Emily Datnoff
Maryland Immigrant Rights Coalition
OSI-Baltimore Community Fellow
Maryland Office of the Public Defender
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Help you fulfill your professional responsibility
under Padilla v. Ky.
Help you understand important factors in
determining immigration consequences for an
individual client.
Give you some tools and resources to do so.
 NOT to turn you into an immigration attorney
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Help you identify some strategies for avoiding or
minimizing harsh immigration consequences.
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599 U.S. ____ (March 31, 2010)
Mr. Padilla
◦ Lawful permanent resident of the US for 40+ years
◦ Pled to possession with intent to distribute
marijuana
◦ after his defense counsel advised him he
“did not have to worry about immigration status
because he had been in the country so long.”
◦ Promptly put into deportation proceedings as an
“aggravated felon” (drug trafficking).
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Sixth Amendment guarantee of effective
assistance of counsel requires defense
counsel to advise about immigration
consequences.
◦ Silence is not an option
◦ Failure to advise satisfies the first prong of Strickland’s
ineffective assistance test
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The Maryland Court of Appeals in Denisyuk v.
State held that Padilla applies retroactively to
all pleas entered after the effective date of
the enactment of the Illegal Immigrant
Reform and Responsibility Act of 1996.
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Missouri v. Frye (Mar. 21, 2012) held that the Sixth
Amendment guarantee of effective assistance of
counsel requires defense counsel to “communicate
formal offers from the prosecution to accept a plea
on terms and conditions that my be favorable to the
accused.”
In Lafler v. Anthony (Mar. 21, 2012) the parties
agreed that defense counsel was ineffective when he
advised the client “to reject the plea offer on the
grounds that he could not be convicted at trial.”
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When States offers a plea, defense counsel
should know the immigration consequences
of the criminal charges to competently advise
clients to
◦ (1) reject offer;
◦ (2) accept offer; or
◦ (3) proceed to trial.
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Note – Lafler states that a strategic decision
to proceed to trial is not necessarily deficient
performance
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consequences are so severe
◦ can be a “life sentence” for shoplifting with suspended
sentence
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penalties are automatic and inflexible
 Deportation, disqualification from green card or
citizenship, criminal penalties for reentry
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In Immigration Court, it’s too late!
Criminal defense counsel is the only one
in a position to make a difference.
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Depends on the individual’s circumstances
Some convictions and/or sentences are
worse than others
Creative strategizing CAN minimize adverse
consequences
• To provide effective assistance of counsel, you must
help your client avoid adverse immigration
consequences and find a safe(r) plea.
• The only way to do that is to obtain the necessary
information to assess the immigration consequences.
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immigration status
prior criminal history
potential eligibility for immigration relief
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(1)
(2)
(3)
(4)
(5)
Spouse? USC or LPR?
Children? USC or LPR?
Parents? USC or LPR?
When did you enter the U.S.?
Do you fear returning to your country
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Two clients arrested in an allegedly stolen car
with a firearm and a small amount of
marijuana.
Charged with:
◦ Theft of a motor vehicle, Md Crim 7-105
◦ Possession of marijuana, Md Crim 5-601(a)(1)
◦ Carrying handgun w/o permit, Md Crim 4-203
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What is a safe plea for them?
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THERE’S NO WAY TO KNOW, because
you don’t have enough information.
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For a non-citizen client, you must know:
◦ immigration status
◦ prior criminal history
◦ potential eligibility for immigration relief
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(1)
(2)
(3)
(4)
(5)
Spouse? USC or LPR?
Children? USC or LPR?
Parents? USC or LPR?
When did you enter the U.S.?
Do you fear returning to your country?
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A conviction from any court – no matter if it’s
appealable – subjects the client to
deportation proceedings.
Identify the noncitizen defendant at intake
and obtain the necessary information for an
immigration referral.
Submit the referral at least two weeks before
the trial date.
Inadmissibility
(for those applying for LPR or reentry)
v.
Deportability
(for those with status, esp. LPR)
v.
Ineligibility for citizenship
(disqualified from showing good moral character)
See Immigrant Defense Project’s Summary Checklist
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Mandatory detention during removal
proceedings
Criminal penalties for reentry after
deportation
◦ Up to 20 years for “aggravated felon”
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Bars to reentry – permanent banishment for
“aggravated felons”
Even for undocumented clients
Ask EVERYONE where they were born.
