This In Sharper Focus Guest Post by Cleveland attorney Harlan D. Karp is a verbatim reproduction of part of the amicus brief of Concerned Ohio Immigration Attorneys authored by Karp with the help of Cleveland practitioners Tina Haddad and Tanya Linetsky, filed in State v. Kona in support of Kona. This provides a superb overview of federal immigration law, and is crucial background for understanding the oral argument in the Kona case, which will be posted later.
Overview of Federal Immigration Law
Criminal matters have immigration consequences for non citizens that differ from those of U.S. citizens. A U.S. citizen convicted of robbery faces incarceration and fines (direct consequences) and the loss of the right to vote while incarcerated (a collateral disability). Non U.S. citizens [ranging from lawful permanent residents, non-immigrants visa holders (workers or visitors), or the undocumented ], face additional collateral immigration ones (deportation, inability to become a permanent resident, or the inability to become a U.S. citizen). Although deportation may result in loss of all that makes life worth living (banishment from the United States and forced separation from one’s family), Ng Fung Ho v. White,259 U.S. 276 (1922), and is “close to punishment,” Galvan v. Press, 347 U.S. 522 (1954), the law regards immigration consequences as collateral, civil matters.
In 1989, the Ohio Legislature required that immigration advisements must be part of the criminal justice process. Three immigration concepts are mentioned in R.C. 2943.031: “naturalization,” “exclusion from admission” (now called “admissibility” or “admission”), and deportation (now called removal).
Immigration law is enforced by a number of federal agencies, including, the U.S. Department of Homeland Security, U.S. Customs & Border Protection (CBP), the U.S. State Department, and the U.S. Department of Justice. The relevant immigration laws are found in the Immigration and Nationality Act (“INA”) , codified in Title 8 of the U.S Code, and in implementing regulations codified in 8 C.P.R.
Naturalization refers to the process by which a lawful permanent resident alien obtains United States citizenship. A lawful permanent resident does not have the full rights of a U.S. citizen (voting, holding a U.S. passport, travelling back into the U.S., not being deported). Permanent residents may apply for U.S. citizenship if they are 18 years or older, have accrued five years of continuous permanent residency, and prove they have the requisite “good moral character” during the relevant look back period. INA 316, 8 USC 1427; 8 C.P.R. 316.10(a). Many criminal convictions result in a finding of a lack of good moral character and/or placement in removal proceedings. 8 C.P.R. 316.1O(b)(2)(i), (b)(2)(iv). These crimes are called crimes of moral turpitude (e.g., felonies, theft, stealing); any drug-related offense (other than single possession of 30 grams or less of marijuana), domestic violence offenses, and firearms offenses. Robbery is an aggravated felony under INA 101(a)(43), 8 USC 1101(a)(43) that results in permanent ineligibility for U.S. citizenship. 8 C.P.R. 316.1O(b)(I)(ii).
Exclusion from Admission (Admissibility).
To lawfully enter the United States, or to convert from various immigration status categories (temporary worker to immigrant or permanent resident), an applicant must be admissible. See INA 212(a), 8 USC 1182(a). Pre 1996, the INA had exclusion proceedings,1 which were performed at the port of entry (airport, sea port, or land border post). Many non U.S. citizens enter on non-immigrant visas (tourist, student, temporary worker), no visa (visa waiver), or illegally (entering without inspection). Many criminal convictions are bars to admission for non U.S. citizens. See generally INA 212(a)(2)(crimes), 8 U.S.C. 1182(a)(2).
Since 1996, this is now called “removal.” INA 237-240. For 100 years, the term was known as deportation. When the government seeks to expel or banish a person from the United States, it initiates a removal proceeding with the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR). The proceeding begins with the issuance of a charging document, a Notice to Appear (formerly called an Order to Show Cause), an appearance in Immigration Court before an Immigration Judge. Many types of crimes- usually felonies- but sometimes, certain misdemeanors (such as two petty theft convictions), will trigger a removal or deportation proceeding.
In 1996, Congress substantially amended the INA through the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (herein called “IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009. The 1996 law rewrote and redefined a century of terminology and caselaw.
