1 Introduction - Wisbar

© December 2015, State Bar of Wisconsin PINNACLE 1-1

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Introduction

I. Servio’s Story [§ 1.1] .................................................................. 2

II. What If Servio Were Arrested Today? [§ 1.2] ......................... 5

III. Defense Counsel’s Dilemma [§ 1.3] ........................................... 6

IV. Key Immigration Terms [§ 1.4] ................................................. 7 A. In General [§ 1.5] ................................................................. 7 B. Crimmigration [§ 1.6] .......................................................... 7 C. Inadmissibility, Inadmissible [§ 1.7] .................................... 8 D. Deportability, Deportable [§ 1.8] ......................................... 8 E. Removal, Removability, Removable [§ 1.9] ........................ 9 F. Relief from Removal [§ 1.10] .............................................. 9 G. Immigration and Customs Enforcement [§ 1.11] ................. 9 H. Customs and Border Protection [§ 1.12] .............................. 9 I. U.S. Citizenship and Immigration Services [§ 1.13] ............ 9 J. Immigration and Nationality Act [§ 1.14] .......................... 10 K. Board of Immigration Appeals [§ 1.15] ............................. 10 L. Crime Involving Moral Turpitude [§ 1.16] ........................ 10 M. Aggravated Felony [§ 1.17] ............................................... 10

V. Most Common Forms of Immigration Status [§ 1.18] .......... 11 A. In General [§ 1.19] ............................................................. 11 B. Lawful Permanent Resident [§ 1.20] .................................. 11 C. Undocumented [§ 1.21] ...................................................... 12 D. Visa Overstay [§ 1.22] ....................................................... 12 E. Nonimmigrant Visa Holder [§ 1.23] .................................. 12 F. Asylee [§ 1.24] ................................................................... 13 G. Refugee [§ 1.25] ................................................................. 13 H. Temporary Protected Status [§ 1.26] .................................. 13 I. Deferred Action [§ 1.27] .................................................... 14 J. Naturalized U.S. Citizen [§ 1.28] ....................................... 14

VI. Book Outline [§ 1.29]................................................................ 15

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1-2 © December 2015, State Bar of Wisconsin PINNACLE


A. In General [§ 1.30] .............................................................. 15 B. Part I–Immigration Law for Defense Attorneys

[§ 1.31] ................................................................................. 15 C. Part II–Select Wisconsin Offenses [§ 1.32] ........................ 18

1. In General [§ 1.33] ....................................................... 18 2. In-Depth Coverage [§ 1.34] ......................................... 18 3. Most Common Wisconsin Criminal Offenses

Discussed [§ 1.35] ........................................................ 19 D. Part III–Practice Management and Practical

Applications [§ 1.36] .......................................................... 19

VII. Important Caveats [§ 1.37] ...................................................... 20 A. Immigration Law Is Complex [§ 1.38] ............................... 20 B. Immigration Law Changes Frequently [§ 1.39] .................. 21 C. Defense Counsel May Need to Consult with an

Immigration Lawyer [§ 1.40] ............................................. 21 D. This Book Assumes a Noncitizen Wants to Avoid

Deportation [§ 1.41]............................................................ 22

VIII. Conclusion [§ 1.42] .................................................................... 22

I. Servio’s Story [§ 1.1]

The goal of this book is to help defense attorneys represent a client

like Servio, who was nearly deported for unwittingly pleading guilty to

an automatic deportable offense. Servio is now a U.S. citizen, but his

pathway to citizenship was anything but easy.1

Servio was brought to the United States as an infant. He entered

lawfully on a visitor visa with his mother. Because his family chose to

remain in the United States beyond the allotted stay, Servio overstayed

1 Unless otherwise indicated, all references in this chapter to the Wisconsin

Statutes are to the 2013–14 Wisconsin Statutes, as affected by acts through 2015

Wisconsin Act 62; all references to the United States Code (U.S.C.) are current

through Public Law No. 114-61 (excluding Public Law Nos. 114-52, 114-54,

114-60) (Oct. 7, 2015); and all references to the Code of Regulations (C.F.R.)

are current through 80 Fed. Reg. 64,298 (Oct. 22, 2015).

INTRODUCTION



his visa, too. As an infant, Servio obviously lacked the mens rea to

violate the terms of his visa. He went through the public school system

and did not realize he was “undocumented” until he was in middle

school.

His mother, who became a naturalized U.S. citizen, applied for him to

become a permanent resident when he was 16 years old. While his

application was pending, Servio was arrested and charged with

possession of marijuana with intent to distribute. He had just turned 17

years old at the time. Despite possessing only approximately 18 grams

of marijuana, Servio bought the marijuana in 6 individual baggies.

About an hour after the purchase, Servio was pulled over for a traffic

violation, searched, and arrested. He was charged with felony possession

with intent to deliver solely because of the packaging of a small amount

of marijuana.