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Explain why you are asking, e.g., “convictions
directly affect immigration status”
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Look at and copy the documents.
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I-94 card or approval notice
I-551 (“green” card)
Stamp in passport
Work permit is not conclusive
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Citizen
LPR, lawful permanent resident
Temporary non-immigrant
◦ visitors, students, some workers, circus performers
Asylees and refugees
Temporary protected status (TPS)
NACARA eligible (Central Americans)
Applicants for status
Undocumented (Entered Without Inspection)
Overstay (40% of those here illegally)
With final order of removal
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S visa – “snitch” visa
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T visa – victim of trafficking
◦ Prostitution, other charges
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U visa – victim of certain (violent) crimes
◦ Often used in domestic violence cases
◦ Always ask State’s Atty if the victim is pursuing a U
visa – good evidence of bias!
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Get and review your client’s rap sheet.
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Very important because it can affect both
◦ The consequences of a conviction and
◦ Eligibility for possible immigration relief
Your client is a non-citizen. She is accused of
shoplifting an expensive sweater and is charged
with theft under $1000.
Can she plead to § 7-104?
◦ Theft with a sentence of 1 yr or more = aggravated
felony
◦ Theft is a Crime Involving Moral Turpitude (CIMT)
◦ Your client has a Green Card (LPR)
 If the sentence is > 1 yr, she’s a GONER!
 If she has been in the U.S. for more than 5 years, she will
NOT be subject to deportation if:
 the sentence < 1 yr, unless she has a prior CIMT (prior theft)
 If she has been in the U.S. for less than 5 years, she will be
subject to deportation regardless of the length of the
sentence.
 If she plans on traveling outside the U.S., she will be subject
to deportation upon her return regardless of the length of the
sentence. But, she may be eligible for a waiver.
◦ Your client is applying for a Green card.
 Your client will be DENIED, because theft is a CIMT!
 But, your client may be eligible for a waiver to waive the
ground of inadmissibility based on the CIMT.
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Avoid deportability
◦ LPR’s (green card holder)
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Avoid inadmissibility
◦ Applying for immigration relief
◦ LPR’s who may travel outside US
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Avoid disqualification from good moral character
◦ LPR’s applying for citizenship
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Words sometimes have surprising meanings
in Immigration Land.
Immigration law treats convictions in a very
formalistic way.
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INA §101(a)(48)(A) [8 USC §1101(a)(48)(A)]
IDP Summary Checklist
EITHER:
 A formal judgment of guilt or…
(1) An admission or finding of guilt or facts that
would warrant finding of guilt
AND
(2) the imposition of some punishment, penalty
or restraint on liberty
 Including probation or a fine.
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No Conviction
Stet
Conditional stet
Juvenile
Vacated conviction
Acquittal
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Conviction
PBJ – probation before
judgment
Guilty/nolo plea
Not criminally
responsible (NCR)
Juvenile in adult court
PBJ is a conviction for
immigration.
A “term of imprisonment” includes the
incarceration ordered by the court
regardless of any suspension
1 year suspended = 1 year served
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Avoid a conviction, if possible.
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Avoid a conviction with the particular
consequences your client needs to avoid.
◦ What are the likely effects of the proposed plea?
 Take client’s criminal history into account
◦ Is there a better alternative plea?
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Would negotiating the sentence or other
factors help? Consecutive vs. concurrent
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Aggravated Felonies
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Controlled Substance Offenses
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Crimes Involving Moral Turpitude
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Crimes of Domestic Violence
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Firearm Offenses
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May be neither a felony nor aggravated
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Most draconian consequences:
◦ Disqualified from almost everything forever
◦ Mandatory detention
◦ Administrative removal
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Listed by statute at 8 USC 1101(a)(43).
