

(619) 794-2263 (fax)
www.nietorlaw.com

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Information contained in this blog should not be taken as legal advice for any specific case, and is meant as a general guide for the topic addressed.  Legal advice -- the application of law to an individual's specific circumstances-- should be obtained from an attorney who has all the relevant facts related to the specific case.

Monday, July 1, 2013

Welcome to my blog!

Thanks for taking the time to read my blog posts.  I hope to be able to provide useful information to fellow attorneys and to the general public.

Most of the articles are for attorneys practicing in the areas of immigration and criminal defense.  Many attorneys focus on one or the other.  However, it is increasingly important for practitioners in both fields to have a fuller understanding of "crimmigration" issues, and the consequences facing their non-citizen clients with criminal issues.

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Law Office of Andrew K. Nietor
110 West C Street, Suite 2105
San Diego, CA 92101
(619) 794-2386

(619) 794-2263 (fax)
www.nietorlaw.com

Follow me at: