Results

Immigration law has its own definition of what constitutes a criminal conviction. The Board of Immigration Appeals (BIA) and other courts have held that certain types of pretrial diversion and intervention agreements that result in dismissal under state law can still constitute a conviction for immigration purposes. Practitioners must pay close attention to the structure of such agreements, and the variety of available diversion programs, when evaluating a client’s criminal history and advising about the potential immigration consequences of criminal offenses and dispositions. This advisory discusses when such diversion agreements and programs will constitute a conviction for immigration purposes, strategies to avoid triggering an immigration conviction, and tips for advocating for “immigration-safe” agreements.

In this practice advisory co-drafted with Public Counsel, we answer common questions on how to tackle disclosure of juvenile adjudications and dissemination of court records for individuals interested in applying for DACA. It also includes a sample DACA request packet, which shows various ways to disclose juvenile adjudications and comply with state confidentiality laws.

The majority of states have legalized some use of marijuana, but marijuana remains a federal Schedule I controlled substance. Therefore, any conduct involving marijuana can be very dangerous for immigrants – including conduct that is permitted under state law. Admitting that one has “legally” used marijuana, being employed in the fast-growing cannabis industry, and any conviction can cause serious immigration problems. A prior marijuana conviction must be vacated based on some error; the fact that the state has since legalized the conduct does not erase it, and many state “mass expungement” actions also do not. Evidence that a person has sold marijuana can harm any noncitizen, in some cases including immigrant youth. Marijuana issues can cause bars to eligibility for affirmative applications such as adjustment of status and naturalization; admission at the border; and cancellation and other applications in removal proceedings. 

This page provides several tools: an updated and a comprehensive Practice Advisory on the legal issues; a Practice Alert on the Policy Manualamendment; community flyers that you can download and use to help warn clients and community; and a sample written warning about working in the industry from the California Employment Development Department.

In Pereida v. Wilkinson, 141 S.Ct. 754 (March 4, 2021), the Supreme Court issued another opinion on the categorical approach, which is the analysis authorities use to decide whether a criminal conviction triggers removal grounds.  Pereida focuses on the “modified” categorical approach, which is how courts approach a conviction under a statute that sets out multiple, separate, offenses (a “divisible” statute). Pereida overruled Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc).

In the summer of 2020, the Department of Homeland Security (DHS) published two regulatory rules relating to eligibility for employment authorization documents (EADs) for individuals with pending asylum applications. Both rules went into effect in August 2020. This advisory provides a summary of the rules and the preliminary injunction currently in effect for members of Casa de Maryland (CASA) and Asylum Seeker Advocacy Project (ASAP). The end of this advisory contains a helpful chart for quick reference, outlining current eligibility requirements for an EAD based on a pending asylum application, and which provisions are temporarily enjoined by the case Casa de Maryland v. Wolf, No. 8:20-CV-02118-PX, 2020 WL 5500165 (D. Md. Sept. 11, 2020), for certain organizational members.

This practice advisory from the ILRC, NIPNLG, and IDP advises criminal defense attorneys on new immigration enforcement policies and how to use the new guidance to defend clients in criminal proceedings.

We previously circulated a sample brief,  Using and Defending PC 1473.7 Vacaturs. But, at times, DHS continues to object to 1473.7 vacaturs. Thanks to Pangea Removal Defense Attorney Luis Angel Reyes Savalza and Immigration Attorneys Merle Kahn and Daniel Shanfield for agreeing to sharing their his recent redacted responses to DHS opposition. This briefing includes a response as to why the 2019 amendments to 1473.7 do not, in fact, turn the statute into a rehabilitative mechanism.

This resource briefly reviews the February 18, 2021 interim ICE Memo issued by Acting Director Tae Johnson regarding how ICE will carry out DHS enforcement priorities. The new ICE guidance, effective immediately, will remain in effect until DHS Secretary Alejandro Mayorkas issues new DHS enforcement guidelines. This resource covers applicable enforcement actions, a review of the described enforcement priorities, and potential advocacy opportunities.

Certain criminal convictions are bars to eligibility for DACA.  However, if these convictions can be “expunged,” they will cease to be an absolute bar. Here, an “expungement” refers to any legal process where a criminal court can withdraw, erase, seal, or otherwise eliminate a conviction under a state statute, based on the fact that the person completed probation or other requirements, or for humanitarian reasons. Note that while DACA government materials call this an “expungement,” different state laws may use different terms for this kind of rehabilitative relief. An expungement is not given effect for most immigration purposes – but it does work for DACA.  For example, a misdemeanor conviction for driving under the influence is a bar to applying for DACA as a “significant misdemeanor.” If  the person has the conviction “expunged,” however, they are not barred from applying, and if they have enough positive equities they may well be granted DACA.

