Mercy in the Legal Profession

Looking for Kindness and Compassion in our Profession

For the final days of 2015, I would like to share some thoughts with my colleagues about mercy.  Mercy is not necessarily a term you often hear associated with the legal profession, at least not as a mainstream descriptor.  But I am fortunate to have spent most of my legal career with colleagues whose work clearly incorporates the ideals of compassion and kindness, the very definition of mercy.

It is no coincidence that Pope Francis has declared the coming year to be a Jubilee Year of Mercy.  That is what brought me to think about it.  Of course, mercy is a virtue encouraged by all faiths, and is also found in the altruistic moral code of humanism.  So it is a universal virtue that seems like an appropriate subject for an end-of-the-year reflection.  And while this post is geared mainly towards my colleagues in the legal profession, defined widely and beyond the circle of attorneys (paralegals, assistants, investigators, interpreters, etc.), I hope people in other professions will find it worth reading and perhaps find ways to apply it more directly to their fields.

Mercy Through our Work

Our profession provides countless opportunities to show kindness and compassion.  Despite being the favorite target of jokes, lawyers have fought for the rights of others at great risk to their lives and livelihood throughout our nation’s history.  Lawyers have pushed this country ahead, despite daunting odds and often violent opposition, in the areas of civil rights, consumer health, worker safety, environmental preservation and personal freedom, just to name a few.  But perhaps it can be dangerous to always focus on those lofty achievements.  Not everyone can be an Atticus Finch, or a real-life Thurgood Marshal or Erin Brockovich (honorary J.D.!).  But every one of us can serve our profession and clients well in countless ways.  We can express the virtue of mercy in how we treat our clients, in our flexibility and our empathy for their situation, with being fair in our compensation.  We can also work with the countless nonprofit organizations and community agencies that work with the most vulnerable members of our community who are often most in need of strong advocacy and assistance.  Most bar associations encourage its members to offer some form of pro bono assistance, and I know plenty of colleagues that go well above and beyond that call.  So many attorneys work full time for nonprofit agencies, often in challenging and stressful environments, because of their commitment to helping others.  They include public defenders, immigrant advocates, domestic violence advocates, and many others who support the most vulnerable members of the community.  Those of us who don’t work full-time for those organizations can still provide valuable services by volunteering to take on pro bono cases or providing training and other support.  By doing that, we as attorneys can express kindness and compassion towards others, including members of our community and our profession.  For 2016, try to make a specific commitment to one of your community’s nonprofits.  Reach out to them and you may be surprised at how many opportunities exist.

Mercy Through our Advocacy

As lawyers, we have a unique opportunity to not only exercise kindness and compassion directly through our work and interaction with clients, but to advocate on behalf of our clients so that others show mercy as well.  Particularly for those who practice in areas such as immigration or criminal defense, we use our skills of advocacy constantly to give voice to many of our society’s most vulnerable members.  A judge will often have a wealth of information from prosecutors and probation officers that focus on a person’s weakest moment, and on actions that resulted in harm and loss to others.  Unfortunately, many officials who sit in positions of power and influence are far removed from the world in which our clients live and struggle and fail.  And those people who do hit bottom and break the law or find themselves having to answer for their faults often lack the ability to connect and explain what brought them to that moment; or how they truly are remorseful; or how what they did was an aberration- the exception and not the rule.  Attorneys and other advocates have an opportunity to step in and present the full panoply of that person’s life, and widen the lens through which the person is viewed.  The person violated an important rule of our community, but pan out and see that he is still a member of our community- with a family who he supports; with a child she raises by working 2 jobs; with a history of abuse; with a childhood where no opportunities were handed over; a lifetime of hard work and struggles which now fills the screen and puts a mistake, small or great, in some perspective.  By doing that, we allow that judge, adjudicator, social worker or other person of power to perhaps feel the need for some mercy.  We remind them that punishment without rehabilitation is counterproductive, and that a system of justice must show compassion to be worthy of the society it serves.  If we can bring out mercy in others, through our advocacy, then our work is itself one of mercy and worthy of the profession.

 

Reflect and Plan

As you think about these ideas of mercy, look both behind  and ahead.  Reflect on those moments when your actions were expressions of kindness, or touched others in a way that allowed compassion to flow through them.  Reflect and be glad for those moments.  But let’s also look ahead to the coming year, and develop concrete and specific ways that we will use our talents to continue exercising and encouraging the exercise of compassion and kindness.  In that way, we make our profession a noble one, and our own lives more worthy and fulfilling.

