Benefits & Removal Track: Ethical Issues in Practicing Immigration Law February 20, :45 a.m. 10:45 a.m.

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Benefits & Removal Track:

Ethical Issues in Practicing Immigration Law

February 20, 2014

9:45 a.m. – 10:45 a.m.

Barbara Fishleder, OSB Professional Liability Fund

Amber Hollister, Deputy General Counsel, Oregon State Bar

General Counsel Office

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Benefits & Removal Track: Ethical Issues in Practicing

Immigration Law

T A B L E O F C O N T E N T S

Page #

Ethical Issues in Practicing Immigration Law Outline ... 1

Hypotheticals (Slides) ... 2

Malpractice Coverage Through the PLF – FAQ ... 4

PLF Bylaws and Policy Manual – Principal Office ... 6

Immigration Consequences of Criminal Activity Immigration Attorney Referral

Checklist ... 11

Resources For Immigration Lawyers ... 14

In Brief Article: What Defense Lawyers Need To Know About Immigration ... 21

In Brief Article: Immigration Consequences of Criminal Law ... 24

OAAP Brochure ... 27

PMA Brochure ... 29

CLE Seminars And Publication Catalog ... 31

PLF Practice Aids ... 38

UPL Advisory Opinion No: 2013-1 ... 40

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Ethical Issues in Practicing Immigration Law AILA NW Conference

February 20, 2014

Barbara Fishleder, OSB Professional Liability Fund Amber Hollister, Oregon State Bar

Peter Jarvis, Holland & Knight 1. Scope of representation and unauthorized practice issues.

a. What federal preemption does and does not cover: limits on licensure = limits on scope, but the need to spot issues may be required.

i. See Hypothetical No. 1

b. Lawyer reliance on non-lawyer staff.

i. In re Nishioka

ii. Assisting UPL. UPL Advisory Op. No. 2013-1 c. Special PLF and malpractice coverage issues.

d. See Hypothetical Nos. 1 & 2 2. Conflict of interest issues.

a. Threshold question: whose conflicts rules apply in light of RPC 8.5?

b. The number of clients you want, the number of clients you need and the number of clients

you have may not be the same.

i. The reasonable/subjective expectations test.

ii. The so-called “simple solution” in employer-employee representation may often

be neither.

c. Conflicts waiver components.

i. Who is represented and on what. ii. Who is not represented and on what. iii. How could conflicts arise?

iv. How could each party be affected/why should they care.

1. Loyalty.

2. Confidentiality.

3. The definition of materiality.

v. Must reasonably appear understandable to and understood by clients. vi. In writing.

vii. Recommendation to consult independent counsel.

d. Specific conflict situations.

i. Representation of H, W and Child when child or spousal abuse issues arise—

U/T/VAWA/DV. See Hypothetical No. 4

ii. Representation of immigrant and affiant in affidavit of support situation. See

Hypothetical No. 5

iii. Representation of Employer and employee when employer decides to

terminate employee or employee wants to look for new job. 3. Confidentiality Issues.

a. RPC 1.6 and its exceptions. (Including In re Hasche.)

b. Duty of confidentiality vs duty of honesty.

c. Confidentiality in joint client/co-client situations.

4. Confidentiality and conflict issues in the context of RPC 1.18.

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Barbara Fishleder OSB Professional Liability Fund

Ethical Issues in Practicing

Immigration Law

Barbara Fishleder, OSB Professional Liability Fund Amber Hollister, Oregon State Bar

Peter Jarvis, Holland & Knight

Hypothetical No. 1

Dan A. Dilemma, an immigration lawyer who practices in Bend and is licensed in Washington, meets with client Sam Stickyfingers, who is seeking to adjust his status based on his marriage to an LPR. During the initial interview, Sam mentions that he is facing misdemeanor theft charges in g g Deschutes County Circuit Court, but he plans to plead guilty the next day and be sentenced to time served.

Can Dan advise Sam that pleading guilty to the theft charges could bar him from adjusting his status? What should Dan do?

Hypothetical No. 1 cont.

After Dan advises Sam of the immigration consequences of pleading guilty to a crime of moral turpitude, Sam asks him whether he should try to get the charges dismissed, since the alleged crime happened over two years before he was charged. Dan thinks the statue of limitations may have passed on the misdemeanor theft charge. What should Dan do? Can Dan give Sam advice on filing a motion to dismiss?

Hypothetical No. 2

Brad Boundary, an immigration lawyer and member of the Oregon bar, works primarily out of a home office in Vancouver, Washington, but occasionally uses a Portland office to meet with clients. His Portland office is listed on his firm letterhead. Is Brad required to have OSB Professional Liability Fund (PLF) malpractice insurance?

Hypothetical No. 2 cont.

Brad decides to close his Portland office. He continues to work primarily at home, but rents an office to meet clients at a friend’s firm in downtown Vancouver. Brad changes his letterhead to reflect the Vancouver address. Sometimes he travels to Portland to eat lunch with clients, meet with USCIS, or appear at immigration court.

Is Brad required to have PLF insurance? Is Brad eligible to purchase PLF insurance?

Hypothetical No. 3

Hannah Hometown is an immigration lawyer and a member of the California bar. She has an office in downtown Portland. Is Hannah required to have PLF insurance?

I h li ibl h PLF i ? Is she eligible to purchase PLF insurance? Can Hannah open a bankruptcy practice on the side?

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Hypothetical No. 4

Vera Velasquez, a partner at Velasquez & Alexander, meets Husband and Wife for an intake interview. Husband, a USC, wants to petition to adjust Wife’s status. During the intake, Vera learns that Wife entered without inspection. Husband mentions that he has an Assault IV charge pending (Wife is victim). Husband admits he gets angry when he drinks, but he has been going to AA. Husband says he’ll do whatever it takes to help Wife get legal status What Husband says he ll do whatever it takes to help Wife get legal status. What should Vera do?

(a) Refer Husband & Wife to new attorneys and do not explain why. (b) Refer Husband & Wife to new attorneys and explain to both Wife may be

eligible to self-petition under VAWA or obtain a U Visa.

(c) Refer Wife to her partner Abe Alexander, screen herself from the case, and refer Husband to a new attorney.

(d) Refer Husband to another firm but continue representing Wife with Husband’s informed consent.

Hypothetical No. 5

Attorney Charlie Carr is assisting Bernie, a foreign national, and his wife Bella, a USC, to file a petition to adjust Bernie’s status and obtain a green card. Because of Bella’s modest income, Charlie instructs Bernie and Bella that Bernie will need an additional Affidavit of Support.

