Tag: immigration

Challenge to “Scarlet Letter” travel law moves forward

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.). As the Wall Street Journal reported, The lawsuit’s plaintiffs say the law violates the U.S. Constitution by forcing people convicted of sex offenses to bear the equivalent of a “proverbial Scarlet Letter” on their passports. The First Amendment limits what the government can compel people to divulge. The complaint asks a federal judge to strike down the law as unconstitutional. The suit, filed in early February, also claims that the law violates the Fifth Amendment’s due process protections and the Constitution’s Equal Protection and Ex Post Facto Clauses. As stated in the complaint, the IML imposes significant burdens on the rights and protected liberty interests of Covered Individuals, including the right to international travel, the right to associate with family, economic liberty, and equal protection. Further, the IML stigmatizes Covered Individuals in a manner that substantially infringes on their protected liberty interests by communicating that Covered Individuals pose a current risk to public safety because they are engaged in, or at risk of engaging in, international child sex trafficking. Ostensibly, the IML is meant to curtail international child sex trafficking and sex tourism, but it will undoubtedly effect a huge number of Americans who pose little or no risk of engaging in such activity. From the Journal: The law, signed by President Barack Obama on Feb. 7, could cover a wide swath of offenders, including people convicted of misdemeanor offenses such as “sexting” with a minor, according to the lawsuit, which identifies the seven plaintiffs by the pseudonym John Doe. …. International Megan’s Law doesn’t allow for offenders who states have deemed rehabilitated, or who have had their records expunged to have the passport mark removed, according to [the plaintiffs’ attorney]. Nor does it exempt those who were minors at the time of their offense. Nicole Pittman, director of the Impact Justice Center on Youth Registration Reform, an Oakland, Calif., group pushing to eliminate the practice of placing children on sex-offender registries, said about [200,000] of the roughly 850,000 people registered as sex offenders in the U.S. were under the age of 18 when they were convicted or adjudicated in juvenile court. “This is supposed to protect kids and we’re actually hurting them,” Ms. Pittman said of International Megan’s Law. “We have kids going on the registry for sending nude pictures of themselves.” The Journal reports that many American sex offenders have been subjected to a similar “travel blacklist” for nearly a decade under an Immigration and Customs Enforcement (ICE) program called Operation Angel Watch: U.S. Immigration and Customs Enforcement agents launched Angel Watch as a pilot program in California in 2007. Under the program, ICE shares publicly available information from U.S. sex-offender registries with its foreign counterparts “to utilize as they deem appropriate,” according to a summary of the program turned over in response to a Freedom of Information Act request. [The federal Adam Walsh Child Protection and Safety Act of 2006] requires registered sex offenders to notify local law-enforcement authorities of their plans to travel abroad at least 21 days in advance. In fiscal 2014, ICE sent 2,291 notifications to authorities in more than 120 countries, up from 637 alerts in 2012, the summary shows. Mexico accounted for more than half of the Angel Watch notices in 2014, while the Philippines, the next highest, received about 15%, according to the summary. Nearly 500 of the travelers flagged by Angel Watch were denied entry into their destination country that year, the documents show. The IML essentially codifies and expands upon the existing “Angel Watch” program.  From the Journal: Homeland Security officials and lawmakers said the International Megan’s Law would bolster the program. “The countries of destination lack sufficient resources to deal with the rising number of child predators,” Rep. Ed Royce, (R., Calif.) chairman of the House Foreign Affairs Committee, said while introducing the bill in January. The passport identifier requirement is a major expansion of the pre-existing policy, and one that has no precedent under U.S. law, according to the complaint: “For the first time in the history of the United States, American citizens will be forced by the government to label and stigmatize themselves on a document foundational to citizenship.” Regardless of the ILM’s constitutionality or desirability, the fact that such a sweeping law was ushered through Congress with little debate and no real opposition is indicative of the the unique stigma reserved for those that the law brands as “sex offenders.”  That the President was willing to sign such constitutionally problematic legislation speaks volumes about his disposition to pick a fight at this stage of his presidency. A ruling on the motion for a preliminary injunction has not yet been issued. We will continue to provide updates as the litigation moves forward. The plaintiffs’ complaint is available here and links to additional commentary are listed below. International Megan’s Law: America’s Global Embarrassment (Huffington Post) An important step to reduce child sex tourism (Rep. Chris Smith (R – N.J.), sponsor; Washington Post) The yellow star, the scarlet letter, and ‘International Megan’s Law’ (Volokh Conspiracy) Do sex offenders deserve a scarlet letter on their passport? (L.A. Times)       *The law’s full title is “International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders” Read more

