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

Expansion of the Former § 212(c) Relief

A permanent resident with convictions from before April 1, 1997 may be eligible for a powerful waiver under the former INA § 212(c) -- even if the offense was an aggravated felony.  Yielding to the U.S. Supreme Court opinion in Judulang, the BIA has dramatically increased the type of offenses that can be waived.  See Practice Advisory by the NIPNLG and IDP, entitled "Matter of Abdelghany: Implications for LPRs Seeking § 212(c) Relief"  at http://nationalimmigrationproject.org/legalresources/practice_advisories...

The California TRUST Act: A Guide for Criminal Defenders

On October 5, 2013, Governor Brown signed AB 4, the TRUST Act, which went into effect January 1, 2014.  It will be codified as Gov. Code §§ 7282, 7282.5.  The TRUST Act prevents local law enforcement from detaining noncitizens pursuant to an immigration “hold” or detainer beyond the time that they otherwise could be released from criminal custody.  This Guide discusses how the TRUST Act works and defense strategies in light of the Act.

Immigration Relief Toolkit for Criminal Defenders

Many noncitizen defendants are already deportable (“removable”). This includes all undocumented people, as well as lawful permanent residents (green card-holders) who have become deportable because of a conviction. If immigration authorities find these people – which is likely to happen – they will be deported unless they are granted some kind of immigration relief.   For these defendants, staying eligible to apply for immigration relief is their most important immigration goal, and may be their highest priority in the criminal defense.

The purpose of the Relief Toolkit is to help defenders or paralegals to spot a defendant’s possible immigration relief relatively quickly. If you determine that your client might be eligible for specific relief, this will help inform your criminal defense goals, and you can tell your client that it is especially important for him or her to get immigration counsel.  The Relief Toolkit contains:

  • Questionnaire to spot possible relief  (10 minutes to complete)
  • Two-page information sheets on each specific application, e.g., asylum, naturalization, family immigration, whether the client already might be a citizen
  • Annotated chart listing different forms of relief and their criminal record bars

This Toolkit is an expanded and updated version of our earlier Toolkit, which had focused on just a few forms of relief.   This Toolkit also appears as §N.17 in the California Quick Reference Chart and Notes at www.ilrc.org/crimes.   It was written by Kathy Brady at ILRC.

Transportation under H&S §§ 11352 and 11379 will no longer be an immigration safe plea beginning 1/1/2014

Starting January 1, 2014, a conviction for transportation under H&S 11352 and 11379 will automatically qualify as a drug trafficking aggravated felony.  AB 721, signed into law on October 3, 2013, redefines transport to include only transportation for sale and now excludes transportation for personal use. 

Moncrieffe and Olivas-Motta: Fourteen Crim/Imm Defenses in the Ninth Circuit

In Moncrieffe v. Holder, the U.S. Supreme Court reaffirmed that the full categorical approach applies in immigration proceedings. A result is that where the criminal statute defines the offense more broadly than the immigration definition at issue, the conviction will not trigger the immigration penalty.

For further information, see www.nipnlg.org/legalresources/practice_advisories/cd_pa_Descamps_Practice_Advisory_7-17-2013.pdf.

Almanza-Arenas Briefs Arguing that Moncrieffe overrules Young

In Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc) the Ninth Circuit held that the REAL ID Act requires that where the modified categorical approach can be employed, an applicant for relief must prove under that approach that a conviction is not a bar to eligibility for relief.  The applicant may use only evidence from the reviewable record of conviction to do this.  The Ninth Circuit in Almanza-Arenas v. Holder ordered the parties to submit supplemental briefing on the issue of whether the Supreme Court decision in Moncrieffe v. Holder overruled Young on the burden of proof issue.

Thanks to Michael Codner, who wrote the supplemental brief in consultation with the Stanford Immigrant Rights Clinic and Immigrant Defense Project and also to the Stanford Immigration Rights Clinic for submitting amicus on behalf of Immigrant Defense Project, the ILRC, the National Immigration Project and  Federal Defenders of San Diego.

Victory in the Ninth Circuit: Matter of Silva-Trevino Overruled

This quick advisory provides the headline from an important Ninth Circuit case published today. The case concerns Matter of Silva-Trevino and the evidence that may be consulted to determine if the conviction was for a crime involving moral turpitude.

Post-Conviction Relief in California Should Be Unaffected by Chaidez v. United States

In Chaidez v. United States, 568 U.S. _____, ____S.Ct.____, 2013 WL 610201, (February 20, 2013) the U.S. Supreme Court held that Padilla v. Kentucky, 559 U.S. 356 (2010) was a “new rule” that did not apply retroactively to convictions final before March 31, 2001. In Padilla, the Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen about the immigration consequences of a guilty plea.

Practice Advisory: Waiting for Descamps

How the Supreme Court Might Save Your Crim/Imm Case: The U.S. Supreme Court will issue a decision in the spring 2013 term in a criminal case, Descamps v. United States, that may have very beneficial implications for immigration cases.

Arguing that a California Infraction is Not a Conviction; Test for Non-Misdemeanor Offenses

Practice Advisory: The BIA held that a violation of a Kansas municipal ordinance is a conviction for immigration purposes despite the lack of appointed defense counsel or right to a jury trial in those proceedings. Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012).

The Quick Reference Chart and Notes for Arizona Offenses

Updated October 2012! A guide to assist public defenders and other to determine the immigration consequences of selected Arizona offenses.

Ninth Circuit Decides Key Issues about Categorical Approach; Overturns Sandoval-Lua

The Ninth Circuit En Banc Decides Key Issues About the Categorical Approach; overturns Sandoval-Lua: Young v. Holder __F.3d__ (9th Cir. Sept. 17, 2012) (en banc). This quick Advisory provides the headlines from an important Ninth Circuit case published today. Further advisories may provide a more in-depth analysis.

LPR Bars to § 212(h) – To Whom Do They Apply?

Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012). Section 212(h) of the INA1 is an important waiver of crimes-based grounds of
inadmissibility.

Understanding the Criminal Bars to the Deferred Action Policy

In addition to a number of other requirements, to qualify for deferred action a person must not be convicted of a felony, a significant misdemeanor, or multiple misdemeanors, and not pose a threat to public safety or national security.

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

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.

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.

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.

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

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

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.

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...

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.

Immigration Criminal Law Resources for California Criminal Defenders

A description of critical resources available for California criminal defenders defending noncitizens:

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.