Bernie contacts his cousin Max and asks him to be his joint sponsor Bernie contacts his cousin Max and asks him to be his joint sponsor. Charlie previously represented Max on an immigration matter. Charlie answers Max’s questions about the Affidavit and explains how Max will legally responsible for supporting Bernie. The day before Charlie mails the entire packet to USCIS, Bella calls and says that she expects to be laid off in six months.

Who is Charlie’s client? What can Charlie tell Max? Can he continue representing his client(s)?

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MALPRACTICE COVERAGE THROUGH THE PROFESSIONAL LIABILITY FUND ANSWERS TO SOME FREQUENTLY ASKED QUESTIONS

1. Q: What rules or policies apply to the eligibility/requirement of PLF coverage?

A: PLF Policy 3.180 defines the term “office” as a location which is held out to the public by an attorney as an office where the attorney engages in the private practice of law. The rule

provides examples of indicia of “holding out an office to the public.” See the pages following this

“Q and A” sheet or go to our home page at www.osbplf.org, view the left-side navigation bar

segment, “Primary Coverage,” and click on “Policies and Forms.” Then view Policy 3.180 – Out- of- State Attorneys; Principal Office.

If an attorney maintains two “offices” as defined by the rule, the attorney’s principal office is generally defined as the office where the attorney is physically present more than 50 percent of the time he or she is engaged in the private practice of law.

2. Q: If I am eligible for PLF coverage, what kinds of assistance can I get from the PLF?

A: The PLF offers extensive assistance and support, including practice management assistance (the PLF’s Practice Management Advisors), personal assistance (the Oregon Attorney Assistance Program), hundreds of free or nominally priced CLE programs, and thousands of practice aids.

See the attached resource material or go to www.osbplf.org for a full explanation of available

resources.

3. OREGON BAR ADMISSION/OREGON BUSINESS OFFICE AND WASHINGTON HOME OFFICE WITH OREGON INDICIA

Q: I am admitted to the Oregon State Bar. I work from an office building in Oregon and sometimes from my home in Vancouver, Washington. I list an Oregon post office box and Oregon cell phone number on my letterhead. My website lists the office building as my office space. Can I get PLF coverage?

A: Yes, you are eligible for PLF coverage. Your law office “indicia” are consistent with your principal place of business in Oregon.

4. OREGON BAR ADMISSION/WASHINGTON HOME OFFICE AND WASHINGTON BUSINESS OFFICE INDICIA

Q: I am admitted to the Oregon State Bar, but I have no formal Oregon office of my own. I practice immigration law from my home in Vancouver, Washington. I list a Washington post office box and Washington cell phone number on my letterhead. I meet clients at a downtown Vancouver, Washington office building that allows a pay-per-use rental of the building’s conference room. I am an Oregon lawyer, and I would really like to obtain PLF malpractice coverage and get the benefit of all the resources offered by the PLF. Am I eligible for PLF coverage?

A: Unfortunately, your current arrangement makes you ineligible for PLF coverage. In order to get PLF coverage, your principal office must be in Oregon. Even though you are not admitted in Washington, your office “indicia” is in Washington. To be eligible for coverage, you will need to make changes in your arrangement. We suggest you keep reading these examples!

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5. WASHINGTON BAR ADMISSION/OREGON AND WASHINGTON OFFICES

Q: I am admitted to the Washington State Bar, and I practice immigration law in Washington and Oregon. I live in Oregon, and I have a law office in Portland, Oregon and in Vancouver, Washington. I spend most of my time working at home in Oregon or at my Oregon office. I would like to purchase PLF coverage. Am I eligible?

A: No. To be eligible to purchase PLF coverage, you need to be admitted in Oregon AND have your principal office in Oregon.

6. OREGON AND WASHINGTON BAR ADMISSIONS/TWO OFFICES/MOST WORK DONE IN OREGON Q: Similar to the fact pattern of #5, I practice immigration law in Washington and Oregon. I live in Oregon, and I have a law office in Portland, Oregon and in Vancouver, Washington. I spend most at my Oregon office. I have Bar Admissions in both Oregon and Washington. I would like to buy PLF coverage. Am I eligible?

A: Yes, if more than 50% of your time practicing law is spent at your Oregon office. 7. OREGON AND WASHINGTON BAR ADMISSIONS/TWO OFFICES/MOST WORK DONE IN

WASHINGTON

Q: I have Bar Admissions in both Oregon and Washington. I have a law office Portland, Oregon and in Vancouver, Washington. I spend more than 50% of my time working at my Washington law office. I would like to purchase PLF coverage. Am I eligible?

A: No. In order to purchase PLF coverage, more than 50% of your time practicing law must be spent at your Oregon office.

8. OREGON BAR ADMISSION ONLY/WASHINGTON HOME OFFICE AND OREGON AND WASHINGTON INDICIA

Q: I am admitted to the Oregon State Bar, but I have no formal office of my own in Oregon. Most of the work that I do is from my home in Washington; however, I have an affiliation with an Oregon colleague, and she allows me to use her firm’s Oregon conference room for meeting my clients. I list my Washington cell phone number on my letterhead and the Oregon address of the Oregon location where I see clients. My website lists the Oregon conference room as my office location. Can I get PLF coverage?

A: Probably. The answer is not perfectly clear because your “indicia” of principal office is mixed, i.e.: a Washington cell phone number and an Oregon address. If you want to be unambiguously eligible for PLF coverage, you must present yourself as having your principal office in Oregon. Indicia of your “Oregon principal office” include information given to the public, such as address, phone number, and the text you use on your website and other marketing materials.

9. WASHINGTON AND OREGON BAR ADMISSION/WASHINGTON HOME OFFICE AND OREGON AND WASHINGTON INDICIA

Q: I am admitted in Washington and Oregon. Similar to Question #8 above, I have no formal office of my own in Oregon. Most of the work that I do is from my home office in Washington; however, I have an affiliation with an Oregon colleague and she allows me to use her firm’s conference room for meeting my clients. The phone number is use is my cell phone number, which has a Washington area code. My letterhead and website list the Oregon address of the Oregon location where I see clients. Can I get PLF coverage?

A: Since you are listing only the location where you see clients on your letterhead, which is Oregon, you are likely eligible for PLF coverage. However, as in Question #8, it would be best to keep the indicia all Oregon related and to use an Oregon phone number.

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PLF Bylaws and Policy Manual 3.180 OUT‐OF‐STATE ATTORNEYS; PRINCIPAL OFFICE (A) The provisions of ORS 9.080 (2) (a) and (c) concerning the location of the principal office of an active member of the Oregon State Bar are interpreted by the Professional Liability Fund as stated in this policy. This policy will apply to all active members of the Oregon State Bar. (B) Definition of Office: As used in this policy, the term “office” will mean a location which is held out to the public by an attorney as an office where the attorney engages in the private practice of law. Indicia that a location is held out to the public in this manner will include, but not be limited to, the following: (1) Listing of the location on an attorney’s letterhead, business cards, and billing forms as the attorney’s office.