Servio’s criminal defense attorney advised him to plead guilty

because taking the case to trial could result in a lengthy prison sentence.

Being very young and having never been in trouble before, Servio was

frightened of the prospect of being in prison with hardened criminals.

He just wanted to move on with his life. Servio took his attorney’s

advice and pleaded guilty despite the fact that he bought the marijuana

for his own personal use.

Servio and his attorney did not discuss the immigration consequences

of his plea. In fact, at the time of Servio’s plea, Wisconsin case law was

clear that deportation consequences were treated as a collateral

consequence, and therefore a defense attorney owed no constitutional

duty to discuss deportation with noncitizen clients. See State v. Santos,

136 Wis. 2d 528, 401 N.W.2d 856 (Ct. App. 1987), abrogation

recognized by Chaidez v. United States, 133 S. Ct. 1103 (2013). Servio

did not even think to discuss that issue with his attorney. He thought

immigration and criminal law were two distinct fields.

About one year after his plea, Servio learned of the immediate

immigration consequence to his plea. His pending application for

permanent residence, called an adjustment of status, was denied because

his plea to possession of marijuana with intent to distribute is an

inadmissible offense. Even worse, there is no waiver or “pardon”

available for this offense. By pleading guilty, Servio became

permanently barred from ever becoming a permanent resident.

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Despite losing out on his green card, life went on for Servio. He fell

in love and married a U.S. citizen. Servio and his wife celebrated the

birth of their son. He had gainful employment under his own Social

Security number by working with an expired work permit issued when

his permanent-resident application was pending.

Servio’s life, however, was turned upside down by a knock on the

door in the middle of the night. It was Immigration and Customs

Enforcement (ICE), and the officers came to his house with an arrest

warrant for him. Ten years had elapsed since his conviction. He was

now 27 with a wife and a 7-month-old son.

Much to Servio’s surprise, he was not entitled to a bond from ICE.

He received even more grim news: his conviction qualified as an

“aggravated felony” under immigration law and therefore ICE had the

power to summarily remove him from the United States without an

opportunity for Servio to defend his case before an immigration judge.

He was told that he was going back to his home country in a matter of a

few weeks—a country he had never really lived in by virtue of coming to

the United States as an infant.

Servio was not deported. He is still here and now is a U.S. citizen

purely because of fortuitous circumstances. The circuit court had failed

to give Servio the mandatory immigration warnings under Wis. Stat.

§ 971.08(1)(c), and he withdrew his plea pursuant to Wis. Stat.

§ 971.08(2). If not for the kind gestures of a court reporter preparing the

transcripts in record time and the court’s clerk scheduling a hearing

within a few days after filing the motion, Servio would have been

removed from the United States. He would have run out of time before

the court could hear his motion to withdraw the plea. His son would

have grown up without a father.

After the conviction was vacated, Servio was released from ICE

custody on a bond. The district attorney agreed to a lesser offense

involving Servio’s possession of drug paraphernalia—a marijuana

pipe—for his own personal use of marijuana. Although the amended

offense also carried an immigration consequence for Servio, it could be

waived under immigration law. For Servio, the waiver standard required

him to show that his removal from the United States would result in

extreme hardship to his young son and his wife. In light of both the

hardship and substantial equities in his case, the immigration judge

INTRODUCTION



granted Servio’s renewed application for permanent residence and

waiver of inadmissibility.

In December 2014, Servio took the final step in his immigration

journey and became a U.S. citizen through the naturalization process.

His wife and son were present to witness a proud moment in Servio’s

life.

II. What If Servio Were Arrested Today? [§ 1.2]

Servio’s story is not uncommon. Unfortunately, noncitizen

defendants in Wisconsin frequently plead to offenses without fully

understanding the immigration ramifications. In Servio’s case, his

defense attorney was not ineffective because at that time defense

attorneys could simply elect to remain silent on the issue of deportation.

But what if an immigrant like Servio were charged with a similar

drug offense today? The U.S. Supreme Court’s decision in Padilla v.

Kentucky, 559 U.S. 356 (2010) would mandate that Servio’s defense

attorney advise him that his plea carried a risk of deportation.

Padilla is a game-changer. The decision has been called the “Gideon

for immigrants” because it places a Sixth Amendment duty on defense

counsel to discuss potential immigration consequences with their

noncitizen clients. See, e.g., Maria Teresa Rojas, A “Gideon Decision”

for Immigrants, Int’l Migration Initiative (Apr. 7, 2010), http://www

.opensocietyfoundations.org/voices/gideon-decision-immigrants. While

Padilla may not necessarily rise to the level of a watershed decision like

Gideon v. Wainwright, 372 U.S. 335 (1963), which guarantees

representation for indigent criminal defendants, it mandates that defense

attorneys assist their noncitizen clients in ways not previously required.

This book provides the structural framework for defense counsel not

only to meet their burden under Padilla, but also to propose immigration-

safe pleas for immigrants like Servio.

