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Prosecutors
Criminal Convictions can have serious consequences on peoples’ lives – especially non-citizens who wish to stay in the United States. Many immigration benefits have criminal bars, meaning that certain convictions will prevent you from getting a lawful immigration status, like permanent residence (green card). This Community Explainer offers some options for those who have had certain convictions related to domestic violence or human trafficking, with insights about how to define these crimes, some example scenarios, and explanations about the benefits of a legal tool called a “vacatur.”
Drug offenses cause the harshest, most disproportionate immigration penalties of any offense. Criminal defenders and immigration advocates need information to work aggressively to defend immigrant clients. This advisory provides strategies to avoid a drug conviction, including how and when to use Penal Code § 372.5 (2023), along with practice tips, resources, and arguments to support negotiating for an immigration neutral plea or disposition in criminal court.
Prosecutors
Prosecutors have a vital role to play in ensuring that expanding federal immigration enforcement does not undermine community trust, public safety, or the fair administration of justice. As courts become gateways to the deportation pipeline, all actors in the criminal justice system, including prosecutors, must examine their practices and policies with respect to immigrants.
Since the 1980s the ILRC has been a national leader in addressing the immigration consequences of crime and delinquency. For the last decade, the ILRC has led national efforts to engage and educate prosecutors about the immigration consequences of crime at the local and federal level. As the primary drafters of a landmark piece of legislation requiring prosecutors to consider immigration consequences, we have actively engaged in policy advocacy to transform prosecutorial practices. We have worked directly with elected prosecutors throughout the country to draft and enact policies that mitigate or eliminate the devastating lifelong impact of criminal convictions. We are regularly called upon to provide trainings and guidance to District Attorney offices and state associations. We also support local campaigns where we arm directly impacted communities with the immigration-related resources they need to further their work to increase prosecutorial accountability.
So, you’re organizing a local town hall or candidate forum about DA and immigration; great! ILRC has developed a number of resources that can be helpful.
Harris County, home to approximately 1.2 million immigrants, is one of the largest and most diverse counties in the United States. Unfortunately, it also operates an expansive jail system and is an epicenter of immigration enforcement. This report looks at criminal case outcomes before Harris County courts and highlights disparities between U.S. citizens and non-citizens in arrests, charges, bail, case disposition, and sentencing. Through this report, we seek to raise awareness about how non-citizens are unjustly treated in Harris County, and we provide key policy recommendations for stakeholders to take immediate action to address such inequities.
Immigration law has its own definition of what constitutes a criminal conviction. The Board of Immigration Appeals (BIA) and other courts have held that certain types of pretrial diversion and intervention agreements that result in dismissal under state law can still constitute a conviction for immigration purposes. Practitioners must pay close attention to the structure of such agreements, and the variety of available diversion programs, when evaluating a client’s criminal history and advising about the potential immigration consequences of criminal offenses and dispositions. This advisory discusses when such diversion agreements and programs will constitute a conviction for immigration purposes, strategies to avoid triggering an immigration conviction, and tips for advocating for “immigration-safe” agreements.
This Practice Advisory is a detailed follow-up to our prior Practice Alert on the Supreme Court's April 23, 2020 decision in Barton v. Barr, 140 S. Ct. 1442 (2020). In Barton, the Court held that committing an offense “listed in” the inadmissibility grounds at INA § 212(a)(2) triggers the "stop-time" rule for purposes of cancellation of removal eligibility, even for an admitted LPR who cannot be charged as removable under the inadmissibility grounds. This Advisory provides an in-depth discussion of the Barton decision, focusing on legal arguments to push back against overreaching DHS efforts seeking to trigger the stop-time rule, legal arguments and trial strategies to prevent conduct that did not result in conviction from triggering the stop-time rule, and considerations for criminal defense lawyers representing immigrants in criminal proceedings.
COVID-19 has made one thing clear; when law enforcement cooperates with ICE this has dire public health implications. There have been renewed and urgent efforts to stop this cooperation, including a recently filed lawsuit California Attorneys for Criminal Justice, et al. v. Gavin Newsom, California Governor, et al., challenging the transfer of people from state and local custody to ICE in the midst of COVID-19. Ten current and former district attorneys and police chiefs from across California filed an amicus curiae letter brief in support of this lawsuit. This letter brief was authored and organized by Fair and Just Prosecution, Immigrant Legal Resource Center, and Pillsbury Winthrop Shaw Pittman LLP.
As more and more jurisdictions are contemplating releasing people from jails and prisons, it is critical that we consider ways to ensure that people released are not immediately transferred to the harmful deportation system. ILRC, together with our allies, Asian Prisoners Support Committee, Asian Americans Advancing Justice – Asian Law Caucus, and California Alliance for Youth and Criminal Justice, put together this list of recommendations that advocates can use to demand responsible releases.
Over the years, various courts throughout the country have agreed that prolonging custody of a person solely based on an ICE detainer request is unlawful for numerous reasons. This practice advisory provides a summary of the court decisions related to ICE detainers and the arguments to challenge localities that continue to detain people for ICE. The cases discussed here illustrate some of the detailed arguments that are developing over what the Fourth Amendment requires and what is authorized or not by federal and state laws.