Executive Action on Immigration: What You Need to Know

   Last night, the President announced a series of executive actions on immigration that may effect upwards of 4 million people in our country.  They are a mix of deportation deferrals, enforcement priorities, border security and procedural reforms.  I would like to summarize the four main components that would be of most interest to my colleagues, clients and friends:

1) DACA (DEFERRED ACTION FOR CHILDHOOD ARRIVALS)

         This is the program created in 2012, focusing on undocumented people who came to the U.S. before the age of 16, and had continuously resided in the U.S. since 2007; the “Dreamers.”
What’s new:
•     Expands the program to include those who have resided in the U.S. since Jan. 1, 2010 (used to be since June 15, 2007);
•    No upper age limit (initially limited to people under the age of 31)
•    Beneficiaries receive deferred action on deportation and employment authorization for 3 years (used to be 2).
** Other requirements are the same, including entry before the age of 16, high school graduation and criminal bars.

2) DAPA (DEFERRED ACTION FOR PARENTS OF AMERICANS AND LEGAL PERMANENT RESIDENTS)

        This is a new program, expanding the DACA benefits to parents of U.S. citizens and of legal permanent residents who meet the following criteria:
•     Have continuous residence in the United States since January 1, 2010;
•     Are the parents of a U.S. citizen or lawful permanent resident born on or before November 20, 2014; and
•    Are not an enforcement priority for removal from the United States.

 

3) PROVISIONAL WAIVERS OF UNLAWFUL PRESENCE (I-601A WAIVER)

        This initiative is for undocumented individuals who have resided unlawfully in the United States for at least 180 days and who are the spouses, sons or daughters of U.S. citizens, or the spouses, sons or daughters of lawful permanent residents.  Even though the alien is still going to have to depart the U.S. to complete the visa process, this provisional waiver significantly reduces the amount of time the family will be separated.
What’s new:
•    Previously, only spouses and minor children of U.S. citizens were eligible for the provisional waiver.

 

4) EMPLOYMENT-BASED IMMIGRATION CHANGES

        The executive action includes some changes and updates to the employment-based visa process that are meant to modernize, improve and clarify immigrant and nonimmigrant programs in order to grow the economy and create jobs.

   
I THINK I QUALIFY... WHERE DO I SIGN?!?   
        These programs are NOT expected to be implemented for another 90-180 days.  Be cautious of anyone offering to fill out applications or “get you in line.”  Beware of scams, especially from notarios and others who prey on the immigrant community.

SO WHAT CAN I DO NOW?  ANYTHING?
        Yes!  There is something you can start doing now.  We know that applicants will need to have documentation proving things like when they arrived and how long they have been residing in the U.S.  So start gathering those documents now.  They could include things like rent receipts, utility bills, school records, medical records, taxes and pay stubs, just to name a few.  Also, there will be government fees for these applications, so you can start saving.  As an example, the current DACA application fee is $465.00.

GREAT, SO MY FEAR OF DEPORTATION IS FINALLY OVER, RIGHT?
        Unfortunately, these initiatives are a result of executive action, not legislation passed by Congress and signed into law.  President Obama has the authority to take these steps, but they do not provide a permanent solution.  These programs came into existence by the man in the White House, and they can be taken away with the stroke of a pen by the next President.  These programs don’t create a path to citizenship; they only offer temporary relief from deportation, and some other temporary benefits such as work authorization.  We need to keep fighting for permanent and comprehensive immigration reform!  So keep the pressure on Congress to do what the American people have been demanding for years.  It’s the right thing to do, and is in the best interests of us all!

        I wanted this post to be mainly informational, but it's also my blog so I'm entitled to color it with my personal feelings on immigration reform, which are as much about morality as they are about economics.  And I will conclude with the President's concluding words last night:

Are we a nation that tolerates the hypocrisy of a system where workers who pick our fruit and make our beds never have a chance to get right with the law? Or are we a nation that gives them a chance to make amends, take responsibility, and give their kids a better future?
Are we a nation that accepts the cruelty of ripping children from their parents’ arms? Or are we a nation that values families, and works together to keep them together? …

        That is what this debate is all about.

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How to View the Refugee Crisis: Compassion vs. Hate

Refugee Crisis and How We Respond:

      The recent surge in refugees coming to the United States from Central America, mostly children, has been a topic of much discussion and debate across the country.  An oversimplification of the issue has led to an oversimplification of how to respond, with two distinct "camps" emerging: one epitomized by protesters blocking the road in front of the federal DHS detention facility in Murrieta, California, and the other made up of groups like Border Angels rushing emergency supplies to various overcrowded centers mainly between Texas and California.  I would like to offer my views on the two camps; one group that gathers energy from the darker corners of the soul, and one that comes from a place of compassion.

