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CRIMINAL BARS AND REMOVAL ISSUES
Dree Collopy, Esq. ~ Prerna Lal ~ Lory D Rosenberg, Esq.
Criminal Bars to Deferred Action
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
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, cont’d.
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 it’s 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 hasn’t been expressly defined
Discretionary Denial, cont’d.
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
hasn’t 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?, cont’d.
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, cont’d.
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
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