DELAWARE IMMIGRATION LAWYER BLOG

Supreme Court holds that criminal defense counsel has a Sixth Amendment obligation to inform a defendant about immigration consequences or to advise when  consequences are clear.

http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years.  His criminal defense lawyer advised him on the guilty plea which made Mr. Padilla subject to mandatory deportation from the United States.  The state of Kentucky’s position was that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence.  The Supreme Court  reversed the Kentucky court’s decision and rejected the federal government’s position that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea.

“These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”

Certain firearm offenses will result in deportation. INA Section 237(a)(2)(C) states that “any alien who at any time after admission is convicted under law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device in violation of any law is deportable.” Moreover, firearm offense may be considered as a crime with morial turpitude if an element of charge involving the use of a firearm, which then may lead to inadmission.

Person applying for citizenship must show good moral character for 5 years (or for a spouse of a United States citizen, 3 years, or for person in the military, 1 year) prior to filing and up to the time of admission. For example, a person convicted of a crime of moral turpitude, multiple crimes or a drug crime is not eligible for naturalization.

It is important to note that a person must be denied citizenship not only if he is convicted, but if he admits facts that constitute certain crimes. 8 C.F.R. Section 316.10(b)(2)(iv). Expunged records are still relevant to a Good Moral Character determination.

People with criminal records should always consult an immigration attorney before filing the citizenship application.

Aliens who are unlawfully present and voluntarily departed the United States may face the three-year, ten- year and permanent bar when seeking readmission. However, being in an unlawful immigration status does not necessarily accrue unlawful presence.

There are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. For example, minors who are under 18 years of age, aliens with pending asylum applications, certain battered spouses, parents and children, nonimmigrants with pending requests for extension of status or change of status, and etc, will not accrue unlawful presence.

The old LCA (Labor Condition Application) system was taken down by DOL on Tuesday June 30, 2009. Begining on July 1, 2009 users must use the new ICert system at http://icert.doleta.gov to file LCAs.

Permanent residents of the United States have to realize the serious immigration consequence of criminal activity.

Criminal activity often is defined as violation of federal, state or foreign criminal law. Among them, crimes involving moral turpitude, aggravated felonies and certain criminal conduct precludes a finding of good moral character would most likely affect a permanent resident’s immigration status, including inadmissibility, deportability and eligibility for naturalization.

Crimes involving moral turpitude are defined by judicial and administrative case law. In general, if a crime manifests an element of baseness, such as murder, rape, and fraud, it involves moral turpitude.

Aggravated felonies are defined by INA Section 101(a)(43). Many specific crimes are listed as aggravated felonies under INA, such as murder, rape, sexual abuse of a minor, illicit trafficking in a controlled substance, a theft, burglary or possession of stolen property offense where the terms of imprisonment imposed is at least one year, kidnapping offenses, child pornography, et al.

Criminal conduct precludes a finding of good moral character are listed under INA §101(f), including but not limited to prostitution, having an income principally derived from illegal gambling activities, gives false information in attempting to receive a benefit under the INA, and et al. It matters because possession of good moral character is a statutory requirement for naturalization.

In certain circumstances, grounds for inadmissibility or deportability may be waived. For permanent resident who has not convicted for an aggravated felony, cancellation of removal is available if certain requirements are met.

Permanent resident with criminal records should always consult an immigration attorney prior to filing a naturalization application or even filing an application to replace the green card.

Spanish and Chinese translations of the 100 Civics questions for the new test have been posted. Click here for the link to the New Test Information Page

Immigration Law Resource Center (http://www.ilrc.org/) designed a Know Your Right Card and I think it is a great idea. You can right click the picture, save it to you computer and print it out.

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