(2) Listing the location in local telephone directories, bar directories, the Martindale‐Hubbell

directory, and other directories as the attorney’s office address. (3) Exterior and interior signage indicating to the public that the location is an attorney’s office. (4) The existence of an office at the location which is dedicated solely to the attorney’s use. (5) Configuration of the location as an attorney’s office, separation of the location from other offices of the attorney not used as an attorney’s office, and separation of the location from the residence or personal living space of the attorney or another person. (6) Maintenance of a telephone number for the location which is separate from the telephone number of any other office of the attorney and from the residence or personal living space of the attorney or another person. (7) Holding of meetings with clients, potential clients, or other counsel at the location as part of the attorney’s private practice of law. (C) No Office: If an attorney has no office as defined in subsection (B) above, the attorney’s principal office as defined by ORS 9.080 (2)(a) will be defined as the attorney’s principal residence if the attorney is an active member of the bar association of the state of residence; otherwise, the attorney’s principal office will be deemed to be in Oregon unless the attorney affirmatively demonstrates to the PLF that the attorney does not engage in the private practice of law in Oregon.

(D) One Office: If an attorney maintains only one office as defined in subsection (B) above, the

attorney’s principal office as defined by ORS 9.080 (2) (a) will be defined as that office. (E) Two or More Offices: (1) Two Offices: If an attorney maintains two offices as defined in subsection (B) above, the attorney’s principal office as defined by ORS 9.080 (2) (a) will be defined as the office where the attorney is physically present more than 50 percent of the time engaged in the private practice of law. 6

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(2) Multiple Offices: If an attorney maintains more than two offices as defined in subsection (B) above, the location of the attorney’s principal office as defined by ORS 9.080 (2) (a) will be defined by making the following calculation:

(a) All the time the attorney is physically present in all offices of the attorney in

Oregon will be aggregated the “Oregon Office Time”. (b) All the time the attorney is physically present in all offices of the attorney outside of Oregon will be aggregated the “Non‐Oregon Office Time”. (c) The two totals calculated under subsections (1) and (2) above will be compared. If

the Oregon Office Time is greater than the Non‐Oregon Office Time, the attorney’s principal office is in Oregon. If the Non‐Oregon Office Time is greater than or equal to the Oregon Office Time, the attorney’s principal office is not in Oregon. (F) In determining the location where an attorney engages in the private practice of law more than 50 percent of the time engaged in the private practice of law for the purposes of ORS 9.080 (2) (c) and this policy, only the amount of time the attorney is physically present at each office of the attorney (as defined under subsection (B) above) while engaged in the private practice of law will be considered. Time spent at any office unrelated to the private practice of law will not be considered. Other factors will not be relevant to this determination, including, but not limited to, the following: (1) The fact that an attorney lives in any particular state. (2) The fact that the attorney sometimes engages in the private practice of law at home if the home is not an office as defined under subsection (B) above. (3) The fact that the preponderance of an attorney’s clients are located in any particular state.

(4) The fact that an attorney’s practice is concentrated before the courts or agencies of any

particular state.

(5) The fact that an attorney uses secretarial, administrative, or research facilities located in

any particular state. (G) The determination of where the principal office of an attorney is located will be made as of January 1 of each year based upon an attorney’s activities during the prior 12 months (or during such continuous period ending on December 31 as the attorney has maintained at least one office in Oregon and at least one office outside Oregon, whichever time period is shorter). Subsequent mid‐year changes in the amount of time spent at various offices will not affect the attorney’s status except under the following circumstances: (1) If the attorney’s principal office as of January 1 was in Oregon, but the attorney ceases mid‐ year to have an office in Oregon, the attorney’s principal office will cease to be in Oregon as of the date the attorney ceases to have an office in Oregon. The attorney’s Claims Made Plan will automatically convert to Extended Reporting Coverage as provided under Policy 3.620, and the attorney will have no PLF coverage for any acts, errors, or omissions which occur after the date the attorney ceases to have an office in Oregon. The attorney may be entitled to a prorated refund of the annual PLF assessment. 7

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(2) If the attorney’s principal office as of January 1 was not in Oregon, the attorney has an office in Oregon, and the attorney ceases mid‐year to have an office outside of Oregon, the attorney’s principal office will be in Oregon as of the date the attorney ceases to have an office outside of Oregon. The attorney must notify the PLF within ten days, and will receive a prorated billing statement for PLF primary coverage for the balance of the year.

(H) An attorney who opens an office in Oregon but continues to maintain an office outside Oregon will

not be permitted or required to obtain PLF coverage until the next January 1, and then only if the attorney was physically present at the Oregon office a greater amount of time than at the office outside Oregon during the period when the attorney maintained the two offices. If the attorney wishes to have malpractice coverage before the attorney is permitted and required to obtain PLF coverage, the attorney should either continue whatever coverage was in place before the attorney established an Oregon office or obtain appropriate coverage from the commercial market.

(I) An attorney whose principal office as defined in this policy is not in Oregon is not entitled to obtain

PLF primary coverage. If an attorney whose principal office is not in Oregon nevertheless pays the PLF annual assessment intentionally or in error, the attorney will not have any coverage for claims which are made against the attorney which would otherwise be covered by the Claims Made Plan then in effect, and the attorney will be entitled to a refund of any assessment paid upon notice to the PLF and be exempt from participation in the PLF.

(J) (1) The PLF does not have adequate information in its files to determine whether or not an

attorney’s principal office is in Oregon, and it is the responsibility of each attorney to make the correct determination for himself or herself each year and update the determination mid‐year if appropriate. In the event the PLF has any question concerning whether or not an attorney’s principal office was in Oregon at any particular time, attorneys may be required to provide the PLF with relevant information and supporting documentation upon request. Attorneys may be required to provide such information and documentation as office schedules, time slips, and billing statements; office and docket calendars; travel records and invoices; photographs of office areas and signage; and copies of letterhead, business cards, billing forms, and telephone directory listings. Failure of an attorney to provide information and documentation within 30 days of request will be treated the same as a payment default under Policy 3.350 and ORS 9.200.