Wisconsin court rules for non-citizen years after her plea

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. Melisa Valadez became a lawful permanent resident of the United States in 2001, at age 15. At age 19, she was convicted in three cases of drug-related offenses. In all three cases, the Wisconsin state court failed to provide statutory warnings that a plea of guilty or no contest could carry adverse immigration consequences. (The case was decided under Wisconsin Statute 971.08(1)(c), which requires the court to warn about immigration consequences prior to accepting a plea, and so does not implicate the right to counsel as applied in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010)). After serving jail time and successfully completing probation, Ms. Valadez had no subsequent convictions. In 2013, she filed a motion to withdraw her guilty pleas, arguing that the convictions would likely result in her exclusion from (denial of admission to) the U.S. if she were to leave and then seek to return. The State argued that, because she was not threatened with deportation, she had not demonstrated a likelihood of an adverse consequence, which is a statutory requirement for relief when the court has failed to provide the immigration advisal. The Wisconsin Supreme Court held that by showing that exclusion was likely under the applicable federal statutes, Ms. Valadez had satisfied the likelihood requirement regarding an adverse impact.  She did not need to leave the U.S. and actually suffer the adverse consequence of exclusion. By contrast, when relying upon a likelihood of deportation as the pertinent adverse consequence, a defendant must allege specific facts to show a causal connection between the conviction in question and the likelihood of a deportation proceeding (a burden difficult to meet if immigration authorities have not detained the defendant or initiated deportation proceedings). Although the intermediate court of appeals had raised the issue of timeliness of the defendant’s motion, the parties agreed that even if a time limit might be appropriate in other circumstances, Ms. Valadez was entitled to a ruling on the merits of her motion. This case underscores the importance of potential immigration consequences to non-citizen defendants in criminal cases. In the context of plea negotiations, the defense attorney has a constitutional responsibility to provide accurate information about these consequences, and by statute the court must give the basic notice that a guilty or no contest plea may result in adverse consequences. Read more

Criminal records and immigration in Europe and the U.S.

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. The abstract follows: As the revolution in information technology has made individual criminal history records more comprehensive, efficient and retrievable, an individual’s criminal history has become increasingly significant, triggering a broad and severe range of collateral consequences. There is no better example of this phenomenon than immigration law and policy, where developments in data storage and retrieval converge with opposition to immigration, especially to immigrants who bear a criminal stigma. In debates in the United States over immigration reforms, even those politicians and legislators who advocate more liberal immigration policies generally concede the desirability of excluding those with serious criminal records from eligibility for new benefits or status. In the European Union, by contrast, although a criminal record may impact an individual’s ability to travel to or reside in a European Union country, it is not as readily dispositive of immigration outcomes. As immigration policy evolves on both sides of the Atlantic, a key question for policymakers is about whether we screen for criminal records in order to protect the public safety or as a way to mark those with criminal records as somehow less deserving of immigration rights and benefits. This article details and compares the ways that the United States and the European Union use criminal records (including both conviction records and, in the U.S., some arrest records) for immigration purposes.  The article also outlines guidance for policymakers in both jurisdictions. Professor Jacobs’ recent book The Eternal Criminal Record was reviewed on this site last summer.  His co-authors on the Fordham article are Dimitra Blitsa of the Greek National School for Judges, Lauryn P. Gouldin of Syracuse University Law School, and Elena Larrauri of the Universitat Pompeu Fabra (Department of Law). . Read more

