Criminal Mitigation In Immigration Cases

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INTRODUCTION
Background
Any immigration petition or case with a crime, fraud, or CIMT (crime involving moral turpitude) and especially when it is considered serious, deviant, or where the circumstances are less than clear criminal mitigation should be considered. This is especially true in those cases in which criminal mitigation is the essential part of the case and other aspects of the petition, such as proving extreme hardships, may actually be secondary.

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Purpose of Criminal Mitigation in Immigration Cases
Although noted in the first part of this book, it is important to recap the purpose of criminal mitigation in general. Criminal mitigation serves to humanize the client through a sympathetic narrative and induce empathy for the adjudicator by documenting the client’s life history and contextualizing the client’s conduct. It is also important to illustrate the client’s community, education, and employment ties. It is equally crucial to reflect that the client has expressed remorse and regret and is fully rehabilitated for any wrong-doing.
The professional expression of the mitigation expert can replace the self-expression of the client, particularly if the client is uneducated or simply does not have the psychological know-how to advocate on his own behalf. Moreover, clients with poor language skills, difficulty with communication, or who fear authority could also greatly benefit from speaking with a mitigation expert who could reflect their needs in this context.
Ultimately, the mitigation report is not just a mental health report but a comprehensive document outlining very broadly the client’s psychosocial history as a means to disabuse the adjudicator of bias and prejudice and eliminate nonexistent patterns that may inform the adjudicator’s assessment of the case, especially given the client's criminal history, arrests, and / or CIMTs.

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Mitigation Considerations
There are host of considerations in a criminal mitigation analysis much of which has been outlined in the first part of this book, however a review of some of the essential features is relevant here. It is crucial to provide the adjudicator with a clear sympathetic narrative of the client’s psychosocial history as a means to contrast it with his role in the criminal conduct. The client’s perspective on his behavior, remorse, regret, the client’s rehabilitation, and his overall life experiences in the intervening years can demonstrate good moral character in and of itself. It is important to show that the client has accepted full responsibility for his wrongdoing and the ways in which he has redirected his focus towards praiseworthy behaviors on a personal level, on behalf of his family, through consistent employment, education, and in the community.
It is also crucial to explain that the client’s criminal behavior may only reflect an aberrant decision, misguided behavior, error in judgment, or an act of foolish conduct undertaken at a younger age. It is also helpful to show that the client had no true animus towards society or a particular individual, but rather in an unthinking moment acted in a manner that he has come to deeply regret. The client may have also suffered from a diminished capacity due to overwhelming life stressors that precipitated the criminal behavior or cumulative life stressors over many years that may even have caused the individual clinical depression, anxiety, and other psychiatric issues. By the same token, it is crucial to stress that the client is not evil, or bad, but rather acted in a moment of poor judgment and that this sole instance of poor judgment must be viewed as isolated and not a reflection of the individual as a whole.

Get a Mitigation Expert, and Specifically a Social Worker

Psychologists perform psychological evaluations to determine mental health, behavioral, and cognitive problems. Social workers perform psychosocial evaluations to determine systemic family and developmental concerns pertaining to community, the home, quality-of-life issues – all of which are informed by medical and mental health considerations.
Get a social worker who specializes in mitigation because psychotherapists do NOT – and even general mental health experts – do not do mitigation. Every immigration lawyer needs to understand this. Many of the hardship cases in 601 waivers and/or cancellation of removal concern not only a hardship analysis, but the client has also engaged in a felony, CIMT, or fraud, which necessitates mitigation.
It is commonly believed that waiver denials occur because the hardships have not been sufficiently proven. This is actually not true or true only in part. In fact, in the discretion of the officer and/or the immigration judge the case may be denied based on the felony, CIMT, or fraud issue. This is extremely deceiving because the large majority of the denial itself seems focused on the hardship analysis only. However, the USCIS adjudicator and/or immigration judge wants to understand why the client has committed a felony, CIMT, or fraud. There is a need for expression of remorse and/or regret. There is also a need to contextualize the wrongdoing and to explain the individual’s conduct or illegal decision. The adjudicator and/or judge wants clarification and insight into this matter, as much as the adjudicator and / or judge wants insight and understanding about the hardships.
In fact, there are several areas where criminal mitigation in the immigration case is supremely important. For example, Adam Walsh Act petitions mandate careful criminal mitigation. Another example is In Matter of Hranka, 16 I&N Dec. 491 (BIA 1978) where the BIA listed three criteria for determining whether to approve or deny this nonimmigrant waiver. A third example concerns individuals who have repeated patterns of wrongdoing, such as multiple arrests for drug use, or a blatant disregard for immigration processes through the use of multiple false documents or identities.