(2) The principal office of an attorney whose official mailing address (as maintained by the

Oregon State Bar) is outside Oregon will be presumed to be outside Oregon for the purpose of this policy. Such a presumption may be rebutted if the attorney completes such forms and provides such information and documentation as the PLF may request and the PLF is satisfied that the attorney’s principal office is in Oregon. Notwithstanding the rebuttable presumption stated in this subsection (2), all active members of the Oregon State Bar whose official mailing address is outside Oregon will be required to file an annual Request for Exemption with the PLF. (3) No payments for coverage will be accepted, and no coverage will be issued, to any attorney who does not provide the forms, information, and documentation requested by the PLF under subsections (1) and (2) above. (K) Special Situations: (1) If an active member of the Oregon State Bar (a) does not maintain an office in Oregon, (b) maintains an office in another state, and (c) is not a member of the bar association in the other state, the attorney’s principal office is not in Oregon and the attorney must claim exemption from PLF participation. 8

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(2) If an active member of the Oregon State Bar (a) maintains an office and engages in private practice in Oregon, (b) is a member of the bar of another state, and (c) engages in law‐related activities at an office in the other state which do not constitute the private practice of law, the attorney’s principal office is in Oregon and the attorney must obtain PLF coverage. The attorney will not have PLF coverage for his or her law‐related activities in the other state which do not constitute the private practice of law.

(L) Examples: This policy is illustrated by the following examples. (The attorney in each example is

assumed to be an active member of the Oregon State Bar engaged in the private practice of law.)

Example: Attorney A does not maintain an office anywhere and lives in Vancouver, Washington.

Attorney A is not an active member of the Washington State Bar. Her principal office is in Oregon.

Example: Same facts as prior example for Attorney B, except that Attorney B is also an active

member of the Washington State Bar. Attorney B’s principal office is not in Oregon, even if the majority of B’s practice and clients are in Oregon.

Example: Attorney C maintains an office in Vancouver, Washington, but is not a member of the

Washington State Bar. Attorney C does not maintain an office in Oregon, but all of her practice is in the court of Oregon. Her principal office is not in Oregon. Example: Attorney D maintains an office in Ontario, Oregon, and an office in Fruitland, Idaho. On January 1, Attorney D determines that he spent more time during the prior year physically located at his Oregon office than at his Idaho office. Attorney D’s principal office is in Oregon. Example: Same facts as prior example, except that Attorney D closes his Ontario, Oregon office on

the following May 15. Attorney D’s principal office ceases to be in Oregon on May 15, and his current PLF Claims Made Plan ends as of that date and automatically converts to extended reporting coverage. Attorney D may be entitled to a prorated refund of his annual PLF assessment.

Example: Attorney E maintains an office in Portland, Oregon and an office in Oakland, California.

On January 1, Attorney E determines that she spent more time during the prior year physically located at her California office than at her Oregon office. Attorney E’s principal office is not in Oregon.

Example: Same facts as prior example, except that Attorney E closes her Oakland, California office

on the following August 23. Attorney E’s principal office ceases to be outside Oregon on August 23, and she must notify the PLF within the next ten days. The PLF will send Attorney E a prorated assessment billing statement with coverage to commence August 23.

Example: Attorney F maintains an office in Portland, Oregon and an office in Seattle, Washington.

On January 1, Attorney F determines that he spent more time during the prior year physically located at his Seattle office than at his Portland office. Attorney E’s principal office is therefore not in Oregon. However, during the year it becomes obvious to Attorney F that he will spend more than 90 percent of his time in his Portland office. So long as Attorney F maintains a Seattle office, the location of his principal office does not change during the year and Attorney F is neither required nor permitted to obtain PLF coverage; however, the following January 1 his principal office for the coming year will be determined to be in Oregon.

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Example: Attorney G maintains three offices, one in Portland, Oregon, one in Salem, Oregon, and one in Vancouver, Washington. On January 1, he determines that he spent 25 percent of his time at his Portland office, 15 percent of his time at his Salem office, and 60 percent of his time at his Vancouver office during the prior 12 months. Because the Oregon office time (40 percent) is less than the non‐Oregon office time (60 percent), Attorney F’s principal office is not in Oregon. Example: Attorney H maintains three offices, one in Medford, Oregon, one in Yreka, California, and one in Denio, Nevada. On January 1, she determines that she spent 45 percent of her time at her Medford office, 20 percent of her time at her Yreka office, and 35 percent of her time at her Denio office during the prior 12 months. Because the Oregon office time (45 percent) is less than the non‐ Oregon office time (55 percent), Attorney H’s principal office is not in Oregon. On July 12, Attorney H closes her Denio, Nevada office. Because she still maintains an office outside of Oregon, the location of Attorney F’s principal office for the year does not change even though she spends more time at her Medford office than at her Yreka office during the rest of the year. However, the following January 1 her principal office for the coming year may be in Oregon if her total Oregon office time the previous year exceeded the total non‐Oregon office time.

Example: Attorney I is a member of both the Oregon and California State Bars, but maintains only

an office in Los Angeles. On September 1, he opens an office in Portland, but he keeps his Los Angeles office as well. During the balance of the year, Attorney I is physically present 80 percent of the time in his Portland office and 20 percent in his Los Angeles office. Attorney I is neither required nor permitted to maintain PLF coverage for the period September 1 through December 31, but he is required and permitted to obtain PLF coverage for the following year as of January 1.

(BOD 7/16/93; BOG 8/13/93; BOD 2/18/94; BOG 3/12/94; BOD 12/1/95; BOG 1/20/96; BOD 8/14/98; BOG 9/25/98)

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IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY

IMMIGRATION ATTORNEY REFERRAL CHECKLIST

[Rev 11/2013] PROFESSIONAL LIABILITY FUND (IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY IMMIGRATION ATTORNEY REFERRAL CHECKLIST)

Prepared By Franco Capriotti & Jeff Tapia - Capriotti International Law

If the person you are inquiring about is not a citizen of the United States, any type of

criminal conviction (even a misdemeanor) may result in immigration consequences that

have the potential for being more serious than the penalty for the crime itself.

When contacting an immigration attorney it will greatly help to gather the following

information.

CURRENT CUSTODY STATUS & DEADLINES

1. Is the person in custody?

a.

If so, where?

b.

If so, is there an immigration 'hold' (aka detainer) in place?

c.

If so, is a bond possible?

i.

How much?

d.

If not, is the person on bond?

i.

If so, how much and to what government agency was it paid?

2. When is the next court appearance, or other deadline?

PERSONAL INFORMATION

3. Full name and all known aliases.

4. Date and place of birth.

5. Native language and level of English fluency.

6. Does the person have any family in the US?

a.

If so, please provide details, especially on parents, children, or spouse

who were born in the United States or possess a green card (include ages

and birth places) and copies of their immigration related documents.

b.

If so, have any family members filed ‘sponsorship’ papers with

immigration? Please include copies, if available.

