Family Based Immigration, Criminal Acts, and the Consequences for Foreign Nationals

Family Based Immigration,

Criminal Acts,

And the

Consequences

For

Foreign Nationals

By

Thomas Esparza, Jr. Attorney at Law*

Jacqueline L. Watson

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Matter of N-C-M-, 25 I&N Dec. 535 (BIA 2011)

Matter of N-C-M-, Respondent

Decided June 10, 2011

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

To be eligible for late initial registration for Temporary Protected Status (“TPS”),
an applicant filing as the “child of an alien currently eligible to be a TPS registrant” must
establish only that he or she qualified as a “child” at the time of the initial registration period,
not at the time the application was filed.

FOR RESPONDENT: Frank P. Sprouls, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Scott A. Eash, Assistant Chief Counsel

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Attorney General and BIA Precedent Decisions

The crime of unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health in violation of section 18-6-401(1)(a) of the Colorado Revised Statutes is categorically a crime of child abuse under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), even though no proof of actual harm or injury to the child is required. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), clarified.

Defense counsel's duty to warn about … everything? 'Padilla' rulingby U.S. Supreme Court extending far beyond deportation cases

Lawyers Weekly USA

November 8, 2010 Monday

HEADLINE: Defense counsel’s duty to warn about … everything? ‘Padilla’
rulingby U.S. Supreme Court extending far beyond deportation cases

BYLINE: Kimberly Atkins

Last term’s U.S. Supreme Court ruling in Padilla v. Kentucky placed a
constitutional duty upon defense attorneys to advise clients if a plea
carries arisk of deportation.

But now, state and federal courts are applying the ruling’s Sixth
Amendment duty to warn to a host of other collateral areas outside the immigration
context.

“One of the biggest questions raised by the Padilla case is, how far does
it go?” said Margaret Colgate Love, a Washington solo practitioner who sits on

the American Bar Association Commission on Effective Criminal Sanctions.

Lower courts are citing the opinion in challenges to plea agreements that
resulted in a number of collateral consequences unforeseen by the defendants
-

including the loss of public housing, ineligibility to vote, adverse
financial consequences, the loss of adoption and child custody rights, the loss of a
driver’s license and even the inability to obtain a professional license in
a regulated field.

The situation has left defense attorneys unsure of just how far their
constitutional obligation to warn their clients goes.

“Collateral consequences have always been a consideration” of defense
attorneys, said Gabriel “Jack” Chin, a professor at the University of
Arizona James E. Rogers College of Law in Tucson, speaking at a recent American Bar
Association-hosted panel on criminal law in Washington. “Padilla may be a
move toward constitutionalizing” the obligations to warn about them.

A project by the ABA’s Uniform Collateral Law Commission to create a
searchable master list of potential collateral consequences of plea
agreements is underway. Now for the bad news: when the project is completed, the total
number of collateral consequences is expected to be as high as 60,000, Chin

said.

For example, in the Adam Walsh Child Protection and Safety Act, there is
a provision prohibiting anyone convicted under the statute from filing a visa
petition on behalf of a family member, spouse or fiancé.

“So Padilla isn’t just about talking to your non-citizen clients,” said
Chicago-based immigration and criminal law solo practitioner Sara Elizabeth
Dill at the ABA event. “It’s about talking to your citizen clients about the
consequences as well. “

That means defense lawyers who have been negotiating plea deals for
decades may suddenly find themselves in need of a crash course in all the bad things
that could happen to their clients should they plead guilty to an offense.

“You have to go back to school” to become aware of all of them, Love
said.

Collateral damage

In his opinion in Padilla, Justice John Paul Stevens did not close the
door to extending the constitutional requirement to collateral consequences
beyond the deportation context.

“We … have never applied a distinction between direct and collateral
consequences to define the scope of constitutionally ‘reasonable
professional assistance’ required” under Strickland v. Washington, Stevens wrote.
“Whether that distinction is appropriate is a question we need not consider in this
case because of the unique nature of deportation. “

Although Justice Samuel Alito concurred in the judgment, he warned that
expanding the holding outside the deportation context would be a “dramatic
expansion of the scope of criminal defense counsel’s duties” that could lead
to ”a major upheaval in Sixth Amendment law. “

Lower courts, noting that the Supreme Court did not distinguish between

direct and collateral consequences in the Sixth Amendment context in

Padilla, seem to be erring on the side of expanding the right.

In September, the 11th Circuit cited Padilla in its per curiam decision
in Bauder v. Department of Corrections State of Florida, affirming a district
court ruling that allowed a defendant to take back a plea that was based on his
attorney’s incorrect advice about the possibility of being civilly
committed.

Love pointed out that tossing out a plea deal based on defense counsel’s
bad advice is by no means something new. What is new, she said, is that the
circuits are starting to turn to Padilla as the basis for doing so.

“The Bauder case, to be sure, was not a revolution,” Love said. “It isn’t
particularly new except that the Court of Appeals cited Padilla. [So] you
get the sense that Padilla is going to get a workout. “

State courts are following suit as well. For example, in June the
Superior Court of Pennsylvania cited Padilla in Commonwealth of Pennsylvania v.
Abraham, ruling that an attorney failed to give effective assistance when he failed
to warn a client that a plea deal would result in the loss of his pension
benefits under the Public Employee Pension Forfeiture Act.

“Viewed in the light of Padilla, the loss of the pension is automatic and
inevitable, the stakes are high and the consequences are succinct, clear and
distinct,” the court said. “Because of the automatic nature of forfeiture,
the punitive nature of the consequence, and the fact that only criminal behavior
triggers forfeiture, the application of [the Act] is, like deportation,
intimately connected to the criminal process. “

Putting it in writing

Prosecutors, also noting the expansion of Padilla’s application, are
taking matters into their own hands to make sure the plea deals they strike have

staying power, no matter what a defense attorney’s advice is.

“Collateral consequences are going to be a bigger part of the
conversation when a party engages in plea discussions,” Assistant U.S. Attorney Robert
Okun said at the ABA panel.

After Padilla, Okun said, prosecutors began putting express language in

plea agreements, such as “I understand that if I plead guilty there will be
immigration consequences” or “I understand that I will be required to

register as a sex offender. “

As for defense attorneys, until a searchable database of collateral
consequences is completed, they will have to search for possible
consequences of a guilty plea on their own – and that task is not always easy.

In the immigration context, at least, “there are a lot of resources”
provided by immigration law organizations, Love said. But when it comes to other
types of clients, resources may be tougher to come by.

“There are no advocacy groups for sex offenders,” Love said.

Matter of CHAWATHE, 25 I&N Dec. 369 (AAO 2010)

<<(1) For purposes of establishing the requisite continuous residence in naturalization proceedings pursuant to section 316(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427(b) (2006), a publicly held corporation may be deemed an “American firm or corporation” if the applicant establishes that the corporation is both incorporated

in the United States and trades its stock exclusively on U.S. stock exchange markets.

(2) When an applicant’s employer is a publicly held corporation that is incorporated in the United States and trades its stock exclusively on U.S. stock markets, the applicant need not demonstrate the nationality of the corporation by establishing the nationality of those
persons who own more than 51% of the stock of that firm. Matter of Warrach, 17 I&N Dec. 285, 286-87 (Reg. Comm’r 1979), clarified.

(3) In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought.

(4) Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant has satisfied the standard of proof.
Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989), followed.

(5) If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition.

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