Direct Interviews
Because the cases noted below involve individuals who have committed crimes or CIMT’s direct interviews are absolutely necessary. Direct interviews are especially crucial because in many cases the family members may be unaware of the client’s crime(s) or arrests, or the crime(s) may have occurred many years before the client married. After undertaking numerous cases it is clear that the USCIS deems face-to-face interviews with greater seriousness in their decision-making process. As such, the client’s personal narrative is mandatory and as a clinician I can state that nothing replaces a face-to-face clinical interview. Often, two or even three interviews are required for a full understanding of the individual's psychosocial background.
This evaluator is also aware that many clients may reside outside of the United States—or in a jail far away from the family—and this could create an added financial burden to the family. In such cases, the family must be told up front about how the mitigation expert can best advocate for the client and what can be done in the client's best interests. Only then can the client and his family make an informed decision as to whether or not to devote the needed financial resources to retain an expert to travel to different parts of the United States—or even outside of the United States—to interview the client directly.
TYPES OF CASE
Cancellation of Removal for LPRs
Cancellation of removal for lawful permanent residents (LPR) who become deportable due to prior convictions will benefit from criminal mitigation. Under INA §240A(a) an LPR is eligible for cancellation of removal relief if he or she: (1) Has been an LPR for at least five years; (2) Has resided in the United States continuously for seven years after having been admitted in any status; (3) Has not been convicted of an aggravated felony; and (4) merits a favorable exercise of discretion. The Immigration Judge must balance the positive factors and negative factors noted below and if the favorable factors in the LPR’s case outweigh the negative factors, the Immigration Judge in his discretion should grant Cancellation of Removal relief. See, In Matter of C-V-T, 22 I&N Dec. 7 (BIA 1998) and Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978).

Positive factors to consider include:
· Family ties in the United States,
· Duration of residency in the US,
· Employment history,
· Service in the U.S. armed forces,
· Hardship to family in the United States and to the LPR if deported ,
· Value and service to the community,
· Rehabilitation, and
· Other evidence of good moral character.

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Adverse factors to consider include:
· Nature and circumstances of the grounds of removal,
· Additional violations of the immigration laws,
· Nature, recency and seriousness of the criminal record, and
· Other evidence of bad moral character.
Cancellation of Removal for Non-LPRs
Cancellation of Removal is also available to persons who are not lawful permanent residents. Under INA §240A(b) if the respondent has: (1) ten-years continuous presence, (2) good moral character, (3) has not been convicted of a crime (with a few exceptions), and (4) “ exceptional and extremely unusual hardship” to family members is demonstrated then deportation may be avoided in the discretion of the Immigration Judge.

212 Waivers
Waivers are another major area where criminal mitigation can be quite helpful and the most relevant for this section is the 212(h) waiver. Under INA §212(h) the Attorney General may, in his discretion, waive the application of subparagraph 212(a)(2)(A)(I) (crimes involving moral turpitude), 212(a)(2)(B) (multiple criminal convictions), 212(a)(2)(D) (prostitution and commercial vice), 212(a)(2)(E) (certain aliens who have asserted immunity from prosecution), and 212(a)(2)(A)(i)(II) (an offense of simple possession of 30 grams or less of marijuana).
The 212(i) is another waiver that this evaluator comes across with some regularity. Under section INA §212(a)(6)(C)(i) of the Act, an alien who, by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation, or admission into the United States or other benefit provided under the Act, is inadmissible. However, the Attorney General may, in his discretion, waive the application of section §212(a)(6)(C)(i) of the Act in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of the alien would result in extreme hardship to the citizen or lawful resident spouse or parent of the alien.