Comment. Padilla is a wonderful decision because of the

horrible nature of deportation. Deportation is often the equivalent of

banishment, which was a form of punishment in England during the

18th century, as well as in the Soviet Union during the 20th century.

The U.S. Supreme Court remarked that banishment is a “fate

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universally decried by civilized people.” Trop v. Dulles, 356 U.S. 86,

102 (1958).

In the context of deportation, banishment is both legal and

constitutional because immigration is civil law only. Deportation is

therefore not considered “punishment.” A person removed from this

country may lose everything, including a well-paying job, all future

Social Security benefits, a house and other investments, and the comfort

of living in an advanced industrialized nation. Even worse, a noncitizen

facing deportation may be permanently separated from U.S.-citizen loved

ones. In some cases, a person deported may face death in the home

country either as a result of being specifically targeted for some reason or

general country conditions that have greatly deteriorated. The stakes

often could not be higher for a noncitizen defendant. The U.S. Supreme

Court’s decision in Padilla correctly places a burden on defense

attorneys to advise noncitizen defendants of the possible life-changing

ramifications of pleading guilty to certain offenses.

III. Defense Counsel’s Dilemma [§ 1.3]

While Padilla v. Kentucky, 559 U.S. 356 (2010) is a laudable

decision, it also may place criminal defense attorneys in a difficult, and

perhaps in certain cases, an impossible position. As discussed in greater

depth in chapter 3, infra, Padilla’s majority opinion is bifurcated: (1) for

offenses that carry a “clear and succinct” immigration consequence,

defense attorneys must provide noncitizens with accurate advice

regarding that consequence; and (2) in cases that are less clear, defense

attorneys need only provide an equivocal warning that a plea “may

carry” an immigration consequence.

The opinion in Padilla begs the question: how is a defense attorney

supposed to know when a particular offense carries a “clear and

succinct” immigration consequence? Criminal defense attorneys are not

immigration lawyers. In fact, it is not fair to force defense attorneys to

become immigration lawyers. Defense attorneys want to represent

criminal defendants in criminal court, not immigrants in immigration

court.

Justice Alito’s concurrence in Padilla addressed this conundrum. The

concurring opinion states that the “Court’s new approach is particularly

problematic because providing advice on whether a conviction for a

INTRODUCTION



particular offense will make an alien removable is often quite complex.”

Padilla, 559 U.S. at 377 (Alito, J., concurring). Justice Alito devotes

several pages to outlining how various books and treatises have

uniformly concluded that determining the immigration consequences of a

criminal offense is often not “easily ascertained.” Id. at 378 (Alito, J.,

concurring).

In light of the complexity of this body of law, the concurrence asks

these important questions:

How can an attorney who lacks general immigration law expertise be sure

what a seemingly clear statutory provision actually means that it seems to

say when read in isolation? What if the application of the provision to a

particular case is not clear but a cursory examination of case law or

administrative decisions would provide a definitive answer?

Id. at 381 (Alito, J., concurring).

This book is the answer to Justice Alito’s fair questions regarding the

majority opinion in Padilla. It is the toolbox for defense attorneys to not

only meet their minimum duties under Padilla, but also to pursue a plea-

bargaining strategy to avoid or minimize future immigration

consequences.

IV. Key Immigration Terms [§ 1.4]

A. In General [§ 1.5]

Defense attorneys are not going to be instantly well versed in the

language of immigration law, which is often an alphabet soup of

acronyms. But they should familiarize themselves with the following

key terms. See infra §§ 1.6–.17.

B. Crimmigration [§ 1.6]

Crimmigration is the best term to describe the nexus between criminal

convictions and immigration consequences. This term is used throughout

this book to describe the interplay between criminal and immigration

law.

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C. Inadmissibility, Inadmissible [§ 1.7]

Inadmissibility involves various grounds that can bar a person from

being allowed into the United States. A person may be inadmissible

because of health reasons, economic grounds if the person is likely to

become a public charge, or past immigration violations. See generally 8

U.S.C. § 1182(a)(1), (4), (6), (9).

This book is concerned solely with criminal inadmissibility under 8

U.S.C. § 1182(a)(2). The most common types of inadmissible criminal

convictions are crimes involving moral turpitude (CIMTs) and drug

offenses. See infra app. B (checklist of inadmissible offenses), app. D, at

2–5.

Inadmissibility is a broad term. It involves not just noncitizens who

are seeking admission into the United States at a port of entry, such as an

international airport. A noncitizen who is already present in the United

States may be inadmissible if he or she is seeking permanent residence.

A person who wants to become a lawful permanent resident (LPR or

permanent resident) must be admissible.

D. Deportability, Deportable [§ 1.8]

The term “deportation” means the physical removal of a person from

the United States. Deportable, or deportability, conveys a distinct

meaning. A person convicted of a certain offense may be deportable

from the United States regardless of being physically removed from the

United States.

