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Section 212(h) of the INA provides a waiver for crimes inadmissibility grounds, which can be surprisingly useful for undocumented people, VAWA applicants, or permanent residents. It can be applied for multiple times; it has the potential to waive an aggravated felony conviction (unless it is related to drugs); it can be used both affirmatively and as a defense to removal; and it does not always require proof of "extreme hardship." Unfortunately, it can't be used to waive drug convictions or conduct, other than a single incident involving possessing a small amount of marijuana. 

California law requires prosecutors to consider immigration consequences when plea bargaining.  Cal. Pen. C. 1016.3(b).  This memo describes the unique duties prosecutors have when charging and negotiating DUI-related cases with DACA recipients.

Preparing a strong case for bond for detained clients has become more important than ever. This practice advisory discusses how to address evidentiary issues and challenges in bond proceedings and provides tips for proving your bond case, as well as overcoming negative factors.

With a few exceptions, immigration authorities must use the “categorical approach” to determine whether a criminal conviction triggers a ground of removal. Expert use of the categorical approach may be the most important defense strategy available to immigrants convicted of crimes.

This guide provides step-by-step guidance on how to check if you have a criminal record from the FBI and state government agencies.

On October 25, 2019, Attorney General Barr issued a precedential opinion limiting when immigration authorities will give effect to a state court modification of an imposed sentence.  See  Matter of Thomas and Matter of Thompson, 27 I&N Dec. 674 (AG 2019), available at: https://www.justice.gov/eoir/page/file/1213201/download (“Matter of Thomas/Thompson”)  While advocates plan to challenge this decision in the courts of appeals, it is now binding law. This advisory summarizes the case, provides advice to defenders, post-conviction practitioners, and immigrant advocates about its implementation, and suggests arguments to raise on appeal. 

Moving Texas Forward: Local Policies Towards Inclusive Justice was created for the many organizations and elected officials in Texas that are struggling to find solutions to disrupt the harmful arrest-to-deportation pipeline. Texas has helped deport more people than any other state. In fiscal year 2017, more than 395,000 people, or 17% of all deportations nationwide, were deported from Texas. Texas’ role in the detention and deportation of immigrants has increased under the Trump administration and will continue to increase because of SB 4. This guide attempts to provide a comprehensive and thorough look at some of the ways advocates, policymakers, and local law enforcement can work together to minimize the arrest-to-deportation pipeline.

In a flawed but significant decision, the Ninth Circuit held that California Penal Code § 243(d), battery with injury, is a crime of violence. United States v. Perez (9th Cir. July 11, 2019). Because of Perez, criminal defenders must assume that § 243(d) is a crime of violence and seek other dispositions when necessary.  Immigration advocates should appeal adverse decisions and preserve the argument on appeal.  See this Advisory for a discussion of the decision, alternative pleas, and suggestions for arguments.

For noncitizens, even a low level offense like a shoplifting conviction can lead to mandatory deportation. However, this can be avoided when people secure post-conviction relief to erase or modify their old convictions. If the convictions are vacated, or the sentences reduced, the grounds for removal often evaporate.

Gubernatorial pardons have become an increasingly important and accessible tool for immigrants to erase certain immigration consequences of criminal convictions. This two-page primer, written in collaboration with the UCLA School of Law Criminal Defense Clinic and available in both English and Spanish, provides an overview of the California Pardon process for potential applicants and their advocates.  

Diversion refers to a variety of programs that seek to avoid the processing of a defendant through the traditional criminal legal system. The goal of diversion is to direct an individual who has been accused of a crime into a treatment or care program as an alternative to imprisonment and/or prosecution. 

These flyers inform community members of the fact that it is very dangerous for any noncitizen, including a permanent resident, to discuss marijuana use with any official. This is true even if the person used marijuana in their own home and it was legal under the law of their state (because of medical or legalized marijuana state laws). Get legal counsel and get informed!

Immigration law has its own definition of what constitutes a criminal "conviction." Because most, although not all, immigration consequences require a conviction, if your client does not have a conviction the immigration case might be saved. This Advisory discusses which dispositions that come out of criminal court actually constitute a conviction for immigration purposes, and how to avoid a conviction. It has been updated to include the BIA's decision that a conviction on direct appeal of right does not have sufficient finality to be a conviction for immigration purposes.

Over the past four years, working with partner organizations throughout California and nationally, the ILRC has helped advocate and pass a series of reforms at the local and state levels that advance the rights of both citizens and noncitizens and connect the dots between the criminal and immigrant justice movements.  This graphic describes some of these campaigns.  If you would like support leading similar policy efforts of your own, please feel free to reach out to Rose Cahn, rcahn@ilrc.org.

In Stokeling v. United States, the Supreme Court addressed the definition of a "crime of violence" under the ACCA.  This advisory alerts public defenders and immigration advocates to possible immigration challenges caused by Stokeling, and defense strategies.

In August 2018, the Ninth Circuit published an opinion holding that methamphetamine as defined under California law is not a controlled substance for federal immigration purposes.  In January 2019, however, the court withdrew the published opinion, and issued a non-published opinion that came to the same conclusion.  See Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018), withdrawn by Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. 2019), and unpublished decision at Lorenzo v. Whitaker, 752 F. App'x 482 (9th Cir. Jan. 17, 2019). The case has been remanded to the Board of Immigration Appeals.  At this time, California defenders must assume that California methamphetamine is a controlled substance for immigration purposes. Immigration advocates in removal proceedings have no precedent to rely upon, but they can make the Lorenzo argument and cite to the unpublished case, while also aggressively pursuing other defense strategies.