A Uniform Federal Definition of “Conviction ” For Immigration Purposes
IIRIRA Section 322 added a federal definition of “conviction” for convictions under both state and federal law. It is found in INA§IOI(a)(48)(A), 8 U.S.C. 110l(a)(48)(A). The federal immigration definition of “conviction” differs dramatically from the normal under- standing of Ohio’s bench and bar as to what constitutes a conviction under state law. In Ohio, as in many states, a conviction is the Court’s judgment (either from a plea or decision of the trier of fact) plus imposition of a sentence, found in a court’s judgment. Cf. Crim.R. 32(C).
Not so in the immigration world. Prior to 1996, there was no definition of conviction in the INA. See Matter or Roldan (BIA 1999),2 Int. Dec.# 3377,22 I&N Dec. 512, 514-15 (see http://www.ju stice.gov/eoir/vll/intdec/vol22/3377.pdf.) (en banc)(“this Board, with direction from the Supreme Court and the Attorney General, struggled for more than 50 years to reconcile its definition with the increasing numbers of state statutes providing ameliorative procedures affecting the finality of a conviction under state law”). The 1996 version of INA 101(a)(48)(A) derives from the three prong test ofthe Board ofimmigration Appeals in Matter ofOzkok, 19 I&N Dec. 546, 551-52 (BIA 1988)(available at http://www.justice.gov /eoir/vll/intdec/voll9/3044.pdf).
In Ozkok, the BIA modified its precedent and established a three prong test for a conviction to be a conviction for immigration purposes: All three prongs had to be met:
- the judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;
- The judge has ordered some form of punishment, penalty, or restraint on the person ‘s liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation program, a work-re lease or study-release program, revocation or suspension of a driver’s license, deprivation of nonessential activities or privileges, or community service); and
- A judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court’s order, without availability of further proceedings regarding his guilt or innocence of the original
Matter of Roldan, 22 I&N Dec. at 516-517 (quoting Matter of Ozkok, 19 I&N, at 551).
Immigration Conviction Codified in 1996
In 1996, Congress defined “conviction” for immigration purposes: it adopted Ozkok’ s first two prongs – but eliminated its third. The federal statute reads, in relevant part:
(A) The tetm “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court, or, if adjudication of guilt has been withheld, where-
- a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and,
- the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
IIRIRA, Pub. L. No. 104-208, § 322(a)(1) (1996), codified as 8 USC 1101(a)(48)(A).
The House Conference Report provides the reasons Congress rejected Ozkok’ s third prong: See Matter of Punu (BIA 1998), 22 I&N Dec. 224, 227 (en banc) (available at http://www.justice.gov/eoir/vll/intdec/vol22/3364 .pdf):
“It broadens the definition of ‘conviction’ for immigration law purposes to include all aliens who have admitted to or been found to have committed crimes. This will make it easier to remove criminal aliens, regardless of specific procedures in States for deferred adjudication ….” H.R. Rep. No. 104-879 (1997), available in 1997 WL 9288 at *295. Thus, it is clear that Congress deliberately modified the definition of conviction to include deferred adjudications. 22 I & N Dec. at 227 (Emphasis supplied.)
Likewise, in Matter of Roldan (BIA 1999), Int. Dec. #3377 (en banc):
Ozkok… does not go far enough to address situations where a judgment of guilt or imposition of sentence is suspended, conditioned upon the alien’s future good behavior …In some States, adjudication may be “deferred” upon a finding or confession of guilt, and a final judgment of guilt may not be imposed if the alien violates probation until there is an additional proceeding regarding the alien’s guilt or innocence. In such cases, the third prong of the Ozkok definition prevents the original finding or confession of guilt to be considered a “conviction” for deportation purposes. This new provision, by removing the third prong of Ozkok, clarifies Congressional intent that even in cases where adjudication is “deferred,” the original finding or confession of guilt is sufficient to establish a “conviction” for purposes of the immigration laws.
Matter of Roldan, at 518 [quoting H.R. Conf. Rep. No. 104-828, at 224 (1996)(Joint Explanatory Statement)].
“Some form of Punishment, Penalty, or Restraint on Liberty.”
INA 101(a)(48)(A)(ii)’s language: the judge has ordered “some form of punishment, penalty or restraint on liberty” is satisfied by being on probation, payment of a fine, restitution- even payment of court costs. Matter of Ozkok, prong 2 [codified by§ 101(a)(48)(A)]. Thus, that matter would be easily satisfied here 3.- contrary to the State’s argument in its jurisdictional memorandum .
