Last week a federal judge heard the first arguments in a lawsuit challenging certain provisions of the recently-enacted International Megan’s Law (IML),* including one mandating that the passport of any American required to register for a sex offense involving a minor be marked in “a conspicuous location” with a “unique identifier” of their sex offender status. Other challenged provisions of the law authorize the Departments of Homeland Security and Justice to notify destination nations of forthcoming visits from those individuals. On Wednesday the court heard a motion for a preliminary injunction that would block enforcement of the challenged provisions of the law pending the suit’s final outcome. See Doe v. Kerry, Case 3:16-cv-00654 (N.D. Ca.).
In an unusual case involving judicial failure to warn about the immigration consequences of a guilty plea, the Wisconsin Supreme Court has held that the likelihood of inadmissibility (as opposed to deportation) was sufficient to set aside three guilty pleas entered more than a decade before. State v. Valadez, 216 WI 4 (Jan. 28, 2016). The decision suggests that it may be possible to challenge guilty pleas years after the fact, in any jurisdiction where a statute or court rule requires the court to warn about immigration consequences before accepting a guilty plea.
What are the emerging trends in Europe and the United States in considering a person’s past criminal record for purposes of travel, work and residency? Professor James Jacobs of NYU Law School and three co-authors have just posted on SSRN a fascinating article titled Criminal Records and Immigration: Comparing the United States and the European Union. Research for the article, which will be published in the Fordham International Law Journal, shows that EU countries tend to focus primarily on public safety concerns in deciding the relevance of a criminal record for immigration purposes, including travel to and within the EU. In contrast, the United States treats criminal record as “an indelible mark of bad character” that has become “the most important determinant of who is admitted to the country, who is removed, and who is offered the privileges of citizenship.”
While many U.S. practitioners and scholars are familiar with the ways a criminal record can affect a non-citizen’s right to enter and remain in this country, they will be interested to learn more about the complex and nuanced way that a criminal record can affect immigration to as well as travel and work within the European Union and its constituent countries. The authors ask the question whether increasing efficiency in access to criminal records in the EU will bring its laws and policies closer to those of the U.S.
Most Americans can freely visit Canada. However, if you have a criminal history, you may be refused entry. This post describes the circumstances in which a criminal record (including DUIs) will result in your being inadmissible even as a visitor, how long inadmissibility lasts, and what you can do to regain the right to travel freely to Canada.
Were you convicted?
If you were convicted of a crime in the United States or abroad, this will likely make you “criminally inadmissible.” Even if you were charged with an offence but never convicted, it is a good idea to travel with all your court documents demonstrating that there is no conviction on your record. Carrying all these documents, though not required, is highly recommended to avoid any confusion or refusals at the border as the onus is on the applicant to demonstrate that they are not inadmissible.
Border officers have the option to deny admission on grounds that it is reasonable to believe a person committed an act that would be an offence in Canada, so that pending charges may be grounds for a finding of inadmissibility. A guilty plea followed by dismissal of charges pursuant to a deferred adjudication scheme may also be considered proof of commission of an act.
The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges.
Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the same kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access.
California’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights)
Prop 47 and restoration of rights
California’s recently enacted Proposition 47 fundamentally alters the landscape for a handful of lower-level felony offenses in California. As discussed by Jeffery Aaron in a previous post, Prop 47 reclassifies eight offenses as misdemeanors, including simple drug possession offenses and theft of less than $950. Anyone with a qualifying conviction, who also does not have a disqualifying prior, can now petition under Prop 47 to have a felony reclassified as a misdemeanor. The most significant and immediate relief will be for people who are incarcerated for qualifying low-level felonies and who are now eligible for resentencing and release. Public defender offices around the state are busy filing those petitions.
But, Prop 47 also allows two other populations to petition for reclassification of their qualifying felonies to misdemeanors: People who are under supervision but not incarcerated (on probation, parole, or post-release community supervision), and people whose sentences were completed long ago. This aspect of the new law presents good opportunities for tens of thousands of Californians, and not insignificant implementation challenges.
Simply by reclassifying certain offenses from felonies to misdemeanors, Prop 47 can undo some of the most serious collateral consequences. It’s clear from our experience providing reentry legal services to thousands of clients over the years that people with felony, as opposed to misdemeanor, convictions face increased barriers to employment, housing, and full and meaningful community reintegration and citizenship. For example, people with a felony conviction, even a decades-old low-level offense, can never serve on a jury in California. For many people, Prop 47 will reverse this lifetime disenfranchisement and move them one step closer to full civic engagement.
But unfortunately, many of the statuary and extra-legal barriers to successful reentry that block people convicted of felonies also apply to people with convictions for misdemeanors and criminal infractions. Consequently, Prop 47 relief alone is not a cure-all for collateral consequences, and for most people it’s not even the most important petition they can file to overcome the statutory disabilities they face. The following section describes how Prop 47 relief interacts with other California relief mechanisms. Read more
The President’s decision to take unilateral executive action to insulate certain undocumented immigrants from the immediate threat of deportation has provoked outrage in some quarters and profound relief in others. The legal issues raised by this decision are important and debatable, some of its line-drawing is problematic, and its success stands or falls on the uncertain terrain of bureaucratic discretion. No doubt its political implications are yet to be revealed.
But amid all the uncertainty, one thing is clear. In his speech announcing the initiative the President said, repeatedly and definitively, that no one with a criminal record would benefit from his reprieve. Thus, he emphasized that enforcement resources would remain focused on “actual threats to our security,” by which he meant “Felons, not families. Criminals, not children.” Again, it is possible to benefit from the law if you can “pass a criminal background check” (whatever that means), but “[i]f you’re a criminal, you’ll be deported.” Even people convicted of misdemeanors will not be spared under the new DHS enforcement priorities.
Entirely apart from the wisdom or fairness of the immigration policy choice involved in this broad blanket exclusion (and there are good reasons to be critical of it), it was disheartening to hear the President present it in such unfortunate language. The ugly labels of “felon” and “criminal” do, after all, at least technically describe a status shared by 25% of adult Americans. Labels like these serve only to demonize and exclude, and they are fundamentally at odds with our national policy of encouraging rehabilitation to reduce crime. There were other ways the President could have justified continuing his policy of deporting based on criminal record than by using words that do more to stir up fear of “the other” than to describe relevant functional attributes.
The President’s words suggest that people who have been convicted of a crime are evermore to be regarded as “felons” and “criminals,” categorically threatening to our safety and security, and uniformly deserving to be segregated and sent away. But he himself pardoned such a person less than two years ago, precisely to keep her from being deported. And he is surely aware of the bipartisan conversation now underway about the need to curb over-criminalization, one of the few matters on which Republicans and Democrats can agree. It is tempting to take linguistic shortcuts when politically expedient, but it is a temptation he might have resisted without jeopardizing his larger objective.
It is time we stopped using negative stereotypes and labels to describe people who at some point in their past have committed a crime, in the immigration context or otherwise. It is no longer acceptable to describe undocumented immigrants as “illegal aliens.” Our language needs a similar makeover where past convictions are concerned.