Resources
Publication Date
03/01/2023
Cannabis legalization has long been a growing theme across the United States, having a place in virtually every recent election cycle and in policy debates related to the federal government’s role in restricting its access, sale, use, and distribution. With many states moving to legalize cannabis for recreational use and with the Biden administration recently deciding to pardon individuals for certain federal convictions related to its possession, it may seem as though we are coming to the end of the cannabis prohibition era. Unfortunately, not only is that moment yet to arrive, but the dangers for immigrants, in particular, could not be higher. This downloadable guide walks through the current intersection of cannabis, criminal, and immigration law and also shares insights about what a pathway out of prohibition could look like.
Resources
Publication Date
03/01/2023
In August 2021, U.S. Immigration and Customs Enforcement (ICE) announced a new “victim-centered approach” for immigration enforcement. This FAQ outlines what this means, what the directive is expected to do, and who qualifies for this new enforcement approach.
Resources
Publication Date
03/20/2023
Immigration and crimes, or “crim-imm,” can be challenging. Both immigration and criminal law are difficult on their own. To do crim-imm work, advocates who are expert in one area must learn at least something about law and procedure in the other. It can be hard to know where to start the analysis.
This advisory provides a step-by-step approach to help advocates analyze a case and identify goals. It can be used by criminal defense counsel, immigration advocates, and post-conviction relief counsel. It is not a substitute for consulting with a crim/imm expert, but using it should increase your expertise and help you to better discuss the analysis with the client, argue it to the judge or official, or negotiate with the other side.
This advisory provides a step-by-step approach to help advocates analyze a case and identify goals. It can be used by criminal defense counsel, immigration advocates, and post-conviction relief counsel. It is not a substitute for consulting with a crim/imm expert, but using it should increase your expertise and help you to better discuss the analysis with the client, argue it to the judge or official, or negotiate with the other side.
Resources
Publication Date
04/07/2023
This practice advisory provides an overview of the different ways crimes can impact eligibility for Temporary Protected Status (TPS) and a framework for analyzing whether an applicant is subject to these bars and potential options to overcome them.
Resources
Publication Date
05/03/2023
An immigrant legal defense fund pays legal service providers to represent community members facing deportation in immigration court. This resource provides a general overview of immigrant legal defense funds (ILDFs) at the municipal level in Texas, including why they are needed, the goals and components of a strong ILDF, and examples of these funds from across the state.
Resources
Publication Date
08/23/2023
Immigration law demonizes people whom it labels as “drug abusers and addicts,” “habitual drunkards,” and “alcoholics.” The implication is that they are morally weak, dangerous, or evil. An immigrant who comes within such a category can be found inadmissible and ineligible to establish good moral character, and can be denied several forms of immigration relief as well as naturalization. But from a scientific perspective, these people suffer from a substance use disorder (SUD), a medical condition that frequently arises after the person has undergone severe trauma. Substance Use Disorder is a growing health crisis that currently affects over 20 million people in the United States.
This Advisory is written by immigration attorneys and medical doctors specializing in SUD, to examine the issue from both perspectives. Part I of the advisory discusses the several immigration law penalties based on substance use (even when use has not risen to a disorder) and suggests legal defense strategies. Part II of the advisory reviews current medical information about the disorders and discusses how this information can address questions that arise in immigration proceedings.
This Advisory is written by immigration attorneys and medical doctors specializing in SUD, to examine the issue from both perspectives. Part I of the advisory discusses the several immigration law penalties based on substance use (even when use has not risen to a disorder) and suggests legal defense strategies. Part II of the advisory reviews current medical information about the disorders and discusses how this information can address questions that arise in immigration proceedings.
Resources
Publication Date
06/27/2023
Resources
Publication Date
07/06/2023
This practice advisory provides an overview of the grounds of inadmissibility for Temporary Protected Status (TPS) explaining which grounds do not apply to TPS applicants, which grounds are non-waivable, and which grounds are waivable. It also offers an overview of the TPS waiver of inadmissibility.
Resources
Publication Date
07/17/2023
Conviction of “obstruction of justice” is an aggravated felony if a sentence of a year or more is imposed. In Pugin v. Garland, No. 22-23 (June 22, 2023), the Supreme Court overturned the Ninth Circuit’s definition of obstruction, but failed to provide a clear definition of its own. Now some California offenses are likely aggravated felonies if there is a sentence of year or more, including Penal Code §§ 32, 69, 136.1, 148, Vehicle Code § 10851, and others.