Commentators summarize the situation:
In the world of immigration law, a “conviction” is not limited to a formal plea of guilt or a verdict or finding of guilt by a judge or jury, as it is under state law. Instead it encompasses a wide variety of dispositions that might surprise prosecutors and defense attorneys alike.* * * A pretrial diversion program is often lauded as a progressive concept and allows first-time offenders to rehabilitate and reintegrate into society. In a pretrial diversion program, the defendant is usually required to attend classes, complete community service, or perform other related rehabilitative acts. When the defendant completes the assigned tasks satisfactorily, the prosecutor dismisses the charges. For a U.S. citizen defendant, the benefits of having no conviction on his or her record as well as a chance to start over and make better choices are obvious. For an alien defendant, however, completing a pretrial diversion program does not necessarily eliminate the threat of deportation. An alien’s participation in a pretrial diversion program will most likely avoid a conviction for immigration purposes if the prosecutor does not require an admission of guilt as a prerequisite for participation in diversion programs. As discussed above, an admission of guilt coupled with any restraint on liberty-such as having to complete a specified drug or alcohol awareness program-is a conviction under immigration law. If a prosecutor requires an admission of guilt to enter a pretrial diversion program and this admission is recorded, then for immigration purposes the alien’s participation in pretrial diversion is deemed a conviction all the same. This is true even if, as a result of successful completion of the diversion program, the prosecutor drops the charges. While the purpose of pretrial programs is to permit first-time offenders to rehabilitate without any criminal record on their file, where admission of guilt is required to participate, the result has been that aliens who participate in these programs have a conviction for immigration purposes and may be deportable depending on the type of crime committed.
D. Shenoy and S.O. Khakoo, (2008) “One Strike and You’re Out! The Crumbling Distinction between the Criminal and the Civil for Immigrants in the Twenty-first Century,”35 William Mitchell Law Review 151-52,159 (2008). (Footnotes omitted).
Expungements And Sealing Of Records.
One might properly ask, but doesn’t expungement and/or sealing a conviction get rid of the “admission a/k/a “conviction” for federal purposes? No, it does not. Federal immigration law holds that an expungement of a conviction does not remove its immigration consequences: for immigration purposes, it is still a conviction. In Matter of Roldan, 22 I&N Dec. 512 (1999), the BIA held that a state court action to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” has no effect. See, e.g, Herrera-lnirio v. INS, 208 F.3d 299, 306 (1st Cir. 2000)(Congressional emphasis on original admission of guilt means subsequent dismissal of charges based solely on rehabilitative goals, not a defect of the underlying criminal proceedings , does not vitiate original admission).
Contrast that with R.C. 2953.52(B)(4)(sealing), which deems such proceedings as not to have occurred (although they may be used to determine whether pretrial diversion is appropriate under R.C. 2935.36 –see R.C. 2953.53.)
While a conviction vacated solely for ameliorative purposes of immigration consequences of a criminal conviction still remains a valid conviction triggering deportation/removal, a conviction vacated because of legal defects (substantive or procedural) in the underlying proceeding no longer constitutes a conviction for immigration purposes. See Matter of Adamiak (BIA 2006), 23 I&N Dec. 878, available at (http://www.justice.gov /eoir/vll/intdec/vol23/3525.pdf and applying R.C. 2943.031).
The BIA held:
The Ohio court’s order permitting withdrawal of the respondent’s guilty plea is based on a defect in the underlying proceedings, i.e., the failure of the court to advise the respondent of the possible immigration consequences of his guilty plea, as required by Ohio law.
Thus, the BIA has recognized, consistent with this Court’s decision in State v. Francis, that Ohio’s C. 2943.031 remedies a substantive defect in the underlying proceeding.
Ohio Law- Pretrial Diversion
The Ohio Pretrial Diversion Statute states in pertinent part:
The prosecuting attorney may establish pre-trial diversion programs for adults who are accused of committing criminal offenses and whom the prosecuting attorney believes probably will not offend again. The prosecuting attorney may require, as a condition of an accused’s participation in the program, the accused to pay a reasonable fee for the supervision services that include, but are not limited to, monitoring and drug testing. The programs shall be operated pursuant to written standards approved by journal entry by the presiding judge or, in courts with only one judge, the judge of the court of common pleas. R.C. 2935.36(A)(Emphasis supplied).
The diversion statute requires the accused to waive, in writing, the right to a speedy trial, the right to a preliminary hearing, the time period which the grand jury may consider the indictment against the accused, and the arraignment, unless the arraignment already has occurred. The accused agrees, in writing, to tolling of the periods of limitations by statutes and rules of court applicable to the offense, and agrees, in writing, to pay “any reasonable fee for supervision services established by the prosecuting attorney. R.C. 2935.36(B).