Canadian travel restrictions based on criminal record

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. Canadian border officers have access to the NCIC which is a national database kept of all criminal convictions in the United States.  Upon presentation of a passport or enhanced drivers license, the database can be accessed, this is how the Canadian border officers know about arrests, charges and convictions for offences in the United States. If you were convicted of an offence, or if a border officer has reason to believe you committed an offence, you may be inadmissible. Depending on the following factors, you may require an application made the Canadian government, to be able to travel to Canada.  These  factors include the following: The nature of your offence: were drugs or weapons involved, did the offence involve a minor, was the offence of a sexual nature – these are all factors that make it more difficult to travel & will likely require permission from the Canadian government, as these types of offences typically carry a maximum sentence of 10 or more years, under Canadian law and are therefore considered “serious criminality”. The number of offences on your record: individuals with only one offence may be deemed rehabilitated simply by the passage of time – please see below. A person with more than one conviction will have to apply in order to cross the Canadian border. The date of completion of sentence, including payment of fines, completion of probation – this factor determines which application will be applicable to your situation. If you must apply in order to resolve your admissibility, applications are processed at the discretion of an immigration officer.  The likelihood of success also depends on the factors listed above in addition to the requirements of each application listed below. Temporary admissibility – Temporary Resident Permits If you completed all the terms of your sentence 1-5 years ago, you will require a Temporary Resident Permit (TRP). A TRP acts as a temporary pass which allows you to enter Canada, but it does not erase your inadmissibility. For these applications, you need to include a specific reason for travelling to Canada. For example, you have been convicted of a DUI in the last 5 years but need to come to Canada for work purposes, a TRP can help you temporarily overcome your inadmissibility. A TRP can be used for a wide range of purposes though not as an avenue for permanent residency. When applying for a TRP, you will need to detail the exact circumstances for travelling to Canada. Your need to enter Canada must be greater than the potential threat you pose to Canadian society. Good reasons to travel include business, school, or visiting a spouse or family member. Though you can apply for multiple entry TRPs, you cannot use a TRP to help you enter Canada forever. Criminal Rehabilitation If you completed all the terms of your sentence 5-10 years ago, you are eligible to apply for Criminal Rehabilitation. This application is a permanent solution which clears your criminal inadmissibility and automatically makes you eligible for multiple entries into Canada. Processing times are longer for this application, but Criminal Rehabilitation is valid for the rest of an applicant’s life (unless another offense is committed). In this application the officer is looking to see that the applicant has taken positive steps to rehabilitate themselves, such as following substance abuse programs or joining AA, for example.  The eligibility period is required as the Canadian government wants to ensure that there are no offences within the last 5 years before they remove your inadmissibility permanently.  Due to processing times, if you have urgent travel, it is recommended to also apply for a TRP while you await the approval of your Criminal Rehabilitation. These permits are good if you travel to Canada frequently. “Deemed Rehabilitated” If you only have one offence on your record, the sentence was completed over 10 years ago, and the offence was “non-serious” (punishable by less than ten years in prison under Canadian law), you will be “Deemed Rehabilitated.” This means that you will neither require a TRP nor Criminal Rehabilitation. In these specific cases, you will have been deemed criminally rehabilitated simply by the passage of time. However, Deemed Rehabilitation can only occur under these specific circumstances, so be sure to check your record carefully. All of these applications can be done without the assistance of an attorney, however if you choose to seek the help & advice of an attorney, you should be aware that only a Canadian lawyer, notary or consultant is legally authorized to represent you.  It is highly recommended to obtain a national fingerprint based background check from the FBI, which will show all of the offences on the applicant’s record, going back to their 18th birthday.   In cases where an application is not required (ie: if a person is deemed rehabilitated by the passage of time or there was no conviction) it is recommended to carry a legal opinion letter, written by a Canadian attorney who has reviewed your record, as well as your court documents, to avoid any hassle at the border. Severity of Offences and Border Security The decision to admit a foreign national to Canada is entirely at the discretion of the Canadian immigration officer at the border.  Though you can be denied entry for any level of criminal activity, your likelihood of being able to enter Canada declines the more offences you have and the gravity of the offences. Individuals are assessed at the border on a case-by-case basis based on the information provided to the Canadian Border Services Agency. As such, sometimes individuals with lesser offences get turned away at the border if they are not carrying any kind of a permit with them. Canadian border officials have access to the National Crime Information Centre database which logs all crimes monitored by the FBI and as such will have a full list of crimes committed in the United States. As such, it is always a good idea to apply for one of these permits if you have a criminal history, or if you are on parole or probation. The severity of a foreign offence is weighed based on its equivalence under Canadian law. In the United States, offences are either felonies or misdemeanors which translate roughly to indictable and summary offences in Canada (note however that this is the general process—you should always check for your specific offence). For example, a single DUI in the US is generally considered a misdemeanor, and in Canada would be a summary offence unless someone was injured. Hybrid offences for charges like assault are left to the discretion of the prosecutor. As such, even if someone has only been convicted of a misdemeanor in the United States, it may still be an indictable offence in Canada and they may be inadmissible. DUIs DUI convictions and all variations are grounds for inadmissibility to Canada, as the offence is a hybrid offence under Canadian law. Individuals with a DUI conviction (or DWI, OWI, OMVI, DWAI or any other similar driving offence) will require either a TRP or Criminal Rehabilitation to enter Canada. Even though these may be considered as misdemeanors in some cases or in some U.S. states, they will render an individual criminally inadmissible to Canada. Completing your application Though the applications can be done by the applicants, they are complicated and lengthy. One mistake on an application can lead to a refusal or delays of several months. As such, though it is not required to hire an attorney, it can be greatly beneficial. Make sure you utilize an attorney who is in good legal standing with their provincial Bar Association. Additional travel tips Don’t forget that all adults travelling between Canada and the United States will require a passport! (Note: Children under the age of 15 can travel with a certified copy of their birth certificate if accompanied by their parents on land travel only.) If you travel frequently and don’t have a criminal record, you may want to get a NEXUS card which will help facilitate travel at ports of entry between Canada and the United States. Be prepared to declare all items of value—fines are much more costly than the duty and taxes you would otherwise have to pay. If travelling by land, check your border wait times ahead of time to ensure minimal delays and smooth passage. Read more