This one-pager goes over basic Know Your Rights information for immigrants incarcerated in California prisons.  It includes suggested contact information for families and community members in need of  immigration screening.

In October 2020, DHS and DOJ published a final regulation that sets out wide-ranging and draconian bars to applying for, and bases to terminate a grant of, asylum. For example, the bars include conviction of any felony, any controlled substance offense, a single DUI with injury, a DUI with a DUI prior (regardless of injury), and domestic violence bars based on the underlying conduct.

Cancellation of removal under INA § 240A(a) is an important defense for lawful permanent residents who have become removable, due to criminal record or other reasons. The requirements for statutory eligibility are complex, and it is critical for advocates to understand the risks and strategies that arise from the Supreme Court’s decision on the “stop-time” rule, Barton v. Barr, --U.S.--, 140 S.Ct. 1442 (2020). This Advisory is an updated step-by-step guide to eligibility, potential arguments, and defense strategies for LPR cancellation.

Noncitizens with certain criminal records are subject to mandatory immigration detention under INA § 236(c), 8 USC § 1226(c). This means that they may remain detained during the weeks, months, or years of their entire immigration case, without even the right to a bond hearing. Recent Supreme Court decisions in Jennings v. Rodriguez and Nielsen v. Preap have made the situation even worse, although litigation has produced some protections. This advisory outlines how to identify whether your client may be subject to mandatory detention, and what immigration advocates and criminal defense counsel can do to help their clients to avoid it.

In some cases, the amount of an imposed, potential, or served criminal sentence can determine the outcome of the immigration case. The law governing how state sentencing dispositions affect immigration penalties is fast-changing. The good news is that an informed defender often can structure a sentence that gives the prosecution what they require, while avoiding immigration penalties. An informed immigration advocate wants to be able to explain this to an immigration judge or adjudicator to win the case.

As many people consider exercising their right to protest, it’s important to note the unique harm certain convictions can cause for noncitizen protestors. Immigration consequences are highly specific and can typically only be determined by a thorough, case-by-case analysis. Nevertheless, this resource provides  key red flags and suggestions for California defenders representing noncitizen protestors.

Noncitizens participating in demonstrations or protests can risk arrest and can face certain convictions that could bar some forms of immigration relief or increase the risk of deportability. For this, and other reasons, noncitizen clients with protest-related charges are at a heightened risk of facing immigration consequences. Defense counsel can help protect immigrants from these consequences by negotiating dispositions to alternative charges that avoid or mitigate the immigration consequences.

A cite and release policy is a directive to law enforcement officers to issue citations, tickets, or warnings for certain low-level offenses, instead of making arrests. This resource provides a general overview of cite and release policies, including the goals and benefits of cite and release, the components of a strong policy, the eligible offenses under Texas state law, and examples of local policies across Texas. 

This one-pager, a partnership between the UCLA Criminal Defense Clinic, Al Otro Lado, and the ILRC, describes the how and why of CA Penal Code s. 1473.7.

In January 2020, the Committee for Review of the Penal Code began convening with the intent of putting forward wide ranging recommendations for reforms to the California criminal legal code. Understanding the significant impact of the process for California’s immigrant population, the ILRC has formally submitted recommendations, advice, and expert testimony as the committee engages in its deliberations. We will continue to update this site with our recommendations to the committee.

Across the country, states and localities are increasingly moving to end marijuana prohibition laws. For immigrant communities, despite the changing attitude toward marijuana-related conduct at the state level, an old conviction can still form the basis for immigration-related consequences at the federal level. Though federal legal reforms may be the only way to completely eradicate the immigration consequences of marijuana-related conduct and convictions, reforms at the state level can nevertheless help stop the arrest-to-deportation pipeline. Drawing from our experience with state and municipal efforts across the country, this resource, jointly produced by the Immigrant Legal Resource Center, the Immigrant Defense Project, and the Drug Policy Alliance, lists best practices for municipalities and states looking to decriminalize in a way that lessens the immigration-related harms of marijuana criminalization.