In contrast to criminal inadmissible offenses, deportability covers a

wider range of offenses beyond CIMTs and drug offenses. See supra

§ 1.7; infra app. C (checklist of deportable offenses), app. D, at 6–8.

While a certain conviction may qualify as both an inadmissible offense

and a deportable offense, there are considerable differences between

these two immigration consequences. See infra ch. 5, app. B, app. C.

Caution. A defense attorney must be wary of both inadmissible

and deportable offenses.

INTRODUCTION



E. Removal, Removability, Removable [§ 1.9]

Before 1997, immigration court was divided between exclusion

proceedings (involving inadmissibility only) and deportation proceedings

(involving deportability only). Immigration court currently is called

removal proceedings. An immigration judge can order removal of a

person convicted of either an inadmissible or a deportable offense.

F. Relief from Removal [§ 1.10]

A noncitizen who is removable based on an inadmissible or a

deportable conviction may avoid being physically removed from the

United States if he or she has available relief from removal. The most

common forms of relief from removal are discussed in sections 5.66–.74,

infra.

G. Immigration and Customs Enforcement [§ 1.11]

ICE is the agency within the U.S. Department of Homeland Security

that arrests and detains noncitizens who are subject to removal.

H. Customs and Border Protection [§ 1.12]

Customs and Border Protection (CBP) is the agency within the U.S.

Department of Homeland Security that handles applicants for admission

at a port of entry. Generally speaking, CBP will get involved with the

arrest and detention of a noncitizen who is deemed inadmissible at a port

of entry based on an inadmissible conviction.

I. U.S. Citizenship and Immigration Services [§ 1.13]

U.S. Citizenship and Immigration Services (USCIS) is the agency

within the U.S. Department of Homeland Security that adjudicates

immigration petitions and applications. USCIS has the power to deny an

application on the basis that the applicant is ineligible based on an

inadmissible or a deportable conviction or a conviction record warranting

a negative exercise of discretion.

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J. Immigration and Nationality Act [§ 1.14]

The Immigration and Nationality Act (INA) is the statutory body of

immigration law. INA of 1952, Pub. L. No. 82–414, 66 Stat. 163

(codified as amended in sections of 8 U.S.C. ch. 12). Appendix D, infra,

contains annotated provisions of the INA involving inadmissible and

deportable criminal convictions. The inadmissibility provisions are

found in 8 U.S.C. § 1182(a)(2), and deportable criminal conviction

provisions are found in 8 U.S.C. § 1227(a)(2).

K. Board of Immigration Appeals [§ 1.15]

The Board of Immigration Appeals (Board or BIA) is the highest

agency interpreting immigration law. A noncitizen has an automatic

right to appeal a decision made by an immigration judge to the BIA.

Various federal courts of appeals do not necessarily have jurisdiction to

review all decisions made by an immigration judge or the Board. For

example, a federal court generally lacks jurisdiction over discretionary

decisions. 8 U.S.C. § 1252(a)(2)(B).

L. Crime Involving Moral Turpitude [§ 1.16]

A CIMT is a major ground of both inadmissibility and deportability.

The term CIMT is not statutorily defined, but is defined through case law

only. CIMTs are discussed throughout this book.

M. Aggravated Felony [§ 1.17]

The term aggravated felony is expressly defined under immigration

law. See 8 U.S.C. § 1101(a)(43); infra app. D, at 9–11. An aggravated

felony carries the most severe immigration consequence. It will bar

almost all forms of relief for even long-time LPRs, and it will result in

summary removal for nonpermanent residents.

INTRODUCTION



V. Most Common Forms of Immigration Status [§ 1.18]


This book repeatedly emphasizes the importance of ascertaining the

client’s precise immigration status. A defense attorney will be unable to

fully understand the potential immigration consequences without this

information, including whether inadmissibility, deportability, or

potentially both grounds of removability are implicated. The

questionnaire in appendix A, infra, contains the most common forms of

immigration statuses. Defense attorneys do not need to become experts

in the area of immigration law. Nonetheless, it is imperative for defense

attorneys to be familiar with a client’s particular immigration status

because it is vital for analyzing the potential immigration consequences

of a pending criminal charge. See also infra ch. 5 (discussing different

immigration statuses in context of inadmissibility and deportability as

well as other potential immigration consequences of a conviction).

B. Lawful Permanent Resident [§ 1.20]

An LPR has “the status of having been lawfully accorded the

privilege of residing permanently in the United States as an immigrant in

accordance with the immigration laws.” 8 U.S.C. § 1101(a)(20). An

LPR is sometimes called a green-card holder because the actual

permanent resident card is green. An LPR can live and work in the

United States indefinitely unless permanent residence is abandoned or

taken away. Permanent residence is a precursor to becoming a

naturalized U.S. citizen. See infra § 1.28. In most cases, an individual

must be a permanent resident for at least five years before applying to

become a U.S. citizen through the naturalization process. 8 U.S.C.