First, Remember Why They Came

     There are many reasons people have come to this country over the centuries.  Sometimes it is the pull of what our nation has to offer, and sometimes it is the push of war or violence or famine in the home country.  Make no mistake about the current crisis:  it is not just a quantitative increase in the number of undocumented aliens coming to this country for work or for "a better life."  The unspeakable horrors of violence sweeping Central America recently, including widespread violence against women and children, is unlike anything that has been seen there in decades.  When the capital of Honduras is second only to Aleppo, Syria in the list of most murders, and when our own State Department declares that violence against women in Guatemala and across Central America has reached war-time levels, you can understand why people are fleeing, or sending their children abroad.  Would you do less for your child if she were statistically more likely to be sexually assaulted than find employment?  We can at least be aware of what conditions are behind the crisis as we formulate a response.  And we can remember that our own law compels us to listen to a refugee's plight before a decision is made as to whether to allow her to remain here or return.

Murrieta Protesters

     I don't want to give this group of perhaps a few dozen any more attention than they deserve, which is already disproportionate.  But for better or worse, they have become the face of the opposition to the recent influx of mostly Central American children and to their continued housing and care in the United States.  It's tempting to describe this group, or any group, from the outside looking in.  To refer to the Murietta protesters as ignorant, or organizers of hate rallies, certainly helps frame the issue and your position.  But when you do that, you fall prey to accusations of exaggeration or bias.  It's a rare case where a group's own words suffice to describe the group, what they believe, and why you find it objectionable.  Here is one of those rare cases.  From a legal and philosophical point of view, this group undermines itself and paints itself in as bad a light as any of the counter-protesters could ever do.
     To start with, the thousands of undocumented children who have recently surged across the border are not "illegal."  Why?  Because the acceptance of refugees and their right to petition for asylum or other relief is, quite literally, legal.  Does every single person qualify to remain in the United States?  Certainly not.  But those protesters who invoke the rule of law should perhaps brush up on exactly what the law is.  We as a nation acknowledge our obligation, legal and moral, to not return legitimate refugees to a country where they face persecution, sometimes death.  There is a process that needs to be followed, and that is what is taking place.  And that is the law.  So when a busload of detained aliens meets a crowd of citizens blocking a road and preventing federal agencies from carrying out their duties, only one of the two groups is breaking the law...and it's not the children on the bus.
     Moving on to what the Murietta protesters say, in words, placards and actions, little commentary is needed.  "Go back to Mexico" being screamed at a bus full of Central American mothers and children.  "No more taxes, no more illegals."  "You're not wanted!"  They scream and point at buses as the traumatized faces of 12-year-olds look out.  They rail against "invasion" of their town, despite the fairly ironic reality that the DHS facility provides jobs and revenue to their community, and I'm unaware of any detainees who have seen downtown Murietta unless there is a view from the facility itself.
     Do they have any legitimate reason to express concern over the influx of children from Central America?  Yes, they do.  We all do.  Even if we strip away concern for conditions in the home countries, there is certainly a valid concern for the effect on our U.S. resources, both in the short term (in terms of detention space, supplies, court resources, adjudicators of asylum claims, public health) and the long term (economic impact and other long-term resettlement-related strains).  But those are issues that are dealt with legislatively; through community-based organizing and coordination; by contacting representatives in Washington; and like it or not, by confronting the conditions back where the refugees come from.  Blocking traffic and screaming at buses does nothing.

Border Angels

     This group of advocates is fairly small, but similar to the Murietta Protesters' role on the other side, they have become the face of those who have reacted to the influx of Central American refugees in a very different manner.  Their immediate focus has been on collecting supplies, including diapers and toiletries and clothing, and getting them to the detention facilities that have been hit hard with numbers well beyond their housing capacity.  They ran supply drives including on July 4, disregarding the traditional day off and the call of the beach and barbeque to drive around town picking up boxes and delivering them to DHS facilities, trying to coordinate with government agencies that are not always open to that level of direct involvement with its detainees.  Beyond the specific organization known as Border Angels, this camp is also made of up a large number of community-based non-profits and advocacy groups, and many attorneys offering pro bono consultations and representation for children who have no ability to navigate the complex world of immigration courts and the complex array of federal regulations that will ultimately determine if they will stay in the United States or are returned to their home country.
   Are these advocates naive?  Perhaps.  Having worked with many, I think there is a good deal of naivete, accompanied by an unwillingness to listen to any opposing views or concerns.  That is, perhaps, their greatest weakness, because it provides their opposition with easy talking points and some legitimate claims of being the only realists in the room.  But from my point of view, a certain degree of naivete often makes the best advocates and activists.  Realism can, quite frankly, be a real bummer and a sure way to become disillusioned and overwhelmed.  It's like that story of the boy throwing starfish back into the water after they were washed up on shore; when a passerby pointed out that there were countless starfish on countless beaches and the boy would never make a difference, the boy just paused and then replied, "But I made a difference to that one."  We need more boys on the beach, and Mother Teresas in the streets, even if we never help every starfish or bring comfort to every destitute person dying in the street.  That sentiment probably says a bit about my own naive idealism, but I'm fine with that.