This brief advisory written by Rose Cahn, ILRC and Anoop Prasad, Asian Americans Advancing Justice Asian Law Caucus, discusses how petitions for relief using PC 1437, the reform to the felony murder rule, can be helpful to immigrants seeking to mitigate immigration consequences.

A one-page issue spotting decision tree to help screen for potential forms of post-conviction relief.  For an in-depth discussion of any of these vehicles, see this guide, created by the ILRC and Californians for Safety and Justice.

This resource provides helpful charts of the grounds of inadmissibility as applied to special immigrant juveniles (SIJs). It also describes the waiver standard and process for SIJs.

This toolkit is designed for legal service organizations who want to engage pro bono attorneys in providing immigrant post-conviction relief screening and services. It contains tools to run a legal clinic to screen for crim/imm issues and post-conviction relief options, tools to perform case-specific legal analysis for noncitizens with prior convictions, and tools to place and supervise post-conviction relief motions with pro bono attorneys. Although this toolkit was designed with pro bono engagement in mind, many tools may also be useful to organizations expanding their own immigrant post-conviction relief practice. 

This toolkit will help reentry service providers expand services for noncitizens impacted by the criminal legal system. It offers an escalating service menu, starting with tools to provide general information about how a conviction can impact immigration status, advancing to tools to help clients gather information necessary for an individualized legal analysis, tools to perform that analysis, and last, tools to pursue immigration-related post-conviction relief. This toolkit was designed with reentry providers in mind, but may also be useful for immigration legal providers serving clients with prior records.

On July 30, 2020, Attorney General Barr issued Matter of Reyes, 28 I&N Dec. 52 (A.G. 2020), a case involving a longtime lawful permanent resident with a single conviction for violating a larceny statute that criminalizes both theft and fraud, and is indivisible as between these means of commission. She had been sentenced to over one year in prison and there was an established loss amount of greater than $10,000. This practice alert provides a summary of the decision and potential practice tips for both immigration practitioners and criminal defense attorneys representing noncitizens in criminal and immigration cases. These tips focus on challenging the correctness of the AG's new theory of removability, challenging any judicial deference to the AG's opinion, fighting DHS efforts to file new NTAs or motions to reopen past proceedings, contesting retroactive application of the new decision, and criminal defense strategies for avoiding its reach in advising noncitizens on resolving open criminal matters.  

In October 2019, Attorney General Barr issued Matter of Thomas & Matter of Thompson, altering the standard for when immigration law will recognize a criminal sentencing modification. Since then, government attorneys from ICE and adjudicators from DHS and DOJ have misused and exploited the decision to incorrectly impose immigration consequences on vacated and modified past convictions and sentences. Immigrant rights advocates have pushed back by attacking this decision in the federal courts. In this amicus brief submitted to the Seventh Circuit Court of Appeals, immigration law experts directly challenge the AG's decision, arguing it is incorrect as a matter of law, is not entitled to any level of deference, and if permitted to stand cannot be applied retroactively. These arguments build on a growing body of case law refusing to offer deference to the DOJ on interpretation of immigration provisions that have both civil and criminal application. E.g., Valenzuela Gallardo v. Barr, --- F.3d ---, 2020 WL 4519085 (9th Cir. Aug. 6, 2020). Advocates challenging Thomas/Thompson in agency and court proceedings can use the arguments in this brief to attack the case on the merits and to resist its retroactive application.

Before pushing for change at the city level, it is important to understand your city government’s structure, as well as the responsibilities and powers of elected and appointed city officials, such as the Mayor, City Council, Police Chief, City Attorney and City Manager. This resource is for Texas advocates and explains the differences between the two major forms of city government in Texas, the powers of important city officials, and how various forms of city government affect the roles of those officials.

This Practice Advisory is a detailed follow-up to our prior Practice Alert on the Supreme Court's April 23, 2020 decision in Barton v. Barr, 140 S. Ct. 1442 (2020). In Barton, the Court held that committing an offense “listed in” the inadmissibility grounds at INA § 212(a)(2) triggers the "stop-time" rule for purposes of cancellation of removal eligibility, even for an admitted LPR who cannot be charged as removable under the inadmissibility grounds. This Advisory provides an in-depth discussion of the Barton decision, focusing on legal arguments to push back against overreaching DHS efforts seeking to trigger the stop-time rule, legal arguments and trial strategies to prevent conduct that did not result in conviction from triggering the stop-time rule, and considerations for criminal defense lawyers representing immigrants in criminal proceedings.