Thus, INA Section 101(a)(48)(A)(ii) is satisfied by payment of reasonable fee for supervision services, monitoring, drug testing, and even court costs.
City of Cleveland v. Mosquito, 10 Ohio App.3d 239, (8th Dist. 1983) (per curiam) recounted the legislative history of R.C. 2935.36 . The Court described the success of the City of Cleveland’s Selective Intervention Program in the early 1970’s, Ohio Attorney General’s favorable opinion (1976), and the Legislature’s adoption of2935.36 in 1978 as part of H.B. 473:
Effective June 6, 1978, the General Assembly enacted R.C. 2935.36 authorizing prosecuting attorneys to establish pretrial diversion programs for certain offenders. The new law provided that the programs shall be operated pursuant to written standards approved by journal entry by the judiciary. The statute therefore calls for cooperation between the court and the prosecution to effectuate the program. The Cleveland plan was established by the court with the prosecutor’s participation and acquiescence. It is to be noted, too, that under Section 2 of H.B. No. 473, the Bill which statutorily recognized the statewide pretrial diversion program, there is a “grandfather clause” preserving similar programs in existence on the effective date of the statute.
The Mosquito Court correctly concluded that this program requires cooperation of two branches of government – it is neither solely the prerogative of the Executive or Judicial branch. In State v. Battersby, 2008-0hio-836 (11th Dist) at ¶¶ 16-17, the Court recognized the prosecutor’s role and the courts: the court allows the Defendant to participate in diversion, and, upon the prosecutor’s recommendation and motion, dismisses the matter).
The Ohio statute does not mandate that a prosecutor require the participating defendant to “admit guilt.” The statute is silent. The Legislature did not mandate that the prosecution create, or the court tolerate, a trap for non-citizens, have them confess guilt, complete the program, and end up deported. 4
The existing criminal procedures of arraignment, election of pleas, the providing for preliminary hearing where the accused does not have to incriminate himself/herself, and judicial acceptance of pleas all offer protections to the accused. These protections include the immigration advisement statute. See R.C. 2943.031; also R.C. 2937.12 (accused may make a statement- not under oath, to explain evidence). When the prosecutor and court graft a new program- it should not spring a trap that violates the right against self-incrimination and trigger dep01tation and permanent denial of naturalization.
Ohio’s Immigration Advisement Statute, R.C. 2943.031.
R.C. 2943.031, the “advisement statute” was enacted in 1989 in this background — a fluid definition of conviction for immigration purposes, along with the increasing harshness and retroactive application of immigration laws. Defendants pled no contest to crimes that were not deportable crimes when they pled; Congress retroactively changed the rules of the game.
Ohio attorney Richard I. Fleischer must be acknowledged for his role. As an attorney and immigration practitioner, Mr. Fleischer saw the collateral consequences of criminal convictions to non U.S. citizens and decided, commendably, to do something about it, and have the Legislature adopt remedial legislation. He approached Ohio Senator Barry Levey (Rep. Middletown), who sponsored the bill that became R.C. 2943.031. Mr. Fleischer testified before the relevant committee of the Ohio General Assembly. In a bi-partisan and relatively uncontested fashion, the General Assembly adopted R.C. 2943.031 . 5
This Court comprehensively addressed R.C. 2943.041 in State v. Francis, 104 Ohio St.3d 490, 2004-0hio-6894. In State v. Yanez, 150 Ohio App.3d 510, 2002-0hio-7076 (1st Dist.), the Court recognized, R.C. 2943.031 was enacted in response to Congressional measures limiting potential deportation relief for convicted felons. !d., 2002-0hio-7076 at ¶ 7. Ohio’s statute is similar in scope to 18 other jurisdictions’ statutes/court rules as of 2001. Francis, 2004-0hio-6894, at 25 [citing Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 322, fn 48 (2001)]
The advisement is a “unique statute,” State v. Tabbaa, 151 Ohio App.3d 353, 2003-Ohio-299, at 52 (Karpinski, J., dissenting); Yanez, 2002-0hio-7076 at 29 (Gorman, J.)(“We find no other criminal statute in which the General Assembly has used quotation marks to designate the trial court’s colloquy with a defendant.” ) R.C. 2943.031 does something quite atypical from Ohio statutes and court rules (postconviction, Crim. Rule. 32.1, Civ.R. 60(B)), which place strict limitations on vacating convictions and judgments (criminal or civil). R.C. 2943.031 creates a substantive right for a defendant- to have a remedy to a substantive defect in the criminal proceeding – a collateral matter -that often arises years latter. When a non-citizen properly invokes the advisement statute, the trial court shall vacate the guilty or no-contest plea- similar to R.C. 3119.961 et seq.)(vacating a child support order in certain circumstances). The statute does not have any express time limits (although timeliness may be a factor); it provides a more relaxed standard than Crim.R. 32.1’s manifest injustice standard. Francis, 2004-0hio- 6894 at ¶¶ 26-27,40-43. Like R.C. 3119.961 and R.C. 2953.21 (post conviction relief), it provides an independent procedure, available post-judgment; it allows a challenge to a substantive defect in the underlying proceedings.