7. Is the person employed in the US?

a.

If so, please provide details.

b.

Have any employers filed sponsorship papers? If so, please provide

copies.

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IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY

IMMIGRATION ATTORNEY REFERRAL CHECKLIST

IMMIGRATION HISTORY

8. Alien, or “A,” number (it begins with the letter A and is followed by 8, or 9 digits).

9. A copy (if available) of all of the following:

a.

Passport (all pages, of all passports they have ever had).

b.

I-94 arrival/departure card, if applicable (front & back, it may be white, or

possibly green).

c.

Green card (aka permanent resident alien card), front and back.

d.

Employment authorization document.

e.

Any other document issued by the US Citizenship & Immigration Services.

10. List of all entries/exits in/out of the US and type of visas used (if any).

11. Has the person had any prior immigration arrests?

a.

If so, please provide details (and documents, if available).

12. Has the person ever appeared before an Immigration Judge?

a.

If so, please provide details (and documents, if available).

13. Has the person ever been stopped at a US border (or port-of-entry, which

includes airports and ‘pre-flight inspection’ stations at a foreign airport), ‘turned’

away, or refused entry?

a.

If so, please provide details (and documents, if available).

PRIOR CRIMINAL HISTORY

14. Does the person have prior convictions, including those they believe to have

been expunged or as part of an appearance in a juvenile, community or peer

court?

a.

If so, please provide statutory citations, charging documents, police

reports, and relevant orders/judgment/sentence (if available).

15. Did any of these convictions involve domestic violence? For example,

harassment or other crimes committed against a spouse, live-in partner, or

person with whom the person shares a child in common.

16. Has the person ever been found to have violated a restraining order?

17. Has the person ever been convicted for failure to appear?

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IMMIGRATION CONSEQUENCES OF CRIMINAL ACTIVITY

IMMIGRATION ATTORNEY REFERRAL CHECKLIST

OTHER

18. Has the person ever plead guilty or admitted having committed a crime (or the

essential elements of a crime) to a government employee, regardless of an entry

of conviction?

a.

If so was it part of a plea/diversion agreement?

b.

If so, was it under oath?

19. Has the person had any other ‘contact’ with any law enforcement official that is

not listed above? (Note: This could include something as ‘minor’ as fishing

without a license, DUII, or any other ‘agency’ contact).

20. Has the person ever claimed that they were a US Citizen?

a.

If so, please provide details.

21. Has the person ever voted in an election?

a.

If so, please provide details.

CURRENT CRIMINAL SITUATION

22. What is/are the crime(s) the client is accused of? Please provide statutory

citations, and copies of all charging documents and police reports.

23. Do any of these charges involve domestic violence? For example, harassment

or other crimes committed against a spouse, live-in partner, or person with whom

the person shares a child in common.

24. Are you considering a plea?

a.

If so, what possible crimes (including violations) are you considering?

b.

If so, what are the sentencing possibilities (both jail time and probation)?

Include information on statutory maximum sentence possibilities.

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RESOURCES FOR IMMIGRATION LAWYERS

Courtesy of the Law Office of Richard M. Ginsburg, LLC

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Introduction

Immigration law is complex and constantly changing. Beyond statutes and regulations, authoritative resources, of varying value, include: court and administrative precedent and non-precedent decisions, Federal Register notices, agency policy statements, agency guidance, agency field manuals,

operations memoranda, cables, minutes of agency liaison meetings with the American Immigration Lawyers Association (AILA) on the national, regional, and local level, and other pronouncements. The resources for immigration lawyers are numerous, scattered and constantly increasing in number. The following list points the practitioner to commonly used resources. While enough to drain the

practitioner's bank account, it is far from exhaustive. The new practitioner should talk to veterans in the field to get recommendations of useful resources.

An invaluable resource is other practitioners of immigration law. There is a high level of collegiality in the immigration bar and most are very willing to be helpful to their colleagues in discussing, analyzing, and strategizing cases. Internet bulletin boards and listservs can be found through the AILA and various URLs dedicated to specific areas of immigration law.

The resources mentioned here are far from an exhaustive list.

Statute and Regulations

The basic statute is the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et.seq., see

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7 e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM100000 0ecd190aRCRD&CH=act.

Regulations are found at: 6 C.F.R. et.seq. (Homeland Security); 8 C.F.R. et.seq. (Aliens & Nationality -

Part 1 - Definitions, Part 2 - Authority of the Secretary of Homeland Security & Part 3 - Executive Office for Immigration Review (Immigration Court)): 20 C.F.R. et.seq. (Employee Benefits (Department of Labor)); 22 C.F.R. et.seq. (Foreign Relations (State Department/Consular operations)); 28 C.F.R. et.seq. (Judicial Administration), and 42 C.F.R et.seq. (Public Health) see

http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR.

The INA and regulations at 8 CFR are available at the U.S. Citizenship and Immigration Services (USCIS or CIS) Web site. The USCIS LAWS section provides information on laws, regulations, and interpretations controlling immigration and the work of the immigration-related components of the Department of Homeland Security, see

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=02 729c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=02729c7755cb9010VgnVCM10000 045f3d6a1RCRD. This Web page has links to:

 Published USCIS regulations in Title 8 of the Code of Federal Regulations (8 CFR);

 Statutes governing immigration law in the Immigration and Nationality Act;

 USCIS Federal Register Publications, including notices, proposed, interim and final rules;

 Administrative Decisions from the USCIS Administrative Appeals Office; and

 Handbooks and guides used by immigration officers in performing their mission. The link to the federal regulations implementing the INA can be found at:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=64

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Regulations have not been promulgated for all sections of the INA. The practitioner must rely on agency written statements, for guidance, see

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=02 729c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=02729c7755cb9010VgnVCM10000 045f3d6a1RCRD.

Organizations

American Immigration Lawyers Association

AILA is a professional organization with over 12,000 members focused on continuing legal education. It maintains an extensive online library which is available, with restrictions, to non-members at

www.aila.org. Members have access to more extensive resources including listservs, mentoring, agency case liaison support, CLEs, legal publications, current events, conferences, Web resources and much more. It is hard to practice immigration law competently without being a member of AILA. AILA can be contacted at:

American Immigration Lawyers Association Suite 300, 1331 G Street, N.W.

Washington, DC 20005-3142 Phone: 202-507-7600

Fax: 202-783-7853

Web site: http://www.aila.org/

AILA resources include:

AILA InfoNet – an online resource and community for immigration news and information, including federal agency memos and regulatory activity; bills and public laws; legislative analysis and updates; practice advisories; AILA statements and issue papers; and more. InfoNet also provides AILA-related information and updates, including CLE offerings, publications, and announcements. InfoNet's interactive features enable members to: communicate and network with each other;

support and participate in AILA's issues; and to search over 15,000 immigration-related documents.

