Practice Advisory: Multiple Drug Possession Cases after Carachuri-Rosendo v. Holder (June 21, 2010) (84K PDF). This practice advisory describes the Supreme Court decision in Carachuri-Rosendo v. Holder in which the Court unanimously rejected the government’s overreaching application of the "drug trafficking" aggravated felony mandatory deportation ground to individuals with more than one low-level simple possession drug offense. The advisory addresses what the Carachuri decision means both for noncitizens with a second or subsequent conviction where the record of conviction contains no finding of a prior conviction, and those with cases where the record of conviction does contain some finding a prior conviction.
Practice Advisory: Sampe Carachuri-Rosendo Motions (June 21, 2010) (986K PDF). This practice advisory, prepared by the National Immigration Project, provides sample motions for individuals who may now be eligible for relief from removal or another immigration benefit under the Supreme Court's decision in Carachuri-Rosendo v. Holder.
Practice Advisory: Government Retreats from Matter of Saysana's Interpretation of Mandatory Detention Statute (May 2010) (5 Megabyte PDF). This practice advisory, put together by the NYU Law School Immigrant Rights Clinic, is intended for immigration attorneys who currently have, or who may have in the future, clients detained under the Board of Immigration Appeals' interpretation of the mandatory detention law in Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), which held that mandatory detention is triggered by release from any criminal custody after October 8, 1998 even if that criminal custody relates to non-deportable offenses or arrests that result in no conviction at all. Specifically, this advisory addresses the government's recent retreat from the reasoning in that decision.
Practice Advisory: Duty of Criminal Defense Counsel Representing an Immigrant Defendant after Padilla v. Kentucky (April 9, 2010) (237K PDF). This practice advisory, prepared by the IDP for the Defending Immigrants Partnership, provides initial guidance on the duty of criminal defense counsel representing an immigrant defendant after the Supreme Court's Sixth Amendment right to counsel decision in Padilla v. Kentucky (U.S. March 31, 2010). In this decision, the Court held that, in light of the severity of deportation and the reality that immigration consequences of criminal convictions are inextricably linked to the criminal proceedings, the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.
Advisory for Haitian National Considering Applying for TPS: Past Criminal Dispositions/Conduct Could Bar TPS Eligibility and Lead to Detention and Deportation (January 20, 2010) (166K PDF). After the January 12, 2010 earthquake in Haiti, the U.S. government designated Haiti as a country experiencing “extraordinary and temporary conditions” that prevent its nationals from returning to the country safely. As a result, Haitian nationals may apply for what is called Temporary Protected Status (TPS) in order to avoid removal from the United States and to obtain employment authorization. However, Haitian nationals who have ever been arrested for a crime should know that past criminal dispositions may make them ineligible for TPS (and that future criminal dispositions may make them ineligible for re-registering for such benefits later). In addition, those who may be ineligible under these criminal bars should know that applying for TPS status may lead not only to a denial of TPS status, but to possible immigration detention and deportation. This advisory provides information about the types of past criminal dispositions or conduct that could lead to a finding of ineligibility for TPS.
Practice Advisory: Recent Developments in the Categorical Approach: Tips for Criminal Defense Lawyers Representing Immigrant Clients (October 9, 2009) (416K PDF) This advisory for criminal defense attorneys, prepared by IDP and the Neighborhood Defender Service of Harlem, gives a brief overview of new developments in the "categorical approach" that immigration courts use to determine the immigration effects of a conviction and offers concrete practice tips for defense counsel in light of these changes.
Practice Advisory: The Impact of Nijhawan v. Holder on Application of the Categorical Approach to Aggravated Felony Determinations (June 2009) (237K PDF). Using the approach that sometimes some good can come of a bad decision, this advisory reviews the specific holding in the Supreme Court’s June 2009 decision in Nijhawan v. Holder, No. 08-495, 2009 WL 1650187 (U.S. June 15, 2009), analyzes the decision’s impact on application of the categorical approach to aggravated felony determinations generally, and provides specific suggestions on how Nijhawan may be used affirmatively to overcome unfavorable case law in certain jurisdictions on certain aggravated felony issues, including the reach of the sexual abuse of a minor and drug trafficking grounds. The advisory also attaches an Appendix Chart summarizing the impact of the Nijhawan decision on the analytical approach to be applied to each of the various aggravated felony grounds.
New Advisory on "Conviction Finality Requirement: The Impact of Matter of Cardenas-Abreu" (May 11, 2009) (175K PDF)
New Advisory on Challenging Aggravated Felony Drug Trafficking Charges
The following items are from the Immigration Practice Tips section of the Public Defense Backup Center REPORT. They are available in PDF format and can be viewed with the Adobe Acrobat reader.