Nonimmigrant Waivers
Under INA 212(d)(3)(A) nonimmigrant waivers are possible without a specific hardship analysis, however criminal mitigation of the petitioner's history can be quite helpful. The Board of Immigration Appeals has criteria to be evaluated by the Attorney General in making a discretionary determination in such cases, which has been clarified In Matter of Hranka, 16 I&N Dec. 491(BIA 1978) where the BIA listed three criteria for determining whether to approve or deny this nonimmigrant waiver:

1. The risk of harm to society if the applicant is admitted;
2. The seriousness of the applicant’s prior immigration law, or criminal law violations, if any; and
3. The reasons for wishing to enter the US.

In Hranka, the BIA did not include rehabilitation as a criterion per se, but clearly based its decision in part on the rehabilitation of the applicant. Thus, for applicants with criminal records, evidence of rehabilitation would certainly improve a 212(d)(3) waiver application. As such, the above criteria can best be explicated through a criminal mitigation evaluation and report.

Asylum Cases
Although unusual, about once a year a case is referred to my office regarding the criminal conduct of a person who has petitioned for asylum, yet the client also has a criminal matter that needs to be mitigated. This section will provide two case examples.

Case Example. David was born in Ghana, entered the United States as a teenager on a visa, left his school program, and lived on the streets of New Jersey in an extremely dangerous city yet never engaged in drugs or illegal activity, but survived by eating out of garbage cans and making a few dollars by shooting hoops given his athletic prowess. A benevolent caretaker accepted guardianship of David and David’s asylum petition was granted based on his fear of persecution by his father a drug lord serving a life sentence in Europe. The following year while attending college David was arrested for drug possession with intent to distribute, which would not only jeopardize his asylum case but could also ultimately result in his deportation to Ghana where he could be killed. After this evaluator was notified it became clear that this was no longer an immigration matter as such, but rather a criminal mitigation matter. This is because the client had already presented a well-founded fear of persecution, which was acknowledged by the immigration officer. How did I proceed? I proceeded as I would in any criminal mitigation case. I flew down to the college to interview the Dean, the coach, dorm counselors, David’s friends, his academic advisor, and I undertook an updated psychosocial history informed by a strong clinical section to help explain as best as possible why this individual who had never before committed a crime and hated drugs given his father’s role as a drug lord would undertake such an activity. I also spoke at length with the criminal attorney representing the client where the client resided near his college and also offered to speak with the district attorney directly with regard to the seriousness of the case, that is, that the client could literally be killed if deported to Ghana. The case was ultimately successful because the criminal mitigation evaluation explicated his conduct as an aberrant misjudgment due to a poor decision given overwhelming pressures in light of his college studies, athletic endeavors, and personal tragic history.

Case Example. The client’s asylum petition was jeopardized by his multiple arrests for petty larceny. The client, who claimed that he would be persecuted as a Jew if deported to Syria, suffered from a well-documented history of schizophrenia. The asylum petition was based largely on Syria’s history of human rights violations, yet the client’s arrests required criminal mitigation in its own right. At the individual hearing, I testified that schizophrenia is considered the cancer of mental health and that it has negatively affected the client’s decision-making due to chronic psychotic ideation, including hallucinations and delusions. I testified quite frankly that is was a lifelong disability and that if returned to Syria in all likelihood the client would never obtain crucial psychiatric care that he desperately needed for his health and stability.