This Advisory discusses California offenses under Pugin, and discusses California criminal sentencing dispositions that avoid a sentence of a year or more for immigration purposes.
This Advisory discusses California offenses under Pugin, and discusses California criminal sentencing dispositions that avoid a sentence of a year or more for immigration purposes.
Resources
Publication Date
08/14/2023
There is a new law in California that went into effect in 2023 called the California Clean Slate Act (SB 731). Under the Clean Slate Act, authorities will automatically expunge – or dismiss – certain arrests and criminal convictions. While expungement provides relief in the California state criminal legal system, it does not provide the same relief in the immigration context. This explainer walks through some key points about this new law and its implication for immigrants with prior contact with law enforcement.
Resources
Publication Date
09/14/2023
This advisory provides basic information on how to obtain the SIJS predicate order in juvenile court. It describes the benefits, requirements, and deadlines associated with SIJS, and discusses the role of the juvenile defense or children’s attorney in the process. It includes a sample SIJS predicate order from juvenile justice proceedings.
Resources
Publication Date
10/05/2023
Publication
California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes guides advocates through how to use criminal courts to erase or mitigate the immigration consequences of convictions. This accessible resource provides beginner practitioners with a clear introduction to post-conviction relief and provides experienced advocates with techniques and strategies to improve their practice using new legal tools.
This manual includes everything that a practitioner needs to know about California post-conviction relief, including how to identify when an individual may benefit from post-conviction relief, how to obtain copies of court records, choosing a vacatur vehicle, negotiating with opposing counsel, demonstrating equities, successfully litigating your case, and defending your victory in immigration court. This guide highlights the new and evolving landscape of post-conviction relief in California, discussing recent legislative reforms and how to use them to erase and mitigate the immigration consequences of crimes.
The appendix contains practical tools for every provider including post-conviction relief screening questionnaires and model motions, orders, declarations, and much more. Though this manual focuses on post-conviction relief vehicles available in California, the strategies and suggestions are applicable to post-conviction relief practices across the country.
This manual includes everything that a practitioner needs to know about California post-conviction relief, including how to identify when an individual may benefit from post-conviction relief, how to obtain copies of court records, choosing a vacatur vehicle, negotiating with opposing counsel, demonstrating equities, successfully litigating your case, and defending your victory in immigration court. This guide highlights the new and evolving landscape of post-conviction relief in California, discussing recent legislative reforms and how to use them to erase and mitigate the immigration consequences of crimes.
The appendix contains practical tools for every provider including post-conviction relief screening questionnaires and model motions, orders, declarations, and much more. Though this manual focuses on post-conviction relief vehicles available in California, the strategies and suggestions are applicable to post-conviction relief practices across the country.
Webinar
Currently, thirty-eight states permit medical use of marijuana; twenty-three of these states fully permit recreational use; and the District of Columbia permits both uses. Still, marijuana remains on federal drug schedules and is treated for immigration purposes like any controlled substance. A conviction or just an admission of conduct relating to marijuana, or even lawful employment in the growing cannabis industry, can bring terrible immigration consequences.
This interactive national webinar will cover how state-legalized marijuana is helpful to immigrants, how it can be legally harmful, and strategies for how to advise and defend noncitizens in order to prevent legal damage.
This interactive national webinar will cover how state-legalized marijuana is helpful to immigrants, how it can be legally harmful, and strategies for how to advise and defend noncitizens in order to prevent legal damage.
Webinar
Since the federal government has failed to provide immigration reform, often times the only way to prevail in immigration court is to vacate your client’s prior criminal conviction or sentence to avoid deportation or to render your client eligible for some type of relief from removal. In this webinar, you will learn how to effectively vacate convictions in criminal court to meet the required Pickering standard of “legal invalidity”. We will take a deep dive into what constitutes “prejudicial error” pursuant to recent case law. In addition, we will discuss how to use the new resentencing laws and vacaturs enacted for victims of human trafficking and domestic violence to also help our noncitizens. Lastly, you will learn best practices to defend your vacatur in immigration court.
Resources
Publication Date
12/12/2023
This advisory analyzes and explains the particularly serious crime bar to asylum and withholding of removal. It describes the factors to consider in determining whether a crime is a "particularly serious crime" and how to challenge a particularly serious crime determination.
Resources
Publication Date
01/09/2024
Criminal Convictions can have serious consequences on peoples’ lives – especially non-citizens who wish to stay in the United States. Many immigration benefits have criminal bars, meaning that certain convictions will prevent you from getting a lawful immigration status, like permanent residence (green card). This Community Explainer offers some options for those who have had certain convictions related to domestic violence or human trafficking, with insights about how to define these crimes, some example scenarios, and explanations about the benefits of a legal tool called a “vacatur.”
