IMMIGRATION LAWfor Criminal and Civil Practice

Susan I. NelsonWilliamson County Bar Association

September 26, 2014

DROP THE I-WORD

The “I” word presumes someone is guilty of illegal entry into the U.S.

DROP THE I-WORD

Use of the I-word affects attitudes toward immigrants and non-immigrants alike, including people of color.

The racially discriminatory message is not explicit, but hidden or “coded.”

The term has deliberately been made popular in the media by anti-immigrant factions.

DROP THE I-WORD

ALTERNATIVES: DREAMer (young people raised and

educated in the U.S.) IMMIGRANT UNDOCUMENTED IMMIGRANT UNAUTHORIZED IMMIGRANT

IMMIGRATION CLASSIFICATIONS

U.S. Citizen Immigrant Nonimmigrant Undocumented

U.S. Citizens

Born in the U.S.A. Naturalized Derived from U.S.C. parent

U.S. Citizens

Legal Permanent Resident

“Green card” holder May live, work and travel in the U.S. May not vote Can be deported for

criminal or other grounds

Nonimmigrant

Visitor Student Temporary workers

Undocumented

Visa overstay Entered without inspection

– avoided border check points No lawful status

– Entered through border check point but did not have visa or permission to enter

PATHS TO LPR STATUS

Family Based Visas Employer Based Visas Victim Visas Asylum

VICTIM VISAS

Crime victims Trafficking victims Law enforcement agency must sign

document affirming cooperation for Immigration

Provides a path to LPR

VAWA: Family violence victims who are married to/children of USC/LPR

CRIMMIGRATION LAW

Padilla v. Kentucky, 559 U.S. 356 (2010)

The Padilla Rule

The Sixth Amendment requires that “counsel must inform her client whether his plea carries a risk of deportation.” Id. at 374.

Criminal counsel has the duty to investigate and advise about immigration consequences

Padilla’s Classifications

Is the relevant immigration statute “succinct, clear and explicit”? Y = counsel must advise the non-citizen

defendant of the specific immigration consequences

N = counsel has duty to advise that the plea might carry adverse immigration consequences

Padilla’s Classifications

Relevant immigration statute “succinct, clear and explicit:”

Aggravated robbery = CIMT, Ag.F if sentence of >1 year

DWI ≠ CIMT, Ag. F (But watch for clients with multiple convictions where aggregated sentences >5 years)

Padilla Not Retroactive

Does not apply retroactively to cases already final prior to the Padilla case. Chaidez v. United States, 133 S.Ct. 1103, 1113 (2013)

Conviction

A formal judgment of guilt entered by the court OR

If adjudication of guilt withheld where:– A judge or jury has found the noncitizen guilty or

the noncitizen has entered a plea of guilty or nolo contedere or has admitted sufficient facts to warrant a finding of guilt, and

– The judge has ordered some form of punishment, penalty, or restraint on the noncitizens liberty to be imposed.

Conviction

Texas Deferred adjudication = conviction A court-ordered drug treatment or domestic

violence counselling alternative = conviction IF guilty plea is taken

Sentence includes any suspended sentence Juvenile adjudication ≠ conviction IF

analogous to a federal juvenile delinquency adjudication

Undocumented Clients

Conviction will most likely result in removal proceedings– EXC: DACA eligible

Will the plea– disqualify client from relief from removal? – result in your client being detained?

Lawfully Present

Will the plea:– result in client being placed in deportation

proceedings?– disqualify client from relief from deportation? – result in your client being detained?

Will the client be able to leave and return to the U.S.?

Will the client be able to Naturalize?

Aggravated Felony

Defined under 8 USC §1101(a)(43) Murder, rape, sexual assault of a minor, drug

trafficking, firearm trafficking … Crime of violence, theft or burglary where

sentence is “at least 1 year” Fraud or tax evasion where loss to victim

>$10,000 Can be a misdemeanor

Controlled Substances

Violation of any law or regulation of a state, the US or a foreign country related to a controlled substance as defined in §102 of the Controlled Substance Act

EXC: single offense of simple possession of 30g or less of marijuana

May also be an Aggravated Felony, CIMT

Crimes of Moral Turpitude

Not defined by statute Crimes that are inherently evil or wrong Eg., theft, fraud, serious violence, most sex

offenses Petty Offense Exception: 1 CIMT, offense not

punishable by >1 year, not sentenced to >6 months

Crimes of Domestic Violence

Texas Penal Code §22.01(a)(1) is not a crime of violence because it can be committed recklessly. United States v. Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006)