Limited access to InfoNet resources is available to non-AILA members. http://www.aila.org/

AILALink – a Web-based research tool, which includes immigration-related statutes, regulations, court and agency decisions, agency resources, immigration forms, many (but not all) AILA books, and Internet resources. It can be downloaded for use on mobile computers that do not have

Internet access. http://www.ailalink.org/login.php

AILA Publications include essential publications on immigration law topics and include practice guides, CLEs, scholarly writings, and volumes with the statutes and regulations. These are

essential to the practitioner. www.agora.aila.org/.

Kurzban’s Immigration Law Sourcebook is the indispensable bible of immigration law:

http://www.agora.aila/Product/Detail/4. It is available in many law libraries in Oregon.

Web Resources - AILA InfoNet maintains a list of resources including: legal, legislative, judicial, administrative, and policy research, executive office and relevant agencies, government

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information, human rights and refugee resources, law and professional associations, immigration-related organizations, international organizations, statutes and regulations.

http://www.aila.org/content/default.aspx?docid=1180 American Immigration Lawyers Association - Oregon Chapter

Resources related to immigration issues in Oregon. http://www.ailaoregon.com/. The AILA Oregon

Chapter has monthly meetings and periodic liaison meetings with local DHS agencies including CIS, CBP, and ICE.

Government Web Sites

Department of Homeland Security (DHS) - http:/www.dhs.gov/

DHS agencies, which were formerly part of the Immigration and Naturalization Service (INS) include:

 U.S. Citizenship and Immigration Services (USCIS or CIS) - This is the agency which provides

services under the INA. Its invaluable Web site includes forms, statutes, regulations, processing times, individual case status, Administrative Appeals Office decisions, filing instructions, on-line filing (limited), office locator, and many other resources.

http://www.uscis.gov.

 U.S. Customs and Border Protection (USCBP or CBP). This is the agency that oversees the

admission of persons to the U.S. at various ports-of-entry. Its Web site includes forms and

agency contacts- - http://www.cbp.gov/; and

 U.S. Immigration and Customs Enforcement (USICE or ICE) - This is the enforcement agency

under the INA (and many other non-immigration laws). Its attorneys prosecute removal (deportation) cases. Its Web site includes forms, agency contacts and an on-line library -

http://www.ice.gov.

Department of State

A comprehensive resource which includes the Foreign Affairs Manual, (FAM), which guides consular officers and is an authoritative source which can be cited, information on visas, U.S. passports, travel warnings, emergency services for U.S. citizens, and URLs for consulates around the world.

http://www.state.gov/

Department of Justice

Executive Office for Immigration Review (EOIR) - Immigration Court.

 Main Web site: http://www.justice.gov/eoir/.

 EOIR Virtual Law Library - http://www.justice.gov/eoir/vll/libindex.html.

 Immigration Judge Benchbook - http://www.justice.gov/eoir/vll/benchbook/.

 Board of Immigration Appeals (BIA) Precedent Decisions -

http://www.justice.gov/eoir/vll/intdec/lib_intdecnet_vol.html.

 Office of the Chief Administrative Hearing Officer (OCAHO) Decision Index – jurisdiction over:

(1) employer sanctions for employment of unauthorized aliens - INA §274A; (2) immigration-related unfair employment practices - INA §274B; and (3) immigration-immigration-related document fraud -

INA §274C. http://www.justice.gov/eoir/OcahoMain/ocahosibpage.htm.

Department of Labor (DOL)

Includes Board of Alien Labor Certification Appeals (BALCA) cases (related to certain

employment-based immigration benefits), wage data, occupational information and forms. http://www.dol.gov/.

 U.S. Department of Labor Law Library - Immigration Collection:

includes statutes, regulations, policies, and general information for aliens and employers, case

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RESOURCES FOR IMMIGRATION LAWYERS

decisions and Immigration Collection: Board of Alien Labor Certification Appeals and Office of

Administrative Law Judges - http://www.oalj.dol.gov/LIBINA.HTM.

Forms

See AILA INFONET and listings for the forms of individual agencies, supra. The URL for each agency includes forms or just Google the form name or number.

Web Resources

The AILA URL provides links to web resources, including the following topics:

http://www.aila.org/content/default.aspx?docid=1180 (available to non-members).

 Legal Research;

 Policy Research;

 Executive Office & Relevant Agencies;

 Government Information;

 Legislative Research;

 Judicial & Administrative Research;

 Human Rights, Civil Rights and Refugees;

 Law and Professional Associations;

 Immigration-Related Organizations; and

 International

Web Sites Providing Immigration Law Developments and News

AILA

http://www.aila.org/.

LexisNexis -- Immigration Law Community

Daily news updates, emerging issues analysis and guest commentaries, podcasts and LexisNexis resources in the field of Immigration Law. Register for excellent daily e-mail updates.

http://www.lexisnexis.com/legalnewsroom/immigration/default.aspx.

Thomson Reuters "Interpreter Releases"

Weekly reports on and analysis of up-to-the-minute information covering all aspects of immigration law. Weekly issues are available on Westlaw® in the INTERREL database; articles are posted to

INTERREL-DAILY daily, Monday through Friday.

http://legalsolutions.thomsonreuters.com/law-products/Newsletter/Interpreter-Releases/p/100029523.

ILW.com

General immigration law news and resources.

http://www.ilw.com.

Immigrant Legal Resource Center (ILRC) General immigration law news and resources.

http://www.ilrc.org/.

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Publications

AILA Publications, supra.

Immigrant Legal Resources Center

Multiple other immigration law publications including

Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws,

http://www.ilrc.org/publications.

LexisNexis Immigration Law eCatalog

Multiple publications including treatises, publications on specialized immigration topics and practice guides:

http://www.lexisnexis.com/store/catalog/catalog.jsp?pageName=catalogProducts&catId=992&id=31. The eCatalog includes:

 Immigration Law & Procedure – 21-volume treatise on Immigration Law published by

LexisNexis:

http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProd ucts&core=&catId=31&parent=&prodId=10420. Available in some law libraries in Oregon.

 Multiple other immigration law publications, see

http://www.lexisnexis.com/store/catalog/catalog.jsp?pageName=catalogProducts&catId=992&id =31.

Thomson Reuters Catalog

Multiple publications including treatises, publications on specialized immigration topics, and practice guides:

http://legalsolutions.thomsonreuters.com/lawproducts/search?q=immigration&r=13001&s=KEYWORDS EARCH&x=0&y=0&FindMethod=Search.