This Court in Francis held that the advisement statute created a substantive right for the defendant and addressed a substantive defect in the criminal proceeding for this class of criminal defendants. The statute implements, on a statutory basis -the Fifth Amendment ( knowing, voluntaty and intelligent pleas or admissions of guilt) and the ancient right against self-incrimination; and the Sixth Amendment right to effective assistance of counsel. The burden is on the trial judge – not the accused’s lawyer, to perform the advisements . R.C. 2943.03l(A) states:
[P]rior to accepting a plea of guilty or a plea of no contest to an indictment***, the court shall address the defendant personally, provide the following advisement to the defendant that shall be entered in the record of the court and determine that the defendant understands the advisement:
“If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
Upon request of the defendant, the court shall allow him additional time to consider the appropriateness of the plea in light of the advisement described in this division.
The statute is concerned with protecting one of the five Boykin rights that trial judges must strictly state in a colloquy with a defendant under Crim.R. 11 (C)(2) —State v. Veney, 120 Ohio St.3d 176 (2008)(discussing Boykin v. Alabama, 395 U.S. 238,243 (1969)) and due process rights of knowing, voluntary, and intelligent dispositions. In a felony case, the Court may not accept a plea of no contest to an indictment at the aiTaignment. R.C. 2937.06. It must wait for further proceedings, such as the preliminary hearing (or waiver of that hearing) before a court could get to that point . R.C. 2937.09 -2937.12. A change of plea from not guilty to no contest or guilty is an admission, implicates the right against self-incrimination, and must not be lightly done.
There is a Sixth Amendment component to the immigration advisements. Under the U.S. Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010) counsel’s failure to warn the defendant of the immigration consequences could be deemed ineffective assistance of counsel (at least in states without the advisement statute) and in cases, post 2010, where the advisements have not been done.6
- The 1996 changes created a summary removal procedure at the port of entry that superseded the old exclusion proceeding. ↩
- The Board of Immigration Appeals (“BIA”) is part of the Department of Justice’s Executive Office for Immigration Review (EOIR). It hears appeals from matters from immigration judges and its panels construe immigration statutes. Until overridden by the federal courts, BIA decisions and rulings on federal immigration law are binding on immigration agencies. ↩
- The State of Ohio’s jurisdictional memorandum, p.9, states that there was no penalty or restriction on liberty. This is incorrect ↩
- The National Association of Pretrial Services Agencies discourages conditioning eligibility in pretrial diversion/intervention programs on a formal plea of guilty. Standards 4.1 and 4.3 (available at www.napsa.org/publications/diversion_intervention_standards_2008.pdf) ↩
- October 31, 2014, Mr. Fleischer shared with undersigned his recollections. ↩
- Courts have held Padilla applies prospectively rather than retrospectively; some have held that where the Court gives the immigration advisement, the Padilla claim fails. See, e.g., State v. McCubbin (2014), Cuyahoga No. 100944, 2014-Ohio-4216 at ¶16 (“This court has repeatedly held that the trial court’s R.C. 2943.031(A) advisement that the defendant may be deported as a result of his plea, is sufficient to overcome any prejudice caused by counsel’s failure to properly advise the defendant)(citing cases, including State v. Lababidi, Cuyahoga No. 96755, 2012-Ohio-267 (majority); but see Lababidi, Gallagher, J., concurring (noting distinct Fifth and Sixth Amendment claims and requesting Ohio Supreme Court clarification in light of R.C. 2943.031.) ↩