Record of conviction important May be COV/CIMT if conduct intentional,

knowing

Firearms

Convicted at any time after admission under any law of purchasing, selling, offering for sale, exchanging, using, owning or possession of a weapon, firearm or destructive device

Ground of deportability NOT a ground of inadmissibility BUT may

result in discretionary denial

Firearms

U.S. v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011)

Federal statute prohibits aliens from possessing firearms. 18 U.S.C. 922(g)(5)

Protections contained in Second Amendment do not extend to aliens illegally present in the United States. Id. at 442.

ICE Holds

Undocumented Lawfully present charged with deportable

offense Hold can be dropped prior to release in some

circumstances ICE issues detainer and takes custody within

48 hours after release from local authorities

ICE Custody

NO REMOVAL USC LPR w/o conviction Exercise of

prosecutorial discretion

Eg., DACA

REMOVAL Release on OR Set bond and transfer to

detention Refuse to set bond and

transfer to detention

ICE Detention/Bond

Transferred to ICE detention facility Bond paid at ICE District Office (eg., San

Antonio) If no bond or too high, can ask Immigration

Court to lower bond Mandatory detention = must stay in custody

FAMILY LAW ISSUES

Termination of Parental Rights

In re E.N.C., 384 S.W.3d 796 (Tex. 2012) Father convicted in another state of unlawful

conduct with a minor and given probation years before the children were born was later deported to Mexico.

No evidence concerning the offense nor the circumstances of deportation offered.

Termination of Parental Rights

Trial court terminated father’s rights based on criminal record and deportation. Id. at 801.

A divided Texarkana Court of Appeals, affirmed finding that while the father’s deportation alone could not support the trial court’s findings, his conduct that led to deportation did support the judgment. Id. at 801-802.

Termination of Parental Rights

Supreme Court reversed, holding that the evidence was legally insufficient to support termination.

“[D]eportation, like incarceration, is a factor that may be considered (albeit an insufficient one in and of itself to establish endangerment), its relevance to endangerment depends on the circumstances.” Id. at 805.

Termination of Parental Rights

“[N]o reasonable fact-finder could have formed a firm belief or conviction that the termination of Francisco’s parental rights was in the children’s best interest.” Id. at 809.

The Department never assessed father’s situation in Mexico, and there was a lack of evidence establishing the instability of the father’s home in Mexico. Id. at 808.

Custody

Custody of Children in Mixed Status Families: Preventing the Misunderstanding and Misuse of Immigration Status in State Court Custody Proceedings, 47 Family Law Quarterly 191 (Summer 2013)

National Immigrant Women’s Advocacy Project (NIWAP) http://niwaplibrary.wcl.american.edu/

Custody

“[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” In re E.N.C. at 806.

“[O]verriding presumption that the … best interests of the child are served by reuniting the child with his or her parent.” In re Angelica L., 767 N.W.2d 74, 94 (Neb. 2009)

Family Abuse

Immigration status exacerbates the level of violence in abusive relationships when batterers use the threat of deportation and control of information about legal status to lock their spouses and children in violent relationships.

Family Abuse

Victims afraid to report abuse, leave, unable to support self and children.

May be eligible for VAWA, U or T visas. Immigrant detainees may have children

placed with the abuser while in detention.

Marriage

USCs and LPRs can petition for their spouses to receive LPR status.

The marriage must be valid in the jurisdiction where it was contracted.

Step-children where marriage occurred prior to 18th birthday

Some stand to lose immigration benefits if they marry (eg., son or daughter of LPR)

Divorce

No longer eligible for petitions based on marriage relationship– EXC: VAWA

Affidavit of Support obligations continue after divorce

Adoption

Non-citizen children adopted prior to 16th birthday qualify as child under immigration law (under 18 if younger siblings adopted)

Must be in physical and legal custody of adoptive parents for 2 years prior to filing.– EXC: VAWA (abused children)

CIVIL LAW ISSUES

Immigration Status

TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 245 (Tex. 2010)

Evidence impugning character based on immigration status = Harmful error

Evidence admitted of driver/employee’s:– Prior deportation– Fake social security number– Lied to obtain a commercial DL

Immigration Status

Plaintiff argued that the evidence of driver/employee’s immigration status was relevant to issues of negligent hiring, negligent entrustment and for impeachment evidence.

