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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Introduction To Representing Noncitizens In Removal Proceedings: Part 2 of 5

by Michael J. Boyle

GET THE RECORDS

It is critically important to get your client's criminal records. First, you need the Notice to Appear (NTA), the charging document in an immigration proceeding. Then, you need the client's entire record, not just the record for the most recent offense or the offense the DHS is charging on the NTA. It is common for the DHS to initially charge only one or two offenses. However, they can and do amend the Notice to Appear to add new offenses, so you need everything. You need it now, because you are unlikely to get repeated continuances and because you need to know the full picture to plan your defense and assess the viability of the client's case. Except in extremis, do not rely on your client's or a friend or relative's account of his past offenses.

For state offenses, you need to learn what kinds of records are available, and how to request them. The information or indictment, judgment of conviction, and plea colloquy or trial transcript are typical conviction records that will be admissible to prove up a conviction. Although police records will generally not serve as proof of a conviction, in some states where police records are considered part of the information, they will be admissible as proof of a conviction. DHS sometimes uses court clerk attestations of record summaries or extracts of a record rather than obtaining certified copies of the original records. You will want to scrutinize these non-original records carefully, as they are not always accurate. you may be able to use this to your client's benefit.) The exact offense title and section are often important in preparing your defense. The date of conviction can be important where removability definitions or eligibility for relief from removal have changed over time.

It is always valuable to request the transcript. If the section of the statute your client was convicted under is divisible, the transcript may be admitted in most cases as evidence of whether your client was convicted of a removable offense. In addition, having the transcript lets you know what your client did, or at least what he pled to doing. This is critical if relief is available, and often valuable for thinking about defense strategies. It is also useful in promoting more realistic communication with your client. In most jurisdictions you will order the transcript from the Court Reporter's Office at the courthouse where your client was convicted, which will pass the request to the reporter who reported the plea. The speed and efficiency of service varies quite a bit from reporter to reporter, and you need to monitor the process.

In non-detained cases, or if time permits, you should also consider requesting the client's FBI record and DHS file. For the FBI record, send a money order for $18 along with a completed fingerprint card taken by local police to Attn: SCU, U.S. Treasury, FBI CJIS Division, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306. The DHS record will need to be requested via the Freedom of Information Act. Records should be requested from the Immigration FOIA office that maintains the records for a region, if known, or from the nearest Immigration office. No up-front fee is required with the request.

Before beginning your immigration law analysis, it is worth reviewing the transcript to see whether the court advised your client pursuant to that immigration consequences could result from his conviction. If the court failed to give these warnings, in many states, the conviction can be vacated by a relatively straightforward motion to the state court. (Care needs to be taken because the case begins again once the initial conviction is vacated. However, in more cases than not, a new plea, better-tailored to avoid or minimize immigration consequences, can be crafted.) Likewise, review the transcript to confirm your client knowingly waived his constitutional rights to go to trial, against self-incrimination, etc., before he pled. For more information on this area of the law, see Norton Tooby, Post-Conviction Relief for Immigrants, available from the author at 510 597-9856 or http://www.criminalandimmigrationlaw.com; or Larry Yates, Postconviction Remedies, West Group, or seek out experienced criminal counsel.

Next Week: Building Your Case: Part 3 of 5


About The Author

Michael J. Boyle practices immigration law with the Law Offices of Michael Boyle, a four-attorney immigration law firm in North Haven, CT. Mr. Boyle is also Chair of the Connecticut chapter of the American Immigration Lawyers Association. He is also Staff Attorney for the unions at Yale University and advises the immigration committee of the Hotel Employees and Restaurant Employees International Union. He is a graduate of Yale, the University of London School of Oriental and African Studies, and the University of Connecticut School of Law. Michael Boyle may be contacted at: mboyle@immigrantcenter.com.


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