Crimes

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.

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. 

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.

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.

Despite new state laws legalizing cannabis for recreational use, archaic U.S. drug laws still classify marijuana as federally illegal. Because immigration is governed by federal law, this means that noncitizens may face serious problems down the line if they are not aware of how their experiences with cannabis could impact their immigration journey. This video and accompanying infographic detail the specific risks associated with the use or possession of cannabis and/or industry employment.

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.