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Immigration and Criminal Law

Deferred Action for Childhood Arrivals and the Responsibility of Criminal Lawyers
by Mikhail Izrailev, Esq.

Since the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the onus has been on the criminal bar to ensure that their clients are made aware of the immigration consequences of their pleas. This has resulted in unheralded levels of collaboration and consultation between the criminal bar and the immigration bar. As an immigration attorney, I have witnessed first-hand the increased willingness of criminal attorneys to both ask questions and listen to the answers.

By now, many criminal attorneys have familiarized themselves, at least in some small part, with resources such as the charts provided by the Immigrant Defense Project detailing the immigration consequences of criminal convictions in New York, New Jersey, Pennsylvania, and Connecticut. Some criminal attorneys have gone a step further and familiarized themselves with terms of art which the immigration bar has struggled with for years - aggravated felonies and crimes of moral turpitude as defined under the Immigration and National Act. While these terms of art are seemingly ambiguous at times even for immigration attorneys, criminal attorneys have learned that they should consult with their colleagues in the immigration field to determine if what seems to be a simple criminal misdemeanor can result in the deportation of their clients.

The delicate relationship between criminal and immigration attorneys has been further complicated by the recent announcement of U.S. Department of Homeland Security ("DHS") Secretary Janet Napolitano concerning Deferred Action for Childhood Arrivals ("DACA"). DACA has developed as an offshoot of an official government program that has existed for approximately the last 45 years. First disclosed by the government in the mid 1970's, Deferred Action was originally known as the Non-priority program. The Deferred Action program allows the Department of Homeland Security to refrain from deporting an individual who is otherwise subject to removal. An individual granted deferred action is given the opportunity to apply for an employment authorization card, but the program is not a pathway to lawful permanent residence or citizenship. The Obama Administration's DACA program is a discretionary use of executive power to allow DREAMER's, children who arrived in the United States unlawfully at a young age, to remain in the United States under color of law.

Applicants for the DACA program must be able to meet a number of evidentiary requirements. Most importantly they must be under the age of 31 as of June 15, 2012 and they must be able to demonstrate that they have not been convicted of a felony, "significant misdemeanor," or three misdemeanors at any time. Accordingly, both criminal attorneys and members of the immigration bar have been stuck scratching their heads. What is a "significant misdemeanor?" A felony is defined as a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. Similarly, three misdemeanors at any time is a term with little ambiguity. Nevertheless, neither criminal attorneys nor immigration attorneys are familiar with the term "significant misdemeanor."

The Department of Homeland Security attempted to clarify this new term of art. A "significant misdemeanor" is an offense of domestic violence, exploitation, sexual abuse, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence, or an offense for which an individual was sentenced to time in custody of more than 90 days (not including a suspended sentence). See Consideration of Deferred Action for Childhood Arrivals. USCIS, www.uscis.gov (Sept. 14, 2012) (follow hyperlink on homepage).

Mikhail Izrailev is a graduate of the Benjamin N. Cardozo School of law, where he served as the Executive Editor of the Cardozo Journal of International and Comparative Law. Mikhail is an associate with Wildes & Weinberg, PC, a firm which has been exclusively dedicated to the practice of immigration and nationality law for the last 52 years. The author can be reached at mizrailev@wildeslaw.com and encourages his colleagues in the criminal bar to reach out to him with questions.

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