§ 1427(a). When a permanent resident is married to a U.S. citizen (who

has been a U.S. citizen for at least three years) and has lived with that

spouse for the past three years, the naturalization wait can be as little as

three years. 8 U.S.C. § 1430(a).

An individual can only lose permanent residence in the following ways:

1. The permanent residence is voluntarily relinquished by filing

U.S. Citizenship and Immigration Services Form I-407;

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2. A determination has been made that permanent residence has

been abandoned by residing outside the United States for an

extended period of time pursuant to 8 C.F.R. § 211.1(a)(2);

3. Permanent residence is rescinded under 8 U.S.C. § 1256; or

4. An immigration judge’s final order of removal serves as

revocation of permanent residence. See 8 C.F.R. § 1001.1(p);

see also Perez-Rodriguez v. INS, 3 F.3d 1074, 1077–79 (7th Cir.

1993).

C. Undocumented [§ 1.21]

“Undocumented” is not a legal term found in the INA. Rather, it is a

term to define an individual who has never been lawfully admitted to the

United States at a port of entry. Variations of this term include

“unauthorized” or “illegal” immigrant. An undocumented immigrant has

entered the United States without inspection, and consequently, is subject

to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) for being present in

the United States without being admitted or paroled. In immigration

circles, an undocumented person is considered to have entered the United

States “EWI,” which stands for entry without inspection.

D. Visa Overstay [§ 1.22]

Unlike an undocumented immigrant, a visa overstay is a person who

has been admitted to the United States at a port of entry, but then the

person either violates the terms of her admission or overstays the allotted

period of time. For example, a person who is admitted on a tourist or

visitor’s visa can only stay in the United States for a maximum period of

six months unless granted express authorization to extend the stay

longer. See 8 C.F.R. § 214.2(b)(1).

E. Nonimmigrant Visa Holder [§ 1.23]

At first blush, the term “nonimmigrant visa holder” might seem

counterintuitive. Most noncitizens living in the United States are often

referred to as immigrants. However, as used in immigration law, the

INTRODUCTION



term “immigrant” refers to a person who intends to reside in the United

States indefinitely.

In contrast, a person on a nonimmigrant visa is only in the United

States for a set period of time and for a defined reason. For example, a

person on a student visa has entered the United States for the limited

purpose of attending school and completing a degree. Once the program

has been completed, that person is expected to depart the United States.

Similarly, an H-1B employment visa is a nonimmigrant visa as well.

Although an H-1B visa can serve as a pathway to permanent residence, it

does not confer indefinite residency. The types of nonimmigrant

classifications are defined in 8 U.S.C. § 1101(a)(15).

F. Asylee [§ 1.24]

An asylee is a person who enters the United States and then applies

for and is granted asylum. 8 U.S.C. § 1158(c)(1). It does not matter

whether a person has entered illegally or on a valid nonimmigrant visa.

Asylum does not require lawful admission. It does require in most

circumstances that the applicant file the asylum application within one

year after entering the United States. 8 U.S.C. § 1158(a)(2)(B).

G. Refugee [§ 1.25]

A refugee is very similar to an asylee, except a refugee is accorded

such status outside the United States and enters the United States

lawfully in refugee status. Both refugees and asylees must establish a

“well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A).

H. Temporary Protected Status [§ 1.26]

Temporary protected status (TPS) is a temporary form of relief for

principally undocumented individuals or visa overstays that is issued by

the executive branch. TPS may be granted in the following

circumstances: (1) an ongoing armed conflict poses a serious threat to

personal safety; (2) an epidemic or other environmental disaster, such as

an earthquake, a flood, or drought, has caused a substantial but

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temporary disruption of living conditions in the designated country; or

(3) the existence of extraordinary and temporary conditions prevents

individuals from returning safely. 8 U.S.C. § 1254a(b).

Presently, the executive branch has extended TPS for foreign

nationals from El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal,

Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, Syria, and

Yemen. See U.S. Citizenship & Immigration Servs., Temporary

Protected Status, http://www.uscis.gov/humanitarian/temporary-

protected-status-deferred-enforced-departure/temporary-protected-status

(last reviewed/updated Sept. 3, 2015). Not every person from these

countries will qualify for TPS. Rather, TPS qualification is tied to when

the person first entered the United States. See id.

I. Deferred Action [§ 1.27]

Deferred action is “an act of administrative choice to give some cases

lower priority” in the unfettered discretion of the executive branch. In re

Quintero, 18 I. & N. Dec. 348, 349 n.1 (BIA 1982). It is considered “an

informal administrative stay of deportation ... as a matter of prosecutorial

grace.” Id. at 349. Deferred action should not be mistaken with a “visa.”

It “accords no rights to permanent residence” and therefore it can be

unilaterally revoked at any time. Id. Rather, deferred action “is simply

the result of an administrative policy to give low priority to the

enforcement of the immigration laws in certain cases.” Id. at 350.