Employer complained that the evidence was not relevant to any issue in the case BUT was highly prejudicial.

Immigration Status

Court concluded that neither immigration status nor use of a fake SS# to obtain commercial DL caused the collision.

Not admissible as impeachment evidence. “[I]ts prejudice far outweighed any probative

value, but also because it fostered the impression that [the employer] should be held liable because it hired an illegal immigrant.” Id.

Immigration Status

Justice Medina: “Such appeals to racial and ethnic prejudices, whether ‘explicit and brazen’ or ‘veiled and subtle,’ cannot be tolerated because they undermine the very basis of our judicial process.” Id.

Immigration Status

Tyson Foods v. Guzman, 116 S.W.3d 233, 247 (Tex. App.--Tyler 2003)

Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity.

Immigration Status

Republic Waste Services, Ltd. V. Martinez, 335 S.W.3d 401 (Tex. App.--Houston [1st Dist.] 2011)

Trial court excluded evidence of decedent’s lack of immigration status

Employer argued that the decedent may have been deported and that it was relevant to his future earnings.

Houston court affirmed trial court ruling.

Unlicensed Drivers

Williams v. Steves Industries, Inc., 699 S.W.2d 570 (Tex. 1985)

The fact that a driver is unlicensed does not determine that the driver is in fact incompetent.

Deferred Action for Childhood Arrivals (DACA)

DACA

On June 15, 2012, Secretary of DHS, Janet Napolitano, issued a memo authorizing DACA

Temporary relief from deportation and employment authorization for young people who entered the U.S. as children

NOT the DREAM Act

Who Qualifies for DACA?

AGE REQUIREMENTSBorn after June 15, 1981

ANDArrived in the U.S. before age 16

ANDMust be at least 15 to apply (unless in removal proceedings)

Who Qualifies for DACA?

PRESENCE/RESIDENCE REQUIREMENTSContinuously resided in the U.S. from June 15, 2007 to the present (brief, casual or innocent absences do not disrupt)

ANDPhysically present in the U.S. on June 15, 2012

ANDEntered without inspection before 6/15/2012

OR immigration status expired before 6/15/ 2012

Who Qualifies for DACA?

EDUCATIONGraduated from High School

ORObtained a GED

ORCurrently in school

ORHonorably discharged from U.S. military*

DACA Disqualifiers

Serious criminal record DWI Gang ties Removal or deportation that interrupted

continuous presence

Unaccompanied Alien Children

UACs 2008-2014

Source: FY2008-FY2013: U.S.D.H.S., United States Border Patrol, Juvenile and Adult Apprehensions – FY 2013; For FY2014, unpublished data provided by CBP to CRS.*FY2014 figures from 10/1/2013-5/31/2014 (⅔ of fiscal year)

UACs 2014

TVPRA

Trafficking Victims Protection Reauthorization Act (2008)

UAC from noncontiguous states (not Mexico) – placed in removal proceedings– Transferred to facilities run by the Office of

Refugee Resettlement (ORR) where they meet with social workers and attorneys

– HHS appoints independent child advocates for particularly vulnerable UAC

TVPRA for Mexican UAC

Presumption of immediate return to home country

No hearing before an immigration judge, unless: – the child is identified as a victim of severe

trafficking, – demonstrates a credible fear of persecution, or – is unable to make independent decisions about

their options.

TVPRA for Mexican UAC

“No meaningful screening is being conducted.” [Appleseed Foundation 2011 report]

TVPRA screening conducted by CBP officers trained to repel external threats and without child welfare, trauma, abuse and sexual assault expertise.

Pressure on UACs to withdraw their applications for admission to the US

UAC relief available

Special Immigrant Juvenile Status– Declared dependent by state court– Unable to reunite with 1 or more parents on

account of abuse, abandonment or neglect– Not in “best interest of the child” to return to

country

UAC relief available

Asylum– Unable or unwilling to return to home country due

to well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group

Trafficking Visa Crime Victim Visa

Need for Legal Representation

Need for Legal Representation

Volunteer Opportunities

texasbar.com/immigration Texasbar.com/volunteer

QUESTIONS?

www.nlftx.com

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