Friday, April 9, 2010

Padilla v. Kentucky and the Immigration Consequences of Crimes

On March 31, 2010, in a landmark decision called Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen defendant regarding the immigration consequences of a guilty plea, and that absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

On Immigration Advocates Network:

The "Immigration and Crimes" library contains:

- "National Practice Advisory: Duty of Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky," by the Immigrant Defense Project on behalf of the Defending Immigrants Partnership at
(login required). This national practice advisory provides a summary and key points of the Padilla decision for criminal defense lawyers, a brief review of select defense lawyer professional standards cited by the court, an immigration consequences of crimes checklist, and a summary of resources available to criminal defense lawyers nationally.

- "Immigration Consequences of Criminal Convictions Checklist" at
(login required). This is a one page reference sheet that provides an overview of the immigration consequences of criminal convictions.

- "Removal Defense Checklist in Criminal Charge Cases" at
(login required). This checklist summarizes some defensive legal arguments and strategies that non-citizens and their legal representatives may pursue in removal proceedings involving crime-related charges.

- Quick reference guides and manuals on the immigration consequences of state offenses in over 18 states and for federal offenses at (login required). This section of the library contains 11 comprehensive charts, including Arizona, California, Florida, Illinois, Indiana, New Jersey, New York, Virginia, Washington, Wisconsin, and federal. It also includes six abbreviated charts that cover Connecticut, Florida, Vermont, New Mexico, North Carolina, Massachusetts, and Texas.

- "Practice Advisory: The Impact of Nijhawan v. Holder on the Application of the Categorical Approach to Aggravated Felony Determinations," by the Immigrant Defense Project and the National Immigration Project, at (login required). This practice advisory analyzes the Nijhawan's impact on the 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.

- "Practice Advisory: The Impact of Nijhawan v. Holder on the Application of the Categorical Analysis to Selected Grounds of Inadmissibility and Deportability," by the Immigrant Legal Resource Center, at
(login required). This practice advisory provides a summary of the opinion, practice tips for criminal and immigration counsel, highlights one issue to be considered under the categorical approach called the "missing element" rule, and explores the potential effect of the decision if courts apply Nijhawan to the grounds of inadmissibility and deportability.

- "Practice Advisory: Recent Developments in the Categorical Approach: Tips for Criminal Defense Lawyers Representing Immigrant Clients," by the Immigrant Defense Project, at (login required). This practice advisory discusses the basics of the "categorical approach" that immigration courts employ to determine whether a state or federal criminal offense falls within the criminal grounds of removal (deportation) and why it is important to criminal defense attorneys. It also provides background on recent developments in the "categorical approach" and provides practice tips to help criminal defenders represent immigrant clients to take advantage of the categorical approach where it applies and to avoid or mitigate negative immigration consequences under these new legal developments.

- "Practice Advisory: Defense Arguments Against Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)," by the Immigrant Legal Resource Center, at (login required). This advisory provides arguments to refute the BIA's decision that a respondent bears the burden of document production to establish that a conviction under a divisible statute is not a bar to relief and that any conviction of a crime involving moral turpitude is a bar to non-LPR cancellation.

The "Podcasts" section contains:

- "Immigration Consequences of Crimes: Statutory Rape - When is it an Aggravated Felony," by Kathy Brady, Senior Staff Attorney at the Immigration Legal Resource Center. This podcast analyzes the BIA and circuit court decisions on statutory rape, consensual sex and sexual abuse of a minor, misdemeanor and felony convictions in this area of law, the importance of examining the record of conviction and other related issues at (login required)

- "Understanding the Immigration Law Consequences of Criminal Activity," produced by the American Immigration Lawyers Association (AILA), this podcast features AILA members Mary E. Kramer, David Leopold, and Thomas E. Moseley. It provides general advice for representing foreign born clients with respect to deportation or inadmissibility consequences of pleas at (login required)
- "Common Questions and Answers on the Immigration Consequences of Juvenile Delinquency," presented by Angie Junck, Staff Attorney at the Immigrant Legal Resource Center (ILRC). This podcast discusses what a juvenile delinquency disposition is, whether there are immigration consequences to a delinquency disposition, how to obtain records of delinquency dispositions, special considerations when representing minors with delinquency dispositions and other issues at (login required)

The "Webinars" section contains:

- "Immigration Consequences of Delinquency," presented by the Immigration Legal Resource Center. This webinar provides an overview and framework for analyzing the immigration consequences of delinquency and underscores the differences from the immigration consequences of crimes analysis. It provides background and strategies on particular grounds that are troublesome for immigrant youth, such as drug trafficking, drug use, gang, and violent related offenses. It also covers legal considerations in the disclosure of juvenile conduct in immigration applications, with a special focus on Form I-485, Adjustment of Status. Finally, practitioners share challenges, strategies, and other tips in representing youth with delinquency issues and how to win these cases as a matter of discretion. It is available at (login required)

- "Crimes Involving Moral Turpitude: Advocacy Strategies in Self-Petitioning and U Visa Representation," with Ann Benson, Directing Attorney for the Washington Defender Association's Immigration Project. This webinar discusses the crimes involving moral turpitude (CIMT) grounds of inadmissibility as it relates to self-petitioning and U visa applicants. Ann also discusses how to determine which CIMT grounds apply, how to apply the current CIMT analytical framework, and how to analyze cases and advocate for clients when there is a potential CIMT offense at (login required)

- "Crimes Based Inadmissibility Issues," presented by Mary Holper, Visiting Assistant Professor at Boston College Law School, and Sarah Bronstein, Staff Attorney with CLINIC. This webinar discusses the crime based grounds of inadmissibility, including crimes involving moral turpitude, controlled substance violations, exceptions to crime based grounds of inadmissibility, and the waivers that are available at
(login required)

Upcoming Trainings on Immigration and Crimes:

- On Friday, April 9, from 9 a.m. to 5 p.m. at the Dallas Bar Association, Catholic Charities of Dallas Immigration and Legal Services will host a training called, "Immigration Consequences of Crimes: Relief from Removal." More information is available at

- The American Bar Association presents "The Intersection of Criminal and Immigration Laws: Padilla v. Kentucky and Other Recent Decisions of the U. S. Supreme Court," an in-person training, teleconference and live audio webcast on Thursday, April 29, 2010. More information is available at

- The Immigrant Legal Resource Center is hosting a crimes webinar series from April through June, which includes: Part I: Introduction to Immigration Consequences of Crimes on Thursday, April 15 from 10:00 - 11:30 a.m. PDT; Part II: Family Immigration for Clients with Criminal Histories on Tuesday, May 4 from 12:00 -1:30 p.m. PDT; and Part III: Applications for Relief in Removal Proceedings on Thursday, June 10 from 12 - 1:30 p.m. PDT. To register, visit and select "seminars."

- The Defending Immigrants Partnership will be presenting a national webinar, "The Duty of Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky," at the end of April for indigent criminal defenders. For updates visit

- For ongoing immigration and crimes trainings throughout the year, visit the Law Offices of Norton Tooby website at

Other Resources on Immigration and Crimes:

Defending Immigrants Partnership

The Defending Immigrants Partnership website is dedicated exclusively to providing resources to criminal defenders representing noncitizen defendants at

Immigrant Legal Resource Center

The Immigrant Legal Resource Center website contains information on the intersection of immigration and criminal law at

National Immigration Project of the NLG

The National Immigration Project of the NLG website includes advisories, pleadings and other information on the immigration consequences of criminal convictions at

Immigrant Defense Project

The Immigrant Defense Project website provides information and resources on the immigration consequences of criminal convictions for criminal defenders, immigration advocates, and immigrants at

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