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The New Era of Crimmigration Requires a Fundamental Knowledge of How to Read a Conviction Through Immigration Law Lenses.

Criminal defense lawyers must have a working knowledge of immigration verbiage in order to effectively represent their clients in the modern practice of criminal law. In Padilla v. Kentucky, the Supreme Court held that counsel owes a duty to her non-citizen client to advise a non-citizen of the immigration consequences of a plea. The Court reasoned in a Majority Opinion that was written by Justice Stevens that:

Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsels who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does.

The era of crimmigration:

The High Court's decision in Padilla ushered in a new era of jurisprudence that is often referred to as "crimmigration." Convictions can cause a host of immigration problems for non-citizens. Certain crimes result in a non-citizen being found to be inadmissible to the United States, such as convictions for crimes involving moral turpitude, CIMT, and controlled substance offense, or deportable for having a conviction for a CIMT committed within 5 years after the date of admission and for which a sentence of one year or longer may be imposed, having been convicted of multiple CIMTs, having an aggravated felony conviction, high speed flight, and failure to register as a sex offender. Other convictions that will render a non-citizen deportable are controlled substance offenses, certain firearms offenses, and crimes of domestic violence, stalking, or a violation of a protection order and crimes against children.

Speaking a common language:

It would seem that most convictions will have an immigration consequence. However, the conviction alone is not necessarily the problem. There are related issues such as amount of loss in a fraud conviction that will determine whether the conviction is an aggravated felony, the amount of time to which a non-citizen defendant is sentenced in a crime of violence offense or theft offenses and whether it will trigger an aggravated felony charge, or whether the offense was part of a conspiracy. Because the Supreme Court and various State Courts now mandate that the immigration consequences of a plea be explained to a non-citizen defendant, a basic understanding of how to analyze a criminal conviction is essential in order for a criminal defense attorney and an immigration attorney to speak the same language. Terms or conditions may mean one thing for criminal law purposes but may mean something quite different under our immigration jurisprudence. For instance, a vacated plea or an expungement may mean that a conviction has been vacated under a State's criminal law but unless it has been vacated based on due process grounds; the original conviction is still considered a conviction for immigration purposes, despite the expungement or vacated conviction.

Analyzing a conviction:

The categorical approach:

To begin the analysis as to whether there are immigration consequences to a plea or conviction, the lawyer must start with the elements of the offense. For instance, in the aggravated felony context, the categorical approach does "not look to the facts of a particular prior case but instead whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony." A State offense is a categorical match with a generic federal offense only if a conviction of the State offense necessarily involved . . . facts equating to the generic federal offense." The elements of the criminal statute determine whether the offense fits within a certain category of crime for immigration purposes. The facts of the underlying conviction are not relevant. The lawyer must focus solely on the language of the statute.

The genesis of the categorical approach is born out of the Supreme Court's opinion in Taylor v. U.S., in which the Court had to determine whether a sentence enhancement was justified under the Armed Career Criminal Act that enhanced a sentence if the defendant had three prior convictions for violent felonies. The analysis was related to whether a prior burglary conviction was a violent felony and whether the burglary of a vehicle fit within the traditional meaning of a dwelling. The issue was whether the burglary of a conveyance was correctly categorized as a "burglary" offense that would justify the sentence enhancement based on the generic definition of the term "burglary." Traditionally, a "dwelling" meant the entry into a building or a structure with the intent to commit a crime therein. The Court reasoned that the burglary of a vehicle did not meet the generic definition of a dwelling as that term is used within the meaning of "burglary." Traditionally, a "conveyance" is not a structure. Accordingly, the burglary of a conveyance could not permit a sentence enhancement because it was not a burglary in the traditional sense as that term is used.

The modified categorical approach:

When analyzing a statue that has multiple subsections or disjunctive language, different offenses or unlawful conduct may be contained within the statute at issue. These are what are known as "divisible statutes" and may include convictions that may or may not have immigration consequences based on the subsection to which the non-citizen pled guilty. We most often see this in determining whether an offense is an aggravated felony or a CIMT. The categorical approach will not answer the inquiry in determining if there are any immigration consequences when there is a divisible statute. One must look beyond the elements of the statute and consult the criminal record of proceedings to determine to what conduct the non-citizen pled guilty. The record of conviction that may be reviewed while engaging in the modified categorical approach includes the criminal complaint or charging document, the indictment, a supporting deposition, a plea agreement, the plea and sentencing minutes and jury instructions.

In contrast to the categorical approach where the analysis does not permit looking beyond the elements of the offense, the modified categorical approach looks to the facts that resulted in the convicted conduct. In other words - what facts form the basis of the conviction? The Taylor v. U.S analysis is not employed because the statute in question includes conduct that may fall outside the generic definition of a crime. For instance in New York the crime of Assault in the third degree includes (1) intentional conduct to cause physical injury to another person; (2) reckless conduct that caused physical injury to another person; or (3) criminal negligent conduct that caused the "injury to another person by means of a deadly weapon or dangerous instrument." Often times a certificate of disposition will merely state that the non-citizen pled guilty to PL§120.00. The subdivision is not listed. There is no way to determine the immigration consequences of such a plea without reviewing the record of conviction. Intentional conduct to harm another person is a CIMT.

With respect to assault in New York State the Board of Immigration Appeals, BIA, held in Matter of Solon, that third-degree assault under New York law is a CIMT because the offense requires the intentional infliction of an injury that is "of a kind meaningfully greater than mere offensive touching." By contrast, the BIA held that simple battery that results in the unintentional infliction of serious injury is not a CIMT, absent other aggravating factors in Matter of Fualaau. The BIA held in Matter of Fualaau that recklessly causing bodily injury to another person in violation of Hawaii law is not a crime involving moral turpitude. Likewise, in Matter of Perez-Contreras, the BIA held that negligently causing bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering in violation of Washington law is not a CIMT. Thus, the question in the assault context is not what the result of the conduct was for a "serious bodily injury" but whether the aspect of the non-citizen's conduct rose to the level of culpability for the offense to such an extent that it may be considered a CIMT.

The "take away" in understanding the modified categorical approach is not to understand what caused the non-citizen to be charged with the offense in question or "what happened," but rather the goal is to determine whether the record of conviction points to which section of a divisible statute the non-citizen pled guilty. The underlying conduct does indeed lean on "what happened" but that is not determinative. What is determinative is to what conduct did the non-citizen plead. With respect to CIMTs, the adjudicator must look at the specific statute under which the non-citizen was convicted and ascertain the least culpable conduct necessary to sustain a conviction under the statute.

Conclusion:

It is not expected that this article will allow the criminal practitioner to "go at it alone" and determine whether a particular plea will cause immigration problems for her client. It is urged that a criminal practitioner always consult with an immigration specialist upon being retained in a criminal case. Upon understanding the basics of reading a criminal disposition, the criminal defense practitioner can effectively represent her client as she does not have to learn on the run when engaging immigration counsel. When criminal defense and immigration practitioners speak a common language, the non-citizen is effectively represented and that assures intelligent and knowledgeable pleas and finality to a prosecution. Justice is then served.

Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsels who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does.

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