Deferred action “is mentioned nowhere” in the INA. Id. However,

the regulations permit employment authorization for an “alien who has

been granted deferred action, an act of administrative convenience to the

government which gives some cases lower priority, if the alien

establishes an economic necessity for employment.” 8 C.F.R.

§ 274a.12(c)(14). In addition, Wisconsin law expressly provides that a

person granted deferred action under immigration law is authorized to

obtain a driver’s license. Wis. Stat. § 343.14(2)(es)6.

J. Naturalized U.S. Citizen [§ 1.28]

Finally, “naturalized U.S. citizen” is included as an immigration

status. Although U.S. citizens cannot be removed from the United States

if convicted of an inadmissible or deportable offense, a naturalized U.S.

INTRODUCTION



citizen could face denaturalization proceedings if charged and convicted

of an offense when the conduct occurred before naturalization as either a

willful misrepresentation during the naturalization process or as illegal

procurement of citizenship. 8 U.S.C. § 1451(a), (b).

VI. Book Outline [§ 1.29]


This book is divided into three distinct parts: Part I (chapters 2–6,

infra)–immigration law for defense attorneys; Part II (chapters 7–14,

infra)–select Wisconsin offenses; and Part III (chapters 15–18, infra)–

practice management and practical applications.

B. Part I–Immigration Law for Defense Attorneys

[§ 1.31]

Part I of the book provides the framework for defense attorneys to

understand the relationship between criminal offenses and immigration

consequences. Because the two bodies of law are substantively and

procedurally different, immigration law may be counterintuitive for

criminal defense attorneys. Commonly held notions in criminal law need

to be shed first in order to assist noncitizen defendants. For example,

certain misdemeanors will result in the same, or even worse, immigration

consequence as certain felonies. Chapter 2, infra, explores the

substantive differences between these two fields of law as well as the

common myths and misconceptions of crimmigration.

Chapter 3, infra, explains the scope of the decision in Padilla v.

Kentucky, 559 U.S. 356 (2010) and counsel’s Sixth Amendment duty

under it, including how the U.S. Supreme Court’s decision overturned

Wisconsin case law. Chapter 3, infra, also discusses why Padilla is

unlikely to retroactively apply in Wisconsin to pleas entered before

March 23, 2010. This chapter also analyzes the Wisconsin Supreme

Court’s interpretation of Padilla in two cases decided in 2015. In State

v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93, the court took a

narrow reading of Padilla by equating it with the circuit court’s statutory

duty to provide a general and equivocal immigration warning contained

in Wis. Stat. § 971.08(1)(c). In State v. Ortiz-Mondragon, 2015 WI 73,

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364 Wis. 2d 1, 866 N.W.2d 717, the court held that a conviction for

substantial battery in violation of Wis. Stat. § 940.19(2) is not a clear and

succinct CIMT, and therefore a defense attorney’s duty under Padilla is

satisfied by reading the general immigration warning contained on

Wisconsin’s standard plea questionnaire.

Chapters 4, 5, and 6, infra, outline the structural framework for

defense attorneys to analyze the potential immigration consequences of a

particular offense. The approach is called ICIDA, which stands for:

Immigration History

Criminal Record

Inadmissibility

Deportability

Avoiding Removal

The ICIDA framework emphasizes that, in determining the potential

immigration consequences of a charge or plea, the client’s immigration

and criminal history must first be understood. An immigration

consequence does not necessarily happen in a vacuum. A particular

offense may result in an immigration consequence because of the client’s

immigration status, length of residence in the United States, or prior

conviction record.

The ICIDA framework also stresses that there are two distinct

immigration consequences flowing from certain criminal offenses:

(1) inadmissibility, and (2) deportability. While there is overlap between

the two, the scope and consequences are different. Inadmissibility

generally affects noncitizens who will be seeking admission into the

United States, whether at a port of entry or part of an application to

become an LPR. In contrast, deportability generally involves those

noncitizens who have already been admitted to the United States.

The final step in the ICIDA analysis involves defense attorneys

formulating a plea and sentence strategy to avoid or minimize future

immigration consequences. Defense attorneys armed with the knowledge

that they are representing a noncitizen should seek a plea deal that will

avoid or minimize future immigration problems. While the goal is to

avoid both inadmissibility and deportability, chapter 4, infra, explains the

circumstances under which defense counsel might need to sacrifice and

craft a plea deal that will avoid inadmissibility for nonpermanent resident

defendants while eschewing deportability for permanent resident clients.

INTRODUCTION



Chapter 5, infra, contains the details behind the ICIDA structural

framework, including the connection between a person’s immigration

status and inadmissibility or deportability. This chapter discusses the

general grounds of inadmissibility and deportability as well as the

categorical and modified categorical approach. The most common issue

in crimmigration is the extent to which an immigration judge can go

beyond the face of the judgment of conviction and elements of the

offense to examine the underlying conduct.