Bond Hearings
Another important consideration in immigration matters is to have a criminal mitigation report prepared for the bond hearing. The controlling provisions for bond/custody determination hearings before an Immigration Judge are found at INA § 236; 8 C.F.R. §§1003.19 and 1236.1 (2006). This can be extremely useful not only in filling in the blanks for the Immigration Judge regarding issues of safety and community ties, but if the client must later petition for cancellation of removal the criminal mitigation report can be used in almost exactly the same form to explain the client’s psychosocial history. A similar strategy is sometimes employed by criminal lawyers where a criminal mitigation evaluation is prepared for the client in an effort to inform the district attorney about the client’s psychosocial history, and if unsuccessful or if the client is ultimately sentenced in court without a plea deal the same criminal mitigation report can be quite useful for the presiding judge.
The major factors in a bond / custody hearing that Immigration Judges consider, include:
· Length of US residency and fixed addresses
· Family ties with particular emphasis on those family members that can confer immigration benefits to the alien
· Positive employment history
· Immigration record
· Client’s attempt to escape authority or prosecution
· Prior appearances or failure to appear in immigration court hearings, and most importantly
· Criminal record, including extensiveness and recency, indicating consistent disrespect for the law and ineligibility for relief from deportation/removal.

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Discretionary Relief
The following case illustrates a client who has no immediate legal immigration relief.

Case Example. I was asked to write a criminal mitigation report for an individual who was incarcerated on a fourteen-month sentence and would be deported upon its completion. The individual had no history of criminal arrests whatsoever and escaped terrible poverty and extreme hardship country condition issues in the Caribbean to carve out for himself and his wife a wonderful life in the United States with his two adolescent children who were engaged in a wide range of praiseworthy community activities and academics.
John, a trucker, was asked by his boss to drive a load from California to Pennsylvania, yet John became suspicious fearing that the shipment contained marijuana and notified the owner who flew out to California. Although the owner would not deny or confirm John’s suspicions he convinced John to drive with him back to Pennsylvania.
The rig was pulled over because of a tinted window, drugs were found in the interior, and the client arrested. The immigration lawyer determined that no legal remedy was available outside of a humanitarian plea of discretion to permit the client to remain in the United States. As such, the lawyer recommended a formal criminal mitigation report.

Entry Without Inspection
Entry Without Inspection (EWI) cases are not usually considered for mitigation by the immigration lawyer, yet I routinely consider mitigation for EWI client’s because the individual may well be escaping serious health or safety issues in his or her country of origin. This is particularly true for women who relocate to the United States to escape abuse and violence by husbands, boyfriends, and other close family members. The woman may have experienced not only violence and harm, but also resultant psychiatric issues, including Posttraumatic Stress Disorder, and this could have serious implications for the client’s qualifying family members. In fact, with regard to the extreme hardship analysis the quality of life for girls and women is an essential factor in any evaluation I undertake with special considerations for a history of spousal abuse, sexual assault, FGM (female genital mutilation), and other ways in which women are made to exist as second-class citizens in civil society due to religious edicts or cultural norms.

Case Example. A female client who was abused in her country of origin feared that her daughter would suffer similar human rights violations if forced to visit the client or live there on a permanent basis. This matter was also extremely important because it reflected the quality of maternal care that the client would be able to provide her children in her country of origin, as returning may trigger deep-seated fear, anxiety, depression, and uncertainty given the trauma that she experienced earlier in her life.

Conclusion
This essay has focused on criminal mitigation in immigration matters. Many of these cases also require a hardship analysis for the client and / or his family members.


About The Author

Mark Silver is a New York Licensed Clinical Social Worker who has a combined Specialist Bachelor of Arts degree in History and Political Science from the University of Toronto and a Master of Arts degree in Political Science from the University of Western Ontario. He also has completedd a Master of Social Work at the University of Toronto, a post-graduate Certificate Program in Family Therapy at Smith College and a Doctor of Psychology at the Southern California University for Professional Studies. In addition, he holds a Juris Doctor fromt he City University of New York, Queens College and is admitted to practice law in New York. For the past decade, Mark has worked as a consultant for law firms throughout the United States, conducting psychosocial evaluations and writing formal reports in forensic and mitigation immigration and criminal cases.


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