The master calendar hearing is the first hearing in removal proceedings before an immigration judge of the Executive Office for Immigration Review, during which serious substantive decisions can be made in an immigrant’s removal case. Advocates must be well prepared and have a clear case strategy in mind prior to the master calendar hearing, as well as a detailed plan for how to advocate during this hearing. This advisory and accompanying checklist are designed to provide a quick guide for advocates to flag the issues that need to be addressed when representing clients at a master calendar hearing.

In August 2018, the Board of Immigration Appeals issued a call for amicus briefs to respond to the question of whether an ILRC-sponsored law, California Penal Code 1203.43, effectively vacated convictions for the purposes of federal law. With gratitude for the assistance of Prof. Jennifer Lee Koh, Western State College of Law, and Michael Mehr, the ILRC coordinated 37 other legal services organizations, nonprofits, public defender offices, law school clinics, and law firms, to sign onto an amicus contending that the Board of Immigration Appeals should not treat convictions vacated under Penal Code 1203.43 as convictions for federal immigration purposes.

The BIA has held that that it will not give retroactive effect to California Penal Code § 18.5(a) on convictions from before January 1, 2015. It will consider a California misdemeanor conviction from before January 1, 2015 to have a potential sentence of up to one year, while a misdemeanor conviction on or after that date will have a potential sentence of up to 364 days. Having a potential sentence of just 364 days can help some immigrants who are convicted of a crime involving moral turpitude. (Note that this decision does not affect how immigration treats a sentence that actually was imposed. It only concerns the maximum possible sentence.) Advocates will appeal this decision.

The ILRC is proud to stand with 30 of our partners in the criminal justice reform movement to release this report, Repairing the Road to Redemption in California. Our report is part of a national effort, called #TimeDone, to raise awareness of how many people are affected by the barriers associated with convictions and the extent to which they undermine, economic security, family stability, and public safety.

Thanks to the advocacy of the ILRC, CPDA, CACJ, and the ACLU, on September 27, 2018, Governor Brown signed into law amendments to California Penal Code Section 1473.7. The amendments will take effect January 1, 2019. This advisory contains practice tips for advocates and a detailed discussion about the changes to section 1473.7.

On May 16, 2018, the California Supreme depublished People v. Landaverde, which had narrowly construed defense counsel’s pre-Padilla duty to advise immigrants about the consequences of a criminal conviction. The ILRC and Mike Mehr filed the request to depublish which was cosigned by 13 public defender offices, 8 immigrant rights and criminal justice groups; and 9 immigrant rights and criminal justice professors and clinics throughout the state.

This article is an updated guide to selected California offenses that discusses precedent decisions and other information showing that the offenses avoid at least some adverse immigration consequences.

As of January 2018, the California Values Act (SB 54) is the law in California. This sweeping legislation curtails the role of state and local police agencies in federal immigration enforcement. This webinar, tailored to criminal defenders, will provide an overview of the Act’s major provisions and how to incorporate this new law into your defense practice. If you are interested in accessing the recording, please contact Grisel Ruiz, gruiz@ilrc.org.

Are you thinking about helping detained immigrants? It’s time to get your feet wet. This guide talks you through the initial basic steps to support someone requesting from bond from the immigration judge. This guide includes simple steps to get you started, including how to find your client and what to present to the court.

The domestic violence deportation ground at INA § 237(a)(2)(E) sets out four bases for deportability. Recent Board of Immigration Appeals and federal decisions, including the Supreme Court decision in Sessions v. Dimaya, significantly affect each of the four bases. This advisory will provide a brief overview of the deportation ground, and then outline the recent decisions and how they may affect representation in California and the Ninth Circuit. It includes an appendix analyzing common California offenses as crimes of violence.

This statement from a coalition of immigrant rights organizations urges members of Congress to vote no on the FIRST STEP Act of 2018 (H.R. 5682). This bill excludes a wide swatch of immigrants, further criminalizes aspects of migration, and fails to address root systemic causes of incarceration nor advance any meaningful criminal justice reform.

This report details findings from a national survey of legal practitioners concerning the increased use of gang allegations against young immigrants as a means of driving up deportation numbers, at the encouragement of the Trump administration. The report suggests emerging best practices for immigration attorneys to employ in both fighting against unfounded gang allegations and working to mitigate the impact of prior gang involvement.

Upon the January 1, 2017 enactment of Penal Code 1473.7, the LA District Attorney took the position that the motions were not ripe unless a final removal order or notice to appear had issued. Thanks to advocacy of organizations and individuals, especially Harland Braun, on April 17, 2018, the LA District Attorney Office changed their policy noting that “the Office is persuaded that the Legislature intended section 1473.7 to apply regardless of whether the moving party has received notice of removal proceedings or a removal order.”

Since 1986, the Continuing Education of the Bar, in its “Crim Law Bible,” California Criminal Law Procedure and Practice, has included a chapter about representing the noncitizen criminal defendant. This chapter and the advice therein is often cited as establishing the prevailing professional norms at the date of any given conviction.