Chapter 5, infra, also discusses the forms of relief from removal. In

certain cases, a defense attorney cannot craft a plea agreement that will

completely eliminate an immigration liability. However, certain

noncitizens can still pursue relief from removal in immigration court

even if convicted of inadmissible or deportable offenses. This chapter

delves into these various forms of relief from removal. Chapter 5, infra,

ends with a discussion about the limitations of the ICIDA approach. The

approach does not inform a client of every consequence; the informing is

done by a lawyer using the approach. There are certain miscellaneous

consequences beyond inadmissibility and deportability that the ICIDA

approach cannot detect without a more thorough discussion with the

noncitizen defendant.

Chapter 6, infra, applies the ICIDA approach to real-world scenarios,

based in large part on the author’s experience as an immigration lawyer.

This chapter will emphasize why defense counsel should analyze all five

ICIDA steps to best represent noncitizen defendants.

The ICIDA approach goes well beyond what is minimally required

under Padilla, especially in light of the Wisconsin Supreme Court’s

interpretation of defense counsel’s duty in Shata. However, most

attorneys did not enter the legal profession only to do the bare minimum

of what is required under the Sixth Amendment. The goal of

representation is to help the client solve a problem. For many

noncitizens, the problem with a pending criminal charge is the prospect

of being deported if convicted. The ICIDA framework offers the most

comprehensive way for defense attorneys to assist their noncitizen clients

who want to remain in the United States.

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C. Part II–Select Wisconsin Offenses [§ 1.32]

1. In General [§ 1.33]

Part II of the book analyzes the immigration consequences of

approximately 80 select Wisconsin criminal offenses. Following the

ICIDA framework, both inadmissibility and deportability are analyzed

for each offense. The analysis also provides recommended advice and

suggested plea strategy to avoid removal. The chapters are divided by

corresponding chapters in the Wisconsin code:

Chapter 7: Operating Offenses (Wis. Stat. chs. 343, 346, 940,

and 941)

Chapter 8: Crimes Against Life and Bodily Security (Wis. Stat.

ch. 940)

Chapter 9: Crimes Against Public Health and Safety (Wis. Stat.

ch. 941)

Chapter 10: Crimes Against Property (Wis. Stat. ch. 943)

Chapter 11: Crimes Against Government (Wis. Stat. ch. 946)

Chapter 12: Crimes Against Children (Wis. Stat. ch. 948)

Chapter 13: Drug Offenses (Wis. Stat. ch. 961)

Chapter 14: Miscellaneous Offenses (Wis. Stat. chs. 301, 813,

944, 947, and 951)

2. In-Depth Coverage [§ 1.34]

This book offers in-depth coverage of each criminal offense

discussed, not a simplistic chart of Wisconsin offenses for defense

attorneys to use for crimmigration purposes. Providing a chart runs

counter to the ICIDA framework. To properly ascertain an immigration

consequence, defense counsel must understand the client’s immigration

status and history as well as his or her criminal record. A chart cannot

take into account these two important factors in the ICIDA approach.

Furthermore, one of the goals of this book is to provide plea strategies

for each criminal offense. Again, a chart will not offer that in-depth

coverage of each offense.

INTRODUCTION



3. Most Common Wisconsin Criminal Offenses

Discussed [§ 1.35]

This book only focuses on the most common criminal offenses.

Many offenses are very similar and will therefore carry identical

immigration consequences. For example, an offense containing an

element of fraudulent intent is inherently considered a CIMT. Therefore,

an analysis of every fraud offense under Wisconsin law would become

duplicative.

D. Part III–Practice Management and Practical

Applications [§ 1.36]

The final part of this book focuses on the practical implications of

crimmigration practice. Chapter 15, infra, delves into a number of

important practice pointers, such as explaining the sample questionnaire

in appendix A, infra, and using the client checklists in appendices B and

C, infra. Furthermore, this chapter also provides sample language that

defense attorneys should include in their fee agreements, tips on

memorializing counsel’s Padilla advice, and discussions on how to

manage client expectations. Given the nature of criminal law, a

noncitizen client may need to choose between agreeing to a plea that will

likely carry a significant immigration consequence and taking his or her

chances at trial.

Chapter 16, infra, offers strategies for negotiating an immigration-

safe plea with the prosecutor. A prosecutor might be moved to amend an

offense if he or she becomes aware of the devastating immigration

consequences to the noncitizen defendant.

Comment. While defense attorneys generally should raise the

issue of the immigration consequences during plea bargaining, they

should tread carefully. Depending on the client’s immigration status

and criminal record, a prosecutor might not be sympathetic to the

deportation consequences of a particular offense.

Chapter 17, infra, discusses the rise of ICE detainers in Wisconsin’s

jails and state prisons. There is considerable confusion over the scope of

ICE holds and what they do. While a jail can choose to disregard an ICE

detainer, most Wisconsin facilities honor them. Defense attorneys

CHAPTER 1



should be aware of the effect an ICE detainer may have not only on the

criminal case, but also on the likelihood of removal proceedings after the

criminal case is resolved.