Jan-Feb 2008 (65K PDF)
- Board of Immigration Appeals Issues Two Decisions That Leave Unclear Whether a New York Immigrant Convicted of More Than One Simple Possession Drug Offense Will Be Deemed Subject to Mandatory Deportation as a "Drug Trafficking" Aggravated Felon
Aug-Sept 2007 (67K PDF)
- Board of Immigration Appeals Holds that a Conviction under the First Subsection of the New York Misdemeanor Assault Statute is a Conviction of a Crime Involving Moral Turpitude
- In a Recent Unpublished Decision, the Board of Immigration Appeals Considers Whether a New York State 2nd Degree Harassment Conviction May Constitute a Charge of Deportability as a "Crime of Domestic Violence"
- New York State Legislature Passes and Governor Spitzer Signs Legislation that Authorizes Early Release for Deportation for Noncitizen Inmates Sentenced or Resentenced to Definite Terms of Imprisonment
- NYSDA Publishes and Begins Distribution of Updated and Supplemented Fourth Edition of IDP Immigrant Defense Manual
Nov-Dec 2006 (72K PDF)
- Criminal Defense of Immigrants in State Drug Cases—The Impact of Gonzalez v Lopez
June-July 2006 (115K PDF)
- US Supreme Court Grants Cert on Whether a State Drug Possession Offense Constitutes a "Drug Trafficking" "Aggravated Felony"
- 2nd Circuit Finds NY First-Degree Manslaughter is a Crime of Violence
- IDP Launches New Website
Jan-March 2006 (13K PDF)
Senate Considers Legislation Severely Impacting the Rights of Undocumented Immigrants and Immigrants With Criminal Dispositions- House of Representatives Passes Bill That Would Severely Impact on Rights of Immigrants Who Are Undocumented or Have Criminal Records
- 2nd Circuit Rules NY Felony Reckless Assault Is a "Crime Involving Moral Turpitude," But Attempt is Not
- 2nd Circuit Leaves Open Question of Whether 2nd Drug Possession Offense Constitutes "Aggravated Felony"
- US Supreme Court Rules That State DWI Offenses That Require Mere Accidental or Negligent Conduct Are Not "Crimes of Violence" for Immigration Purposes
- "Operation Predator" Targets Noncitizen Residents Convicted of Sex-Related Offenses—How to Defend Against Charges to Minimize Immigration Consequences
- New Regulations Issued on "212(c)" Waivers of Deportation for LPRs With Convictions Pre-April 1, 1997; Nunc Pro Tunc Relief Granted for Immigrants Improperly Denied 212(c) Relief Before Having Served Five Years for an Aggravated Felony
- DMV Policy Continues to Result in Criminal Charges Lodged Against Noncitizens
- Continuation of the National Defending Immigrants Partnership
- Updated Removal Checklist in Criminal Charge Cases Available on NYSDA Website
- DMV Policy Results in Criminal Charges Lodged Against Noncitizens—How to Defend Against Charges to Minimize Immigration Consequences
- 2nd Circuit Holds That an Individual With a pre-1996 Trial Conviction May Be Able to Pursue Waiver of Deportation Existing Under pre-1996 Law
- Updated Removal Defense Checklist in Criminal Charge Cases Available
- Counsel's Incorrect Advice About Deportation Issues May Allow Noncitizen Defendants to Seek Vacaturs of Guilty Pleas
- BIA Issues Decision That Increases Likelihood Certain NY Crimes Will Be Deemed a "Crime of Violence" for Immigration Purposes
- Cert Granted on DWI With Bodily Injury as "Crime of Violence"
October-November-December 2003
- Updated and Supplemented 3rd Edition of Manual on Representing Noncitizen Defendants Now Available
- 2nd Circuit Limits Use of Information in Pre-Sentence Reports in Deportation Proceedings
- Defender Organizations Develop In-House Immigration Expertise
- New Immigration Resources Available
- State Court of Appeals Hears Argument in Two Cases Where Noncitizen Defendants Sought Vacatur of Their Guilty Pleas Based on Incorrect [Advice] Regarding Deportation
- Practical Tips to Avoid Aggravated Felonies
- US Supreme Court Finds Mandatory Detention of Deportable Immigrants With Criminal Convictions Constitutional During Immigration Proceedings
- 2nd Circuit Issues Favorable Decisions That Reduce the Likelihood That Certain NY Crimes Will Be Deemed a "Crime of Violence"
- 2nd Circuit Upholds Dismissal of Illegal Reentry After Deportation Charge Based on a Finding of Fundamental Unfairness of the Prior Deportation Proceedings
- New York City Exempts Police Officers From New Immigrant Status Confidentiality Policy