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Some subsections have “triggers” which can
be avoided; some do not
◦ Actual or maximum sentences
◦ Amount of loss to victim
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Includes attempts and conspiracy to commit
any aggravated felony
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Include:
◦ Drug trafficking
 Anything with even the intent to distribute
 REGARDLESS of sentence
 Does NOT include possession (IDP checklist)
◦ Crimes of violence (w/ sentence of 365 days)
 May include 2nd degree assault
◦ Theft and burglary offenses (w/ 365 day sentence)
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Also include:
◦ Offenses involving fraud and deceit (w/ more than
$10,000 in loss to the victims)
◦ Forgery, counterfeiting
◦ Alien smuggling
◦ FTA on felony charge with 2 year potential sentence
◦ etc, etc.
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An Aggravated Felony “crime of violence” is
defined by 18 U.S.C. § 16, and requires the
intentional use of physical force against the
person or property of another
An offense involving elements of recklessness
or negligence, without specific intent, is not a
crime of violence, and thus not an Agg Fel
Avoid specific intent crime = avoid Agg fel
Crime is malum in se, inherently base or vile
 Often turns on intent
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Mens rea can include recklessness
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Law is currently very muddled, but court can
look at the actual facts of the conviction
Includes attempts or conspiracy to commit any
CIMT
 May also be an aggravated felony
 Exception for first offense petty offense
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Any crime “relating to a controlled
substance”
◦ Very broad – includes paraphernalia
Exception for clients with immigration status:
simple possession of 30 grams or less of marijuana
May also be an aggravated felony and CIMT if more
than simple possession.
Addiction itself – even without a conviction – can
have consequences
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“Crime of violence” against a member of
family and/or household entitled to
protection
Simple assault and battery are not “crimes of
violence”
Also deportable offenses:
Violation of protective order
Child abuse, neglect, abandonment
Stalking
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Just about any offense involving a firearm in
any way
◦ Leads to removability
◦ Does NOT result in inadmissibility
 (may be a better plea for someone who will be
applying for a green card because it preserves that
possibility)
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If your client has TPS or is eligible for TPS, then traffic
crimes matter!
◦ Any two misdemeanors make a client ineligible for TPS –
DWOL, Driving on Suspended, DUI, etc.
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A DUI (impaired by controlled substance) is a
controlled substance offense, a deportable offense.
A conviction for Driving on Suspended while
committing a DUI is a crime involving moral
turpitude.
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Generally, the client should not plead to the
facts as stated in the statement of charges!!!
WHY???
◦ Because with certain convictions, the Immigration
Judge can review the “record of conviction” to
determine whether the crime is an aggravated
felony or CIMT.
 E.g., 2d Assault, theft, fraud crimes, carrying a
dangerous weapon, and many more
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Record of Conviction
includes:
◦ Statutory definition of
the crime
◦ Statement of Charges
◦ Jury instructions (if trial)
◦ Plea agreement
◦ Admissions at colloquies
◦ Any facts found by
judge to which D agrees
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Record of Conviction
does not include:
◦ Presentence report
◦ Statement of Probable
Cause (that has not been
incorporated into SOC)
◦ Police Reports
◦ Prosecutor statements
◦ Dropped charges
◦ Trial testimony
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The art of negotiation:
◦ Why should a states atty do something special for
your client just because s/he’s not a citizen?
 Get to know your client
 Emphasize the equities of the case
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Avoid a conviction:
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Get a conditional stet,
Agreement to dismiss with community service,
Keep your young client in juvenile court,
Continue case until client pays restitution, etc.
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Waive credit for time served
Agree to serving actual time rather than
suspending it
Stack consecutive sentences to various
charges to avoid any one sentence ≥ 1 year
Agree to a longer period of probation and
shorter incarceration
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Ask for postponement
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Pray a Jury Trial
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Dismissal of de novo appeals – DO NOT let
the judge dismiss the appeal for FTA because
the client was in DHS custody. State v. Stone,
344 Md. 97, 106 (1996) (error to dismiss a
criminal defendant’s appeal from the District
Court to the Circuit Court “when the trial
court has information that the appellant’s
failure to appear was neither willful nor
voluntary.”)
Remind the State that they have the burden of
bringing the client to trial.
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OPD Immigration Support email address
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Lisa Marquardt of Collateral Review Division
◦ lmarquardt@opd.state.md.us
◦ 410-767-4194
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Emily Datnoff
◦ edatnoff@opd.state.md.us
◦ 410-767-9854