Practice Nuts and Bolts II

CRIMINAL BARS AND REMOVAL ISSUES

Dree Collopy, Esq. ~ Prerna Lal ~ Lory D Rosenberg, Esq.

Criminal Bars to Deferred Action

FELONY

Any federal, state or local offense, that is punishable by imprisonment of more than 1 year Refers to the maximum possible sentence

Without regard to state classification

Significant Misdemeanor

Any federal, state, or local offense that is punishable by a maximum term of imprisonment of 1 year or less but greater than 5 days Including specifically, Domestic violence Sexual abuse or exploitation Unlawful possession or use of a firearm Drug sales (distribution or trafficking) Burglary Driving under the influence of alcohol or drugs

Significant Misdemeanor, contd.

Any other misdemeanor not listed above for which

the person received a jail sentence of more than 90 days (but) a suspended sentence does not count towards the 90 days

Three Non-Significant Misdemeanors

3 or more non-significant misdemeanors that

do not occur on the same day nor arise from the same act or scheme of misconduct

Only federal, state or local offenses that are

punishable by a maximum term of imprisonment

of 1 year or less but greater than 5 days

Silent Exception to the Criminal Bars

A person who comes within one of the 3 previous criminal bar categories (felony, significant misdemeanor, or 3 non-significant misdemeanors) And is not covered by certain listed exceptions that do not lead to automatic disqualification

May (in rare cases) qualify for deferred action despite the bar, by showing exceptional circumstances (as yet undefined)

Automatically Offenses That Are Not ^ Criminal Bars

Any state immigration-related felony or misdemeanor

Minor driving offenses, e.g., driving without a license Juvenile delinquency dispositions Expunged convictions Note: DHS may consider these offenses under the threat to public safety and totality of the circumstances language that accompanies its discretionary authority to grant deferred action

Any Criminal History Can Result in a Discretionary Denial

Threat to Public Safety

DHS may deny on finding applicant poses a threat to public safety (e.g. gang membership or participation in criminal activities) Applicant must show exceptional circumstances to be granted deferred action

Note: The exceptional circumstances standard hasnt been expressly defined

Discretionary Denial, contd.

Threat to National Security

DHS may deny on finding participation in activities that are a threat to national security Applicant must show exceptional circumstances to be granted deferred action Note: The exceptional circumstances standard

hasnt been expressly defined

Discretionary Denial Standard

Totality of Circumstances

No guarantee of a grant of deferred action

DHS may consider complete criminal history even where no bars exist
Note: Persons in removal proceedings who may not meet the DACA criteria still may seek prosecutorial discretion under the June 17, 2011 Morton Memo

How to address and/or dispute criminal issues?

Evidentiary requirements I-821D: Have you ever been arrested for, charged with, or convicted of a felony or misdemeanor in the United States?"

Do not include minor traffic violations that only resulted in a fine, unless it was alcohol- or drugrelated.

If yes to any of the above, applicant must submit copies of all arrest records, charging documents, dispositions (outcomes), sentencing records, etc.

Same for an applicant with a foreign conviction

How to address and/or dispute criminal issues?, contd.

FBI criminal background check Criminal records requests

Arrest records from police If applicable, obtain a copy of the final criminal court disposition from the Court clerk.

Sealed records under state law Access to records may be precluded due to court seal or state law E.g. California law permits juvenile records to be unsealed under very limited circumstances, which do not encompass DACA Need to explain the reason that relevant records are unavailable and cite to any applicable state statutes

Documenting for discretion

Evidence of mitigating factors Evidence of rehabilitation

Participation in counseling or social service program Letter from parole/probation officer Certificate of good conduct Letter from clergy, volunteer work or administrator with knowledge of rehabilitation

Good moral character evidence if any arrests or other criminal issues

Volunteer work and charitable contributions Religious community participation LPR/U.S. citizen family members Stable employment, i.e. business ownership School records grades, activities, awards Selective Service registration (for men) Affidavits from people who know the individual: family, friends, neighbors, community members, teachers, employers, politicians etc.

DACA In Removal Proceedings

Persons in proceedings or subject to a final order of removal or voluntary departure may apply (even if under 15, but not if over 31)
Practical and strategic considerations regarding removability and relief under Immigration Judge/BIA jurisdiction and concurrent DACA eligibility

Citizenship defense Deportability defense Special Immigrant status

Removal Hearing Postures

Before the IJ, pre-final removal order

Administrative closure or termination Seek or preserve more permanent relief

Adjustment of Status Cancellation of Removal Asylum U visa

Pursue all avenues

Removal Hearing Postures, contd.

Before the IJ, post-final order

Within 90 days - Motion To Reopen for administrative closure or termination INA 240(c)(7)(C) Within 60/30 days - Motion To Reopen will cancel voluntary departure 8 CFR1240.26(e)(1) Out of time or more than one motion Motion To Reopen with ICE

Removal Appeals

Before the BIA, pre-final order

Motion To Remand Motion To Withdraw Appeal

Federal Circuit Court of Appeals

Motion To Hold in Abeyance Motion To Remand Second Circuit ruling Motion To Withdraw Petition

Apprehended or Detained DACA Eligible Applicants in ICE Custody

CBP should screen and release prima facie eligible applicants

Eligible applicants in detention

Cases of emergency or imminent removal Law Enforcement Support Center Hotline 1-855-448-6903 (24hrs/day, 7days/week) Applicant should identify him/herself to the ICE Detention Officer To Office of the ICE Public Advocate 1-888-351-4024 (9am -5PM, M-F), or EROPublicAdvocate@ice.dhs/gov