- IDP Pro Bono Counsel Meade Recognized by NYSBA for Work on Behalf of Immigrants
- 2nd Circuit Says More Drug Offenses May Be Deemed "Aggravated Felonies" for Illegal Reentry Sentence Enhancement Purposes
- 2nd Circuit Issues Unfavorable Rulings on Retroactive Application of Bar on Relief From Deportation to Pre-1996 Trial Convictions
- IDP Alert Prepared for Noncitizens Subject to Special Registration Who Have Arrests or Convictions
- Draft Patriot II Act Would Further Limit Longtime LPR's Ability to Avoid Deportation Based on Past Criminal Convictions
- Through DIP, New Jersey Defense Lawyers and New York Public Defense In-House Experts Receive IDP Help
- Updated IDP Resource Materials Posted on NYSDA's Website
- BIA Now Holds That ANY State Drug Felony Will Result in Mandatory Deportation for ALL Classes of Immigrants. Some Long-term Lawful Permanent Residents Convicted of NY Misdemeanor Drug Possession May Still Apply for Discretionary Relief From Deportation
- 2nd Circuit Clarifies Standards for Temporary Stays in Immigration Appeals
- 2nd Circuit Holds That Attorney's Affirmative Misrepresentation of Deportation Consequences of Guilty Plea Rendered Counsel Ineffective and Plea Invalid
- National Defending Immigrants Partnership Launched
- Updated Removal Defense Checklist in Criminal Charge Cases Available on NYSDA Website
- Immigrant Defense Project Moves to the Battery Park Area in Lower Manhattan
- 2nd Circuit Says Lawful Permanent Residents (LPRs) Convicted of Aggravated Felony Can't Apply for Family Hardship Discretionary Waiver of Deportation
- NYSDA Submits Two Amicus Curiae Briefs in 2nd Circuit Cases Raising Issues Involving Interplay Between Criminal and Immigration Law
- NY Manslaughter 2nd Should Not Be a "Crime of Violence" for Aggravated Felony Purposes
- Supreme Court's Invalidation of the Government's Retroactive Application of a 1996 Mandatory Deportation Provision Should Apply to Immigrants Convicted After Trial as Well as Those Convicted by Guilty Plea
- Updated Removal Defense Checklist in Criminal Charge Cases Available
- Any State Drug Felony May Now Be Deemed an Aggravated Felony for Immigration Purposes
- Post-September 11 Law Enforcement Targeting of Immigrants Continues
- Immigrant Defense Project Adds Two New Staff Members
- Federal Courts Issue Decisions Favorable to Immigrants in INS Detention and/or Removal Proceedings Based on Criminal Charges
- Help From the Immigrant Defense Project
- Pro Bono Referral in Selected Cases
- Removal Defense Checklist in Criminal Charge Cases Updated
- Legal Resource Materials Training, and Backup Center Support for Those Representing Noncitizens Detained After Sept. 11
- New Immigration Law Resource for Criminal Lawyers Published by ABA
- US Enacts New Regulation and Legislation Expanding INS Authority to Detain Noncitizens After 9/11
- 2nd Circuit Holds DWI Offense Not a "Crime of Violence" Constituting an Aggravated Felony for Immigration Purposes
- US Sentencing Commission Reduces for Some the Sentence Enhancement Applied to Those Convicted of Unlawfully Entering the US After Being Deported Following Conviction of an Aggravated Felony
- NYSDA's Immigrant Defense Project to Provide Legal Support to Immigrants Placed in Removal Proceedings Based on Criminal Charges
- Updated Removal Checklist in Criminal Charge Cases Available on NYSDA Web Site
- Training Continues
- US Supreme Court Affirms 2nd Circuit Decision Striking Down Retroactive Application of 1996 Repeal of Waiver of Deportation for Certain Immigrants
- US Supreme Court Holds That Government May Not Indefinitely Detain Deportable Immigrants Who Cannot Be Returned to Their Countries of Origin
- Supreme Court Holds Constitutionality of Law Allowing Citizen Mothers but Not Citizen Fathers to Confer Citizenship on Child Born Outside the US
- BIA Holds Multiple Convictions for Simple DUI Do Not Aggregate into a Crime Involving Moral Turpitude
- BIA Says Misdemeanor Sexual Abuse of a Minor Not Necessarily an Aggravated Felony
- 2nd Circuit Holds Offense Involving Mere Possession of Counterfeit Securities Not Necessarily an Attempt to Commit Offense Involving Fraud or Deceit, an Aggravated Felony
- California Finds Wrong Advice About Immigration Consequences of a Guilty Plea is IAC