Criminal records and the Obama immigration initiative

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. The advisory explains DAPA thus: DAPA offers benefits similar to the Deferred Action for Childhood Arrivals (DACA) program that has existed since 2012. It provides “deferred action,” which means that, even though the individual is undocumented and subject to deportation, the government agrees to “defer” any actions to remove them. While deferred action does not provide a pathway to lawful permanent resident status (a green card) or citizenship, it will allow recipients to remain in the U.S. and obtain an employment authorization document that will entitle them to work here legally. The DAPA crimes bars are similar to those under the DACA program, in making ineligible for relief anyone convicted of a felony, a “significant” misdemeanor, or three misdemeanors. But what constitutes a disqualifying felony and misdemeanor differs under the two programs. Also it is clear that juvenile dispositions and expunged convictions are not an absolute bar to DACA, but this has not yet been clarified for DAPA. (Other than these special deferred action programs, expungement has little effect in immigration proceedings.) A DAPA-disqualifying “aggravated felony” may include some misdemeanors, if a sentence of a year or more was imposed (including suspended sentences), or if it involves sexual abuse or fraud exceeding $10,000.  “Significant” misdemeanors include domestic violence, unlawful possession of a firearm, drug sales, burglary, DUI, or any case where the sentence imposed is 90 days or more (excluding suspended sentences).  Convictions or conduct relating to a “criminal street gang” as defined in 18 U.S.C. § 521(a) are also a bar to DAPA. A state crime of which immigration status is an essential element will not be disqualifying, but a federal immigration offense (such as illegal re-entry) is likely to be. The advisory suggests defense strategies to avoid a disqualifying disposition, including negotiating for pre-plea diversion or deferred sentencing, for consecutive sentences of less than 90 days each,or for a more severe non-jail sentence in exchange for a reduced charge. Counsel are advised to explore reducing a felony to a misdemeanor, where that is permitted under state law, as in California and Indiana. Multiple misdemeanor convictions arising from the same incident only count as one conviction, for purposes of the bar based on three misdemeanor convictions. The advisory contains links to a variety of other practice resources for defense attorneys representing non-citizens, including an advisory for clients potentially eligible for DACA. Read more