Resource Web Sites – Non-Issue Specific

Legal Action Center (LAC) of the American Immigration Council

(Formerly known as the American Immigration Law Foundation). LAC engages in impact litigation, and appears as amicus curiae before administrative tribunals and federal courts, serve as a point of contact for lawyers conducting or contemplating immigration litigation and provides resources for immigration litigation and policy and publishes practice advisories on immigration law. LAC works with other

immigrants’ rights organizations and immigration attorneys across the United States to promote the just

and fair administration of our immigration laws. http://www.legalactioncenter.org/.

National Immigration Project

Provides legal assistance and technical support to immigrant communities, legal practitioners, and

advocates of the rights of non-citizens. http://www.nationalimmigrationproject.org/.

Catholic Immigration Network (CLINIC)

Provides updates, trainings, and resources for community-based immigration programs. Many

resources are available on-line. http://www.cliniclegal.org/.

ILW.com

General immigration law resources, http://www.ilw.com.

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RESOURCES FOR IMMIGRATION LAWYERS

Immigrant Legal Resource Center (ILRC)

Provides legal trainings, technical assistance to practitioners, educational materials (publications and extensive on-line resources), and advocacy on immigration issues. ILRC has listservs on various areas

of immigration law. http://www.ilrc.org/.

Resource Web Sites – Issue Specific Resources

Asylum

Department of State Report on Human Rights – Country Reports on Human Rights Practices

http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/ and

http://www.state.gov/g/drl/rls/hrrpt/index.htm.

Department of State Report on International Religious Freedom – http://www.state.gov/j/drl/irf/rpt/.

Amnesty International Online – http://www.amnesty.org/.

Asylumlaw.org – www.asylumlaw.org.

Human Rights Watch – http://www.hrw.org/.

Human Rights and Humanitarian Affairs – scales of justice – Directory of search engines and

searchable databases http://www2.etown.edu/vl/humrts.html.

Immigration Advocates Network – network that supports legal advocates working on behalf of

immigrants' rights. http://www.immigrationadvocates.org/.

United Nations High Commissioner for Refugees (UNHCR) – U.N. Refugee Agency

http://www.unhcr.org/cgi-bin/texis/vtx/home. USCIS Asylum Division Training Programs –

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2 a1d1a877b4bc110VgnVCM1000004718190aRCRD&vgnextchannel=f39d3e4d77d73210VgnVCM1 00000082ca60aRCRD.

U.S. Committee for Refugees and Immigrants – http://www.refugees.org/.

World Organization Against Torture – http://www.omct.org/.

Also see country-specific human rights organizations. Criminal

American Immigration Lawyers Association – Oregon Chapter – practice advisories on immigration

consequences of convictions under Oregon criminal statutes. http://www.ailaoregon.com

(membership required).

National Immigration Project – (expanded access for members)

http://www.nationalimmigrationproject.org/publications.htm.

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RESOURCES FOR IMMIGRATION LAWYERS

New York State Defenders Association (NYSDA) Criminal Defense –

http://www.nysda.org/index-3.html.

Law Offices of Norton Tooby – Publications on the immigration consequences of criminal convictions, post-conviction relief, and criminal defense of noncitizens.

http://nortontooby.com/services/criminal_defense and

http://nortontooby.com/services/immigrationattys.

Victims

ASISTA – Resources for advocacy for immigrant survivors of domestic violence and sexual assault.

Listserv available. http://www.asistahelp.org/.

International

Embassies – http://www.embassy.org/.

Foreign Consulates

In the United States – http://www.infoplease.com/ipa/a0004582.html.

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THIS ISSUE

November 2010

Malpractice Prevention Education for Oregon Lawyers

DISCLAIMER

IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued for legal malpractice. The material presented does not establish, report, or create the standard of care for attorneys. The articles do not represent a complete analysis of the topics presented, and readers should conduct their own appropriate research.

Issue 108

On March 31, 2010, the

U.S. Supreme Court issued

Padilla v. Kentucky, 130 S Ct 1473 (2010),

hold-ing that the Sixth Amendment requires defense counsel to advise a noncitizen criminal defendant regarding the immigration consequences of a guilty plea. Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. An advisory opinion that explains Padilla in more detail is available at www.ailaoregon.com.

The defendant in Padilla pled guilty to a drug charge that made his deportation virtually manda-tory under the immigration laws. However, Padil-la’s defense counsel erroneously advised him that he did not have to worry about his immigration status since Padilla had been in the United States for so long. The Court held that under the Consti-tution’s right to competent counsel, counsel must inform their client whether a plea carries a risk of deportation.

The Oregon Constitution requires defense counsel to advise clients who are not U.S. citizens that a criminal conviction “may result” in depor-tation. Gonzalez v. State of Oregon, 340 Or 452, 134 P3d 955 (2006) (citing Lyons v. Pearce, 298 Or 554, 694 P2d 969 (1985)); ORS 135.385(2) (d). However, under Padilla, giving Oregon’s general warning may not be sufficient to meet the federal constitutional standard of “reasonable professional assistance” of counsel. Counsel must be “active, rather than passive, taking the initia-tive to learn about the rules in this area rather than waiting for questions from the defendant.”

Padilla also made it clear that prosecutors

should take immigration consequences into ac-count in plea bargaining, since “informed consid-eration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing

deporta-What Defense Lawyers Need to Know

About Immigration

tion consequences into this process, the defense and prosecution may well be able to reach agree-ments that better satisfy the interests of both par-ties.”

What are some of the immigration conse-quences that noncitizen defendants may face from a criminal disposition? Will they be deportable, without any relief, as an “aggravated felon” (a term that often includes no-jail misdemeanors)? Will they become ineligible to get a green card because the offense makes them inadmissible to the country as a result of a crime involving moral turpitude? If they are deportable or inadmissible, do they have any chance of getting relief (forgive-ness) in immigration court? These are the types of questions that defense counsel must consider.

Defense Counsel’s

Responsibilities

Defense counsel’s duty includes not only in-forming a client of the immigration consequences of a conviction, but also helping the client avoid a potential disaster during the course of repre-sentation. Defense counsel must ask the relevant questions of a client and work to determine the client’s immigration consequences before the cli-ent goes to trial, cli-enters a diversion or drug treat-ment program, handles a charge of violating the terms of probation or of a protection order, admits addiction, or before a sentencing or delinquency hearing. All of these events can have unintended consequences that may affect the client’s immi-gration status. In some cases, the immiimmi-gration consequences of a plea may be far more serious than the criminal consequences.

