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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