Category Archives: Immigration

Sometimes They Make You Work For It

I was feeling very confident: the two police officers the prosecutor put on admitted that they had no reasonable articulable suspicion of any crime, let alone probable cause, to justify keeping my client in handcuffs on the side of the road for a half hour before checking to see whether he had any outstanding warrants. The judge would just have to find that illegal (and suppress the evidence allegedly found after the arrest when a warrant was found). And it didn’t faze me that the judge asked for additional post-hearing briefing. The law was on my side, the facts were on my side, the prosecutor couldn’t do anything. He didn’t have to. At the next hearing the judge held that the half-hour in handcuffs did not unnecessarily prolong the initially lawful stop.

Every trial criminal defense lawyer knows this feeling, as eloquently described by Scott Greenfield: “we stand there helpless as judges mangle words, if not concepts, waving them off with an imperial flip of the hand as if the hundred years of caselaw never happened.” And sometimes judges who know the exact words of the standards by heart will proclaim that the standard does or doesn’t apply, contrary to all precedent.

But then there are times when the judge will reconsider as we jump back in and show the judge why they should, must rule for our client. And other times when the judge’s apparent “no” or “that can’t be right” is a request to dig deeper, to explain further, to show why this is the right result. Nothing ever bad happened to a lawyer who respectfully asked to be heard. And then sometimes we win. So we hope. And we fight, but not in anger. And even if we lose one battle, the war is not necessarily over.

 

To the Permanent Resident Pleading Guilty to Drug Offense and Counting on Cancellation of Removal: Don’t

I was consulted on a case the other day where a person had pleaded guilty to misdemeanor possession (of something that’s not marijuana) over his lawyer’s warnings that it make him removable. The judge also (post-Padilla) made sure that the person knew that there could be immigration consequences. But all the person could hear was that the prosecutor would be asking for probation if he accepted the plea deal (which was also the likely sentence even after trial).

So you can guess what happened. After an ill-advised trip abroad, the person received a Notice to Appear in immigration court. As a legal permanent resident with medical issues, he was eligible for cancellation of removal (which he ended up getting, with a sympathetic judge). But it could easily have gone the other way. Cancellation is a discretionary remedy, which means that the judge could have denied it if he had a good reason to do so. Continue reading

DC Post-and-Forfeit Is Not A Conviction For Immigration Purposes

A colleague recently asked me whether the DC post-and-forfeit procedure after arrest is properly considered a conviction under federal and immigration law. The simple answer is that the post-and-forfeit procedure does not equate to a conviction. Continue reading

The Need For Discretion

Recently, in browsing a well-known local lawyer’s website, I found the following “News” article on their blog:

Attorney X convinced a [local] prosecutor to dismiss Armed Robbery charges, all felonies, and all gun charges, despite the defendant being caught nearly red-handed with a shotgun in his fleeing vehicle.

The defendant plead to Second Degree Assault, a misdemeanor, giving him a strong chance to avoid certain deportation that he would have faced with any felony or gun charge. He will be eligible for parole in one month.

While there may be some ethical concern over publicizing past successes without adequately informing potential clients that there is no guarantee of such success in any particular case, that is not my main concern. The biggest problem with this self-serving news article is that it may harm the client in the future. Continue reading

If a Misdemeanor Could Lead to Removal of a Non-Citizen, the Charge *Might Be* Jury-Demandable In DC

Recent changes in how courts view the consequences of criminal convictions for non-citizens make it imperative that criminal defense counsel not only counsel clients on the potential immigration consequences of pleading guilty, but also demand a jury trial if a conviction could lead to removal for the client. Continue reading

Nothing Good Comes of Failing to Show For A Court Date

Things happen. I know that sometimes, cars break down, urgent doctors’ appointments need to be made, things just slip peoples’ minds. But the consequences of failing to show for your criminal hearing can be dire. (The same holds true in immigration hearings, but with even greater consequences.)  Not only will the judge issue a bench warrant for your arrest, which always happens at the most inconvenient times, but you could face additional charges for failing to appear. Continue reading

Fourth Circuit Also Rejects Silva-Trevino Framework For Crimes Involving Moral Turpitude

Former Attorney General Mukasey’s last minute fuck you to the immigrant community is looking like it might be against the ropes.  As discussed in a previous post, in Silva-Trevino, ex-Attorney General Mukasey attempted to drastically revise nearly a century of jurisprudence governing the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT).

Today, the 4th Circuit becomes the fourth circuit court to reject Silva-Trevino. In Prudencio v. Holder, the 4th Circuit  held that ex-AG Mukasey’s decision was not entitled to Chevron deference because there was no ambiguity in the statute, that indeed, any ambiguity was of Mukasey’s own making. The author of the opinion,  Judge Keenana fairly recent Obama appointee, had some pretty choice words for Mukasey’s linguistic gymnastics.

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DOJ Hotline for Civil Rights Concerns About Alabama’s Anti-Immigrant Law

Via the crImmigration blog:

The U.S. Department of Justice posted the following message on its Facebook page last week:”To report potential civil rights concerns related to the impact of Alabama’s immigration law H.B. 56, please contact 1-855-353-1010 or [email protected]

Is Simple Assault a Crime Involving Moral Turpitude post-Silva-Trevino?

As discussed in a previous post, in Silva-Trevino, ex-Attorney General Mukasey attempted to drastically revise nearly a century of jurisprudence governing the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT).  This post will attempt to answer the question –  when are the Immigration Courts allowed to look beyond the record of conviction to determine whether a conviction for simple assault is a CIMT?

EDIT: After the Fourth Circuit’s recent decision rejecting Silva-Trevino in Prudencio v. Holder, this approach is looking more and more vulnerable to attack.  Check to see whether Silva-Trevino is still good law in your circuit. I discuss the Fourth Circuit decision here.

FURTHER EDIT – IMPORTANT: The Supreme Court’s June 2013 decision in Descamps v. US clarified when the modified-categorical approach is to be used for determining whether a crime is a crime of violence. This has completely changed the Fourth Circuit’s analysis of whether simple assault type crimes will be a crime of violence (and therefore a CIMT). See US v. Royal (4th Cir., Oct. 2013).  I imagine that the situation is changing quickly in other circuits as well.

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11th Circuit Rejects Silva-Trevino Framework for Looking Beyond Record of Conviction in Immigration Cases

Today, the Eleventh Circuit became the latest US Court of Appeals to reject the new Silva-Trevino method for determining whether a crime involves moral turpitude (CIMT).  Silva-Trevino was former Attorney-General Mukasey’s parting shot at immigrants, and it was a doozy.  In Silva-Trevino, AG Mukasey made huge changes to the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT) under the guise of  creating a national standard to resolve what he perceived as an ambiguous statute.  In Sanchez Fajardo, the 11th Circuit held that ex-AG Mukasey’s decision was not entitled to Chevron deference because there was no ambiguity. Continue reading