Padilla does not require counsel to provide

a definitive answer in situations where the law

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may be unclear as to the immigration consequences of a conviction. However, in order for defense counsel to deter-mine whether a client’s potential immigration situation is straightforward or unclear, defense counsel must work with the client to obtain the necessary information, and the proper research must be done.

In addition to the charges, counsel needs to know the de-fendant’s prior criminal history and any mitigating and ag-gravating factors, such as:

●

Immigration Status: Is the defendant a long-time green-card holder? Does the defendant have any documents? A firearm conviction may trigger deportation for a law-ful permanent resident but not a defendant who entered the United States unlawfully. Someone married to a U.S. citizen, or whose parents are in the United States, may have options in immigration court unavailable to others.

●

Criminal History: The implications of a current charge or conviction vary depending on whether the defendant has a prior conviction. A defendant’s prior criminal history will also determine whether he or she can get relief in immigra-tion court.

●

What Deal Is on the Table: Many criminal statutes are “divisible” – one set of elements will cause deportation and the other may not. The immigration consequences may depend on whether counsel can negotiate a plea to a portion of the statute that avoids or minimizes immigration conse-quences. This often requires careful crafting of the factual basis for the plea contained in defendant’s plea statement.

Sample intake forms are available at www. defendingimmigrants.org and www.lojjr.com. Simply con-sulting a list of the grounds of removal cannot address these issues. You must also understand your client’s goals – for example, does the client want to avoid deportation at all costs? Or does the client care more about his or her criminal record?

Resources Available to Lawyers

Criminal defense counsel in Oregon currently have the following resources to help them understand immigration consequences:

●

Education: Numerous resources are available for learning directly how a criminal conviction may affect a defendant’s immigration situation. See, for example, www.defendingimmigrants.org. The defense bar may wish to pursue other options to make this easier in the future, such as the Washington Defender’s Immigration Project in Washington state. See www.defensenet.org/ immigrationproject. Also see the box of additional

re-sources accompanying this article.

●

Consultation with Immigration Counsel: You may want to consider consulting immigration counsel, even from the beginning of a case. Some immigration practitioners in Oregon are well-versed in these issues and can work with defense counsel in determining the immigration consequences of the charges alleged and in identifying alternatives that may avoid removal, or at least give the defendant a possibility to seek relief from removal in immigration court.

●

Client Contact with Immigration Counsel: The defendant or family members can contact an immigration attorney directly. Whenever possible, defense counsel should assist in locating an experienced immigration at-torney and should be sure to follow up with the family or the attorney directly before any criminal proceeding with potential immigration consequences.

Finally, post-conviction counsel should be aware that there are arguments still to be made that the Padilla deci-sion should apply to final convictions and that the case presents an exception to the two-year statute of limita-tions (starting March 31, 2010).

Even though determining the immigration conse-quences of a conviction may be a complex process, and counsel may ultimately discover that the law is unclear, there are resources and attorneys available to help edu-cate defense counsel so that they can provide the best as-sistance possible to their clients.

Julie A. Krull

Attorney At lAw

Joseph Justin rollin

lAw offices of Joseph Justin rollin

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Additional Immigration Resources

●

Immigrant Defense Project (www.immigrantdefenseproject.org): Practice advisories regarding the latest

immigration issues, including the Padilla case; one-page checklist summarizing criminal offenses that might have immigration consequences (“Resources” tab, “Criminal Justice System”).

●

National Immigration Project (www.nationalimmigrationproject.org): Under the “What We Do” menu, select

“Criminal & Deportation Defense”; offers assistance to criminal defense attorneys anywhere in the United States, including advice on a particular case; services are free.

●

American Immigration Lawyers Association (www.ailaoregon.com): Oregon Chapter.

●

Washington Defender Association (www.defensenet.org): Under “Immigration Project” tab; “Immigration

Resources” for Padilla practice advisory; client intake worksheet.

●

Immigrant Legal Resource Center (www.ilrc.org): Training and help with immigration law.

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DISCLAIMER

This newsletter includes claim prevention techniques that are designed to minimize the likelihood of being sued for legal malpractice. The material presented does not establish, report, or create the standard of care for attorneys. The articles do not represent a complete analysis of the topics presented and readers should conduct their own appropriate legal research.

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THIS ISSUE

December 2002 Issue No. 89

IMMIGRATION

CONSEQUENCES OF

CRIMINAL LAW

For non-citizens, the immigration con-sequences of a criminal conviction may be far greater than any punishment of incar-ceration and/or a fine. These conse-quences flow from relatively minor of-fenses and impact non-citizens regardless of economic or social class. For those non-citizens who are convicted of crimes, particularly those given state or federal prison sentences, the INS systematically moves to deport them from the United States, regardless of the length of time in the U.S., family ties in the U.S., or the U.S. government’s diplomatic relations with the person's home country.

Based on a criminal conviction, or even a pre-trial diversion that a state does not define as a "conviction," a client might be subject to deportation or exclu-sion (now called "removal") from the United States, be ineligible for discretion-ary relief (to avoid deportation), and often become permanently unable to lawfully re-turn to the United States. There are thou-sands of non-citizens presently serving federal sentences for the crime of illegal reentry based on the illegal return to the U.S. after deportation for a state, local, or federal conviction.

The following case example demon-strates how these issues can arise, and how such consequences may be avoided.

CASE EXAMPLE

Sue and her former boyfriend, John, have an argument over their 3-year-old child. John drives over to Sue's house and enters the house by breaking a

win-dow. A confrontation ensues, and John shoves Sue into a wall. He then strikes her current boyfriend, who is also at Sue's house. The neighbor calls the po-lice, and John is arrested and charged with two counts of burglary and two counts of assault IV. He hires an attor-ney to defend him and hopes to enter into an arrangement that would allow him to avoid trial. At first glance, the best course of action for John seems to be a plea to one count of assault IV with a sentence of anger counseling, probation, and no jail time. However, John is a non-citizen from Great Britain who first came to the United States as a businessman and then became a lawful permanent resi-dent. The assault IV would be considered by an Immigration Law Judge as a crime of domestic violence, which is grounds for deportation or "removal." The fact that he acknowledged that he had an an-ger problem and was willing to get treat-ment would not change the fact that he would be deportable. Because he has not been lawfully present in the U.S. for long enough, he is not eligible for "cancella-tion of removal," a form of discre"cancella-tionary relief from deportation. However, he might not be subject to deportation if he can plead to only one count of assault IV as to the boyfriend, and is sentenced to a term of imprisonment of less than one year.

As demonstrated by this example, there may be ways to structure the out-come of criminal cases so as to avoid, or at least minimize, the immigration conse-quences.

DETERMINE IMMIGRATION STATUS

In order to avoid an unexpected