   I am sure that there are many people across the country whose views fall somewhere between the two camps described above; either because they don't fully understand the issue, don't care about the issue, or just find both to be extreme in their own way. But for now, these have become the faces of the two views on the current crisis.

Choosing Compassion

     Where my loyalties and sympathies lie is not a difficult choice for me.  When the choice is compassion vs. hatred, compassion will always win.  That is the side I will always choose, I hope, whatever the issue.  That is the side that is demanded by my own heritage, my upbringing, my profession and my faith. It is also the side favored by history.
    If you haven't decided where you fall yet, I hope compassion leads you to the right decision, for the right reason.

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Equal Justice in the Age of Justin Bieber

Never in my wildest dreams (nightmares) did I ever think that I would blog on the topic of Justin Bieber.  Please bear with me and realize I don't do this as a Belieber, which I am told is what his fans are called.  I do it as a way to perhaps make the topic of equal justice and immigration advocacy more interesting, maybe even reach out to an audience that wouldn't normally read about immigration-related issues, and to highlight exactly how UN-equal our system can be.  Perhaps I can even move beyond that and show how unequal and in need of review our own views of immigrants are, and why.

The Bieber Facts

Immigration Status
Bieber is not a United States citizen; he is not even a legal permanent resident.  He is a Canadian citizen, residing in the United States on an O visa.  That is a temporary, non-immigrant visa for aliens with "extraordinary abilities" in the sciences, education, business, or athletics, including some in the entertainment industry.

       Bieber released on bond    

 The Allegations
 DUI (alcohol and marijuana)
 Driving With an Expired License
 Drag Racing
 Resisting Arrest
 Destruction of Property (from previous week's shenanigans)

Consequences: deportation?
 In case I have any 12-year-old girl followers on my blog, you can stop crying.  Not to get too technical, but the charges he is facing all appear to be non-deportable misdemeanor offenses that would not rise to the level of "crimes involving moral turpitude" that would start to cause concern for Bieber's legal defense team.  Of course, depending on what he is eventually convicted of and other factors like public relations, future conduct and travel outside the U.S., DHS (which handles such immigration matters through agencies like ICE and CBP)  could still play hardball and either kick him out or prevent him from returning if he leaves.  In fact...oh, sorry.  I don't mean to upset anyone with my wild speculation.  Let's just say he's probably going to continue to be around to sing and dance and throw eggs at the mansions next door.

 The "Other" Type of Alien

Now let's strip away the celebrity coating and look at the facts of what Bieber did, applying them to other aliens, and see what we come up with.  Actually, I hardly think it's necessary for me to spend much time on this one.  Let's just say someone from another country, maybe Mexico, is living in the U.S.  Justino is mid-20s, only speaks his native language, works as a gardener.  OK, do you  have a picture of Justino in your head?  Admit it, you do.  Perhaps he makes the local papers (nothing national, of course) because he was also arrested.  Now this is important...keep that image of Justino in your head.  The article goes on to say he was arrested last night driving without a license, under the influence of both alcohol and marijuana.  He was with a group (gang?) of friends who were racing down a residential street, and these menacing hooligans even blocked off the street to prevent anyone from messing up their plans to tear up and down the block at twice the speed limit.  When police showed up, he cursed and yelled at them and resisted arrest.
What is the reaction at the local diner when someone points out that news story?  Would the expectation be that Justino got a low bond and walked out of court, or would such a suggestion be met with disbelief and outrage?

Why are these  "other" aliens treated so differently by the justice system?  Why are they seen as so different by us?  To be upfront, some of these individuals have a stronger claim to residing in the U.S. than others from an immigration point of view.  In other words, some are legal permanent residents (more than  Bieber), some have visas (like Bieber), and some reside in the U.S. without documentation.  Of course, very little having to do with this topic is neat or black and white; some of that last group, the undocumented, include Dreamers and others who were brought as children, and have now been given some authorization to defer their deportation and even work in the U.S. legally.  But such is the messiness of trying to classify people.