This book will end with the result the book seeks to avoid: what can

be done if a noncitizen unwittingly pleads guilty to an inadmissible or

deportable offense? Chapter 18, infra, discusses the potential grounds

for postconviction relief for noncitizen defendants, including relief under

Wis. Stat. § 971.08(2), Padilla v. Kentucky, 559 U.S. 356 (2010), as well

as other possible claims in support of plea withdrawal. Postconviction

attorneys should first understand that not all vacaturs will be honored in

the immigration context. For example, a plea that is withdrawn purely

for rehabilitative reasons or because of immigration hardship will not be

given full faith and credit. Rather, immigration judges will only honor

convictions vacated because of a procedural or constitutional defect in

the plea.

VII. Important Caveats [§ 1.37]

A. Immigration Law Is Complex [§ 1.38]

Justice Alito is right that immigration law is complex. This book

cannot turn a defense attorney into an immigration lawyer. A lawyer

who is interested in specializing in crimmigration should consider

joining the various associations and organization devoted to helping

immigrants who have criminal records, such as the American

Immigration Lawyers Association and the National Immigration Project.

Because this book is principally designed for criminal defense

lawyers, the book errs on the side of caution when it comes to the

potential immigration consequence of a charge. The role of a defense

attorney when representing a noncitizen should be to avoid or minimize

future immigration litigation. The safest plea is the best plea to avoid

litigation in immigration court all together. If an offense potentially

carries an immigration consequence, a better plea deal should be

pursued. Unlike an immigration lawyer, a defense attorney is in the

unique situation of crafting a plea agreement to completely eliminate the

possibility of an inadmissible or deportable conviction. In contrast, an

immigration lawyer is already faced with an existing conviction in

removal proceedings that may or may not constitute an inadmissible or

deportable conviction. An immigration lawyer therefore must test the

INTRODUCTION



bounds of the law to argue that a particular offense does not trigger an

immigration consequence.

B. Immigration Law Changes Frequently [§ 1.39]

Both immigration law and case law interpretation change frequently.

This book cannot substitute for directly researching the applicable

statutes under the INA or existing case law. Appendix D, infra, contains

the statutes in the INA that relate to crimmigration, but these statutes are

only current as of the date this book was published.

C. Defense Counsel May Need to Consult with an

Immigration Lawyer [§ 1.40]

This book is intended to assist a defense attorney in (1) confirming

that the defendant is a noncitizen; (2) meeting counsel’s Sixth

Amendment duty under Padilla v. Kentucky, 559 U.S. 356 (2010);

(3) outlining the immigration consequences of Wisconsin criminal

offenses; and (4) finding alternative pleas to avoid or minimize

inadmissibility or deportability

Some cases are too complicated to resolve with this book alone.

Clients often do not want to retain two lawyers for the same case. But,

given the high stakes involved with immigration, a defense attorney

should strongly encourage a noncitizen client to also retain an

immigration lawyer while the criminal matter is still pending. The legal

fees for advising criminal defense attorneys are miniscule compared to

the fees for postconviction relief or representation in removal

proceedings. Moreover, a noncitizen convicted of an inadmissible or

deportable offense might be subject to mandatory immigration detention,

which could result in loss of a job and significant stress on the client and

family members. A deal that avoids removal proceedings and

immigration detention will pay dividends in the long run.

CHAPTER 1



D. This Book Assumes a Noncitizen Wants to Avoid

Deportation [§ 1.41]

An immigration lawyer’s principal job is keep clients in the United

States. Otherwise a noncitizen who does not want to remain in the

United States indefinitely would have little reason to hire an immigration

lawyer. This book is designed for noncitizen defendants who want to

avoid a plea that will carry an adverse immigration consequence.

Defense attorneys should not assume all noncitizen clients strive for that

goal. While it is a reasonable assumption, certain noncitizen clients

might prefer to knowingly plead to an inadmissible or deportable offense

to avoid jail time instead of losing at trial and going to jail.

Some noncitizens may only want to be in the United States for a

temporary period of time and would prefer to avoid jail time at all costs.

A defense attorney should always have an informed discussion with

noncitizen clients. What do they want to achieve? Do they have family

in the United States that a plea would trigger family separation? Do they

fear persecution in their home country? A defense attorney should

ascertain what is precisely at stake and determine what the noncitizen

client wants to achieve during plea negotiation.

VIII. Conclusion [§ 1.42]

Padilla v. Kentucky, 559 U.S. 356 (2010) represents a dramatically

new duty under the Sixth Amendment. Although immigration law may

be initially intimidating for criminal defense attorneys, this book will

serve as a guide not only to assist defense counsel in their duty under

Padilla but also to craft deals that hopefully avoid immigration

consequences all together.

1 Introduction - Wisbar

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