- US Supreme Court to Hear Appeal of Decision Striking Down Retroactive Application of the 1996 Repeal of a Waiver of Deportation for Certain Lawful Permanent Resident Immigrants
- BIA Refuses to Reconsider Holding That NY YO Dispositions Are Not Convictions
- 2nd Circuit Refuses to Rehear Decision Holding a Misdemeanor May Be Deemed an "Aggravated Felony" for Illegal Reentry Sentencing Purposes
- 106th Congress Adjourned Without Passing Legislation to Repeal Any of the Retroactive Provisions of the Harsh 1996 Immigration Laws Immigration Cases
- Federal Court Authorizes Appointment of CJA Counsel in Federal Habeas Proceedings for Noncitizen Petitioner Challenging Removal Order
- New York County Supreme Court Grants Resentencing to Avoid Deportation INS Releases Memo Authorizing the Exercise of Favorable Prosecutorial Discretion in Low Priority Immigration Cases
- 2nd Department Again Dismisses an Appeal Because an Immigration Defendant Was Deported
- Supreme Court to Review Challenges to INS Indefinite Detention
- INS Using NY Felony DWI-Related Offenses as Aggravated Felonies for Deportation Purposes
- New Federal Law Will Expand Grants of Automatic Citizenship to Certain Foreign-Born Children of U.S. Citizens
- BIA Holds NY Youthful Offender Dispositions Not Convictions for Immigration Purposes
- 2nd Circuit Holds that AEDPA and IIRIRA Restrictions on Relief from Deportation Are Not Applicable to Individuals Who Pled Guilty Before Those Laws Passed
- 2nd Circuit Holds That a Misdemeanor Can Be an Aggravated Felony
- Other Defense-Relevant BIA and Second Circuit Immigration and Nationality Decisions
- News on What May Be Deemed Convictions for Immigration Purposes
- Recent Developments on Retroactivity of Harsh 1996 Immigration Amendments DOJ Proposed Regulations Follow Court Decisions That Found AEDPA Restrictions on Relief from Deportation Not Applicable to Some Cases Pending in 1996
- Federal Judges Rule That AEDPA and IIRIRA Restrictions on Relief From Deportation Are Not Applicable to Cases Not Yet Pending in 1996 but Involving Pre-1996 Criminal Conduct or Convictions
- 2nd Circuit Finds Noncitizen Deportable for Pre-1988 Aggravated Felony Conviction
- Parole Division Issues New Guidelines for Conditional Parole for Deportation
- NYSDA Files Another Amicus Brief Challenging Retroactive Application of New Immigration Laws
- Immigration Manual for New York Defense Lawyers Has Now Been Updated
- BIA Holds that DWI While License Suspended or Revoked is a Crime Involving Moral Turpitude, but Simple DWI Is Not
- Two Federal Courts in New York Reduce Sentences of One Year and One Day to Less than One Year in Order to Avoid Deportation of Noncitizen Defendants
- INS Deportation of Noncitizens with Criminal Convictions Up 12 Percent in 1999
- ABA Publishes New Standards Requiring Defense Counsel and Judges to Advise Defendants Pleading Guilty regarding Collateral Consequences such as Deportation
- BIA Holds TX Felony DWI is an Aggravated Felony, Triggering Mandatory Deportation
- BIA Holds NY Youthful Offender Adjudication is a Conviction for Deportation Purposes
- US Court in Brooklyn Rules AEDPA Relief Restriction not Retroactive
- INS Announces New Policy of Release on Bond in Some Instances for Noncitizens Released from Criminal Custody prior to 10/19/98
- Early Parole for Deportation on Hold for Most Noncitizens
- Court Challenge to New Mandatory INS Detention Policy Yields Mixed Results
- Federal Appellate Court Finds New York Misdemeanor May Serve as Aggravated Felony
- First Department Reduces Robbery Sentence by One Day to Block Deportation
- Youthful Offender Adjudication Likely to Equal Conviction For Deportation Purposes
- Supreme Court Denies Cert—Government Sought to Overturn 2nd Circuit Decision Finding AEDPA Restriction Not Retroactive
- Mandatory INS Detention Follows Most Deportable Offense Convictions
- INS Deportations of Noncitizens in 1998 at All-Time High
- Early Parole For Deportation Suspended, Now Being Re-activated
- Deportable for Jumping a Turnstile: Why You and Your Non-Citizen Client Must Consider Immigration-Related Consequences of Criminal Convictions and/or Conduct
Criminal Proceedings May Make a Client Removable - What Removability and a Removal Order Now Mean
- What Ineligibility for Citizenship Now Means
- Duty to Advise of Immigration-Related Consequences