Equal Justice?

Typical reaction to a Mexican farmhand or gardener arrested for a DUI (even without any of the aggravating factors mentioned earlier):  "What did he expect, he's a guest in our country"; "He got what he deserves, he should go back to his own country"; "How can someone who is here as a guest in our country break the law and expect to stay here?"  That, by the way, is a SIGNIFICANTLY tame sample of responses I have heard personally, let alone the outright racist comments you can dig up within seconds online, without even having to go into the dark recesses of internet fringes.

Typical reaction to the Bieber story can be summarized as follows: "Oh my God, you mean they would deport him?"  Perhaps more commonly expressed as: "omg, can u b-leeve they can deport him for that?!? like, really?   :(  :*(  "

So what am I saying here.... Bieber should be deported like anyone else would?  No.  (I mean no, I'm not saying that.  I may believe it, but I'm not saying it...).  I am merely pointing out that this provides us with an opportunity to think about immigration issues, and to examine why some of us, or we as a nation, seem to have such inconsistent views depending on whether we're staring at a picture of a young, rich white kid from Canada with whom we connect (or wish we could), or a more faceless day laborer from the southern border.  What defines each of those two people?  What should we try to learn about all the facets of their lives, including background, heritage, education, marital status, children, community involvement, time living in the U.S., etc. before making a judgment?  Perhaps this is an example of why it's easy to be judgmental when we're dealing with people we don't know, or people we know only in the context of seeing them when we drive by a farm picking something, or cleaning up a table, or mowing our lawn.  Maybe all this noise about Bieber is not really a commentary about our obsession with A-list celebrities; it's about the harm of not bothering to know about people and, as a result, dismissing them or falling back on stereotypes.

 

Forget about Justice... What Does This Say About US?

Recently, Pope Francis posed the question: How can it be that it is not a news item when an elderly homeless person dies of exposure, but it is news when the stock market loses two points? A probing question for our times.  Carrying along the theme, I have to wonder: how can it be that it is acceptable that a young Mexican man brought to this country as a baby and now with a baby of his own can be so easily detained and cast back to a country he doesn't know, but a privileged Canadian entertainer driving under the influence of alcohol and marijuana gets a bond and waves to his fans as he leaves court?  Or perhaps more to the point, how is it that so many people nod with approval and judgment when families are torn apart with no consideration for the suffering of the person they know nothing about,  but beat their breasts and wail at the mere suggestion that someone with so many twitter-followers could possibly have to go back to the harsh environment of..Toronto? 

Why I Care About This Story

(It's not because I'm a Bieber Fan.  Really.  Please Believe Me.)

A benefit of blogging, as opposed to writing articles or even an Op-ed piece, is that I'm allowed to let my real thoughts creep in.  It's even expected, I think.  Those who know me well also know that I don't exactly wear my emotions on my sleeve, and my feelings do very little "creeping" anywhere.  But I'm going to end this by acknowledging that even if it didn't come through in this post, I am rather bitter.  It's mostly a vicarious bitterness, on behalf of my clients.  I hear about Bieber and his "antics" and can't help but think about "Juan", whose DUI was not considered an antic by ICE when they detained him, or by the Immigration Judge who was ready to deport him, even though Juan's offense did not involve marijuana, or cursing at police officers or resisting arrest.  I see this "kid" on tv walk out of court after paying a laughably low bond and jump on top of his SUV and wave to his fans as he is driven home and I can't help but think of Ana.  Ana fled physical and sexual abuse in Guatemala and traveled by herself at the age of 19 through Central America and Mexico to reach the border and plead for asylum in the U.S. and was promptly detained and put in an inhumane detention facility and told she had to remain detained for months because of the ludicrous claim that she was a "risk of flight".  I turn on CNN yesterday and see the powerteam of lawyers at a DUI arraignment in downtown Miami and can't help but think of my appearance two days ago in immigration court at a remote detention facility where I sat with my client among a sea of poor, unrepresented, often illiterate sometimes traumatized aliens who have no right to a lawyer, who on previous occasions have tried to whisper to me or use hand signals to get me to take notes they've scribbled on little pieces of paper with phone numbers or pleas for help.

So getting back to the question of whether I think they should deport Bieber... I really don't care what they do.  He's going to be fine one way or the other.  I can't say the same for so many other people I see, the people that others don't see, or don't want to see.



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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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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.

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: