Criminal and Immigration Law: Defending Immigrants’ Rights

The crossover between immigration and criminal law is one of the most complex and technical areas of law today. The ILRC is recognized as a national leader in this field, in analysis, teaching, and policy work.

As part of the national Defending Immigrants Partnership, the ILRC educates and assists indigent criminal defenders about immigration consequences of crimes. Directing the project in the Ninth Circuit, the ILRC provides resources, holds trainings, and mentors a group of representatives from indigent defense offices. To learn more about the Defending Immigrants Partnership, to see analyses of the law of several states, and to access a national resource library on the immigration consequences of crimes, go to www.defendingimmigrants.org. To access free on-line resources created by the ILRC, including the Quick Reference Chart and Notes for California Convictions or Arizona convictions, see below.

As a part of the national Immigrant Justice Network (IJN), the ILRC works to build an organized effort to eliminate unjust immigration penalties for immigrants entangled in the criminal justice system and to end the criminalization of our immigrant communities through legislative advocacy, public education, outreach, organizing, collaborating and media and messaging. To learn more about IJN go to www.immigrantjusticenetwork.org or contact ajunck@ilrc.org.

Publications

Since 1990 the ILRC has published California Criminal Law and Immigration, aka "the Bible," an in-depth analysis of Ninth Circuit and administrative law for immigration and criminal defense counsel representing non-citizens. This book has been expanded, reorganized and updated, and now is entitled Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Law. The new, two-volume edition of Defending Immigrants, updated through April 2008, is available now. To order it go to here.

Seminars

The ILRC presents seminars and webinars on a variety of topics involving immigration consequences of crimes, as well as enforcement of immigration law by state and local authorities. In addition, the ILRC, in cooperation with the Law Offices of Norton Tooby, presents full-day seminars on immigration consequences of crimes to immigration and criminal defense attorneys. Our annual seminars take place in Los Angeles and San Francisco. See seminars.

CONSULTATION SERVICES

The ILRC provides consultation services on the immigration consequences of criminal convictions, to assist criminal defense attorneys to better advise and defend their clients, and to assist immigration attorneys to argue that their clients are not removable or are eligible for relief. There is a lower fee for offices of the Public Defender. See consultations.

Documents

Chart: Immigration Effect of Selected California Firearm Offenses

For Criminal Defenders in the Ninth Circuit: Immigration Effect of Selected California Firearm Offenses, by Su Yon Yi & Katherine Brady, Immigrant Legal Resource Center.

application/pdf iconChart on Firearms

Chart: Eligibility for Waiver in Removal Proceedings under the Former INA § 212(c)

Eligibility for Waiver in Removal Proceedings under the Former INA § 212(c), Pursuant to Judulang v. Holder

application/pdf iconEligibility for Waiver in Removal Proceedings under the Former INA § 212(c)

Practice Advisory for Criminal Defenders: US v. Aguila-Montes de Oca Changes Rules Regarding Use of Record of Conviction

In United States v. Aguila-Montes de Oca the Ninth Circuit expanded the kinds of facts from a noncitizen defendant’s record of conviction that can be used against her in immigration proceedings. This Advisory  provides practical guidelines for criminal defenders on how to handle a noncitizen’s guilty plea in light of Aguila.

application/pdf iconPractice Advisory: US v. Aguila-Montes de Oca

Advisory: Ninth Circuit Panel Reverses Itself in Pagayon II

Testimony before an IJ may not be used to characterize an offense, or to link two documents from the record of conviction.  A Ninth Circuit panel has withdrawn a very bad opinion on the modified categorical approach and substituted a substantially better one.

application/pdf iconPagayon II Advisory

How to Plead a Non-Citizen Defendant to a California Burglary Charge

An "aggravated felony” conviction carries the most serious immigration consequences. If a sentence of a year or more is imposed, a burglary-type offense such as Calif. P.C. §§ 459/460 typically has the potential to be an aggravated felony under any of three categories: burglary, crime of violence, or attempted theft.

application/pdf iconHow to Plead a Non-Citizen Defendant to a California Burglary Charge

Immigration Consequences of a Plea to Calif. H&S § 11357(b) Now an Infraction

Practice Advisory: California Health and Safety Code § 11357(b) prohibits possession of not more than 28.5 grams of marijuana. After January 1, 2011 it will be treated as an infraction.

application/pdf iconCalif. H&S § 11357(b) Practice Advisory

Practice Advisory: Lujan & Nunez, July 14, 2011

Warning: Immigrant Defendants with a First Minor Drug Offense: “Rehabilitative relief” will no longer eliminate a first conviction for simple possession for immigration purposes, unless the conviction occurred before 7/14/11

application/pdf iconPractice Advisory: Lujan & Nunez, July 14, 2011

Update on INA § 212(h) Defense Strategies

"Many Permanent Residents Are Not Subject to the § 212(h) Permanent Resident Bar; The Eleventh Circuit Reaffirms § 212(h) as a Direct Waiver of Deportability; Using § 212(h) When LPR Cancellation is Not an Option" by Kathy Brady

application/pdf iconUpdate on INA § 212(h) Defense Strategies

The Categorical Approach in the 9th Circuit and US v. Aguila-Montes de Oca

On August 11, 2011 the Ninth Circuit published United States v. Aguila-Montes de Oca (“Aguila-Montes”), -- F.3d. --, 2011 U.S. App. LEXIS 16532 (9th Cir. 2011) (en banc). Aguila-Montes made two holdings, one of which is applicable to the categorical approach generally, and one of which addresses when California burglary meets the definition of “burglary” for aggravated felony purposes. This Advisory addresses the categorical approach; a separate Advisory at www.ilrc.org/crimes addresses burglary.

application/pdf iconCategorical Approach in the 9th Circuit and US v. Aguila-Montes de Oca

Conviction on Direct Appeal of Right Remains a “Conviction” for Immigration Purposes

Planes v. Holder (9th Cir. July 5, 2011): Criminal defenders must assume that filing a timely direct appeal of right will not prevent a conviction from having immigration effect. This is a change in the law, created by Planes v. Holder, supra. Advocates will file a petition for rehearing and there is a good chance that this will be granted, and a reasonable chance, although no guarantee, that Planes may be reversed.

application/pdf iconConviction on Direct Appeal of Right Remains a “Conviction” for Immigration Purposes

National Practice Advisory -- Understanding Immigration Detainers: An Overview for State Defense Counsel

This national practice advisory provides important background information and advocacy strategies on immigration detainers to help defense counsel effectively represent a noncitizen client who is or may be subject to an immigration detainer.

http://www.nationalimmigrationproject.org/legalresources/practice_adviso...

application/pdf iconUnderstanding Immigration Detainers: An Overview

Who Decides? Overview of Chevron, Brand X and Mead Principles

"A brief overview of principles governing deference to an agency may be useful to practitioners new to this area. In immigration law, the immigration judge and the BIA may resolve almost all issues presented in an immigration case, and DHS and the AG will address many issues in regulation or other policy rulings." By Kathy Brady.

application/pdf iconWho Decides? Overview of Chevron, Brand X and Mead Principles

Burden of Proof Victory in the Ninth Circuit

Government Bears the Burden of Producing Documents to Prove That a Conviction under a Divisible Statute Is a Bar to Relief such as Cancellation; The Ninth Circuit will not follow the Matter of Alamanza-Arenas Rule even in Applications for Relief filed after REAL ID

application/pdf iconBurden of Proof Victory in the Ninth Circuit

Immigration Criminal Law Resources for California Criminal Defenders

A description of critical resources available for California criminal defenders defending noncitizens:
application/pdf iconImmigration Criminal Law Resources for California Criminal Defenders

The Quick Reference Chart and Notes for Arizona Offenses

A guide to assist public defenders and other to determine the immigration consequences of selected Arizona offenses.

application/pdf iconThe Quick Reference Chart and Notes for Arizona Offenses

Defense Strategies for Applying for the former § 212(c) Relief in Light of Matter of Blake

by Katherine Brady and Joseph Justin Rollins This article provides strategies for asserting that aggravated felonies that are not related to controlled substances can be waived under the former § 212(c); available in Word.
application/msword iconDefense Strategies for Applying for the former § 212(c) Relief in Light of Matter of Blake

Practice advisory by Katherine Brady on the Supreme Court case Nijhawan v. Holder

Practice advisory by Katherine Brady on the Supreme Court case Nijhawan v. Holder, which deals with the categorical approach and aggravated felonies.
application/pdf iconPractice advisory by Katherine Brady on the Supreme Court case Nijhawan v. Holder

Ninth Circuit Amends Anaya-Ortiz v. Holder: Notations on a California Abstract of Judgment Cannot Be Used to Characterize the Offense of Conviction under the Modified Categorical Approach.

Practice Advisory and Amicus Brief: Ninth Circuit Amends Anaya-Ortiz v. Holder: Notations on a California Abstract of Judgment Cannot Be Used to Characterize the Offense of Conviction under the Modified Categorical Approach.
application/pdf iconAnaya-Ortiz v. Holder Practice Advisory
application/pdf iconAnaya-Ortiz v. Holder Amicus Brief
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