Resources
Publication Date
05/22/2024
Thousands of noncitizens in California are at risk of removal because they have criminal convictions that were unlawfully imposed. California law provides several ways to eliminate these convictions with post-conviction relief (PCR). The challenge is that there are not enough PCR experts to meet the need, especially for low-income immigrants.
Resources
Publication Date
07/24/2024
On July 23, 2024, the ILRC provide comment on the Biden Administration’s proposed re-scheduling of marijuana. The ILRC advocated for the complete de-scheduling of marijuana instead of rescheduling. The comment highlighted the racist impacts of maintaining marijuana on the schedule of controlled substances and the lack of any mitigating effect that rescheduling will have on immigration consequences of marijuana-related crimes
Resources
Publication Date
08/21/2024
Prop 47 (2014) reclassified six felony offenses to misdemeanors, including shoplifting and simple drug possession, and funneled costs savings into safety measures like drug and mental health treatment and victim services centers. Proposed Prop 36 (November 2024) would roll back those reforms and add new criminal penalties and sentencing enhancements. Prop 36 will also impose severe immigration consequences on immigrants and their families. It will result in more Californians being deported and more families being separated. This resource provides some of the specific examples of the ways in which Proposition 36 will harm immigrants if passed.
Resources
Publication Date
09/03/2024
Since November 9, 2016, the definition of cannabis under California law is different and broader than the federal definition. Therefore, a California conviction for cannabis from on or after that date is arguably not a controlled substance conviction under federal immigration law. No court has yet made a finding on this issue for California offenses, but they have done so in other states with similar cannabis definitions. This template brief can be used to file a Motion to Terminate Proceedings or to file an Opposition to a Motion to Pretermit Proceedings (where the client is applying for adjustment of status or for cancellation of removal) to argue that any California cannabis conviction entered on or after November 9, 2016, is not a federal controlled substance offense.
Resources
EOIR Regulation Limits Retroactivity of Matter of Thomas & Thompson Regarding Sentence Modifications
Publication Date
11/06/2024
On October 25, 2019, the Attorney General published Matter of Thomas & Thompson holding that adjudicators could only recognize a sentence modification for immigration purposes where the sentence was vacated due to procedural or substantive defect as defined in Matter of Pickering. It was not clear whether this holding was retroactive. Under new DOJ regulations it is now clear that Matter of Thomas & Thompson is not retroactive. Adjudicators will recognize a sentence modification as vacating the sentence for immigration purposes where: (1) the person filed for the sentence modification on or before October 25, 2019; (2) the person relied on the availability to seek a sentence modification where the conviction date was on or before October 25, 2019; (3) there was a clerical or typographical error in the sentence regardless of the date of entry of the sentence; or (4) where the sentence was vacated due to a procedural or substantive defect in the sentencing - regardless of when the sentence modification was filed.
Resources
Publication Date
03/20/2025
The Laken Riley Act (LRA) was signed into law by President Trump on January 29, 2025. It amends the Immigration and Nationality Act (INA) by expanding mandatory detention of certain inadmissible noncitizens who are merely arrested or charged with certain offenses. This practice advisory addresses the question of whether the provisions of the LRA that seek to vastly increase the number of people subject to mandatory immigration detention would be triggered by children engaging in acts of juvenile delinquency. In the advisory, we argue that the answer is no, in alignment with longstanding precedent in immigration law that treats acts of juvenile delinquency as distinct from adult criminal acts. However, given that this is a new law with unclear drafting, we also provide tips for juvenile defense attorneys to help clients avoid charges that could implicate the mandatory detention provision of the LRA.
Resources
Publication Date
11/19/2010
A description of critical resources available for California criminal defenders defending noncitizens:
Resources
Publication Date
10/04/2012
Updated October 2012! A guide to assist public defenders and other to determine the immigration consequences of selected Arizona offenses.
Resources
Publication Date
11/19/2010
Practice advisory by Katherine Brady on the Supreme Court case Nijhawan v. Holder, which deals with the categorical approach and aggravated felonies.
Resources
Publication Date
02/28/2011
Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), overruling in part Matter of Shanu, 23 I&N Dec. 754 (BIA 2005).
Resources
Publication Date
03/17/2011
"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
Resources
Publication Date
03/22/2011
Resources
Publication Date
05/02/2011
"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.