Post-Conviction Relief in Virginia (February 27, 2017) - This practice advisory describes the legal standards for vacating a conviction in Virginia on the basis of ineffective assistance of counsel pursuant to Padilla v. Kentucky and Zemene v. Clarke.
Sotnikau v. Lynch - Fourth Circuit Holds that Virginia Involuntary Manslaughter is Not a Crime Involving Moral Turpitude (February 15, 2017) - On January 24, 2017, U.S. Court of Appeals for the Fourth Circuit held that a conviction for involuntary manslaughter under Virginia Code § 18.2-36 cannot be charged as a crime involving turpitude under immigration law. This practice advisory summarizes the decision and describes its implications for noncitizen defendants facing involuntary manslaughter charges in Virginia. To access the full decision, click here.
Arguing Virginia Code § 18.2-51 Unlawful/Malicious Wounding is Not an Aggravated Felony Crime of Violence Under the Categorical Approach (September 26, 2016) - This advisory provides guidance for immigration practitioners defending non-citizen clients convicted under Virginia Code § 18.2-51. The advisory discusses how to use the categorical approach to analyze offenses charged as aggravated felony crimes of violence in immigration proceedings, and addresses issues like the burden of proof, categorical overbreadth, the realistic probability test v. the ordinary case test, and divisibility.
Mathis v. United States and the Categorical Approach: When the Record Matters (July 6, 2016) - This advisory addresses the Supreme Court’s June 2016 decision in Mathis, which affects when and how immigration adjudicators can look to the record when analyzing state convictions. Practice tips address ways to craft a record that is protective for non-citizen clients charged with numerous offenses including: drug-related offenses, burglary, malicious and unlawful wounding, domestic violence-related offenses, fraud offenses, and larceny.
Mitigating Harm for Undocumented Defendants: Enforcement Priorities, DACA and DAPA, and U.S. v. Texas (July 6, 2016) - This Practice Advisory explains the series of executive actions announced by the Department of Homeland Security in 2014 and explains which remain in effect after the Supreme Court’s split June 2016 decision in U.S. v. Texas. An appended chart assists defense attorneys in crafting dispositions that avoid classification of undocumented clients as “enforcement priorities” and maintain eligibility for deferred action programs
Avoiding or Withdrawing a "Conviction" for Immigration Purposes Practice Advisory (April 28, 2016) - The definition of a “conviction” in immigration law differs in important respects from, and is significantly broader than, the definition of a conviction for purposes of Virginia criminal law.3 In light of these differences as well as established case law on plea withdrawal and deferred dispositions, this practice advisory covers three options Virginia criminal defense attorneys can consider in order to avoid or mitigate negative immigration consequences for their noncitizen clients.
Defending Immigrants Facing Controlled Substance Charges Practice Advisory (July 21, 2015) - This practice advisory discusses strategies that Virginia defense attorneys can use when representing immigrants facing controlled substance offenses. The practice advisory discusses strategies that account for the Supreme Court's ruling in Mellouli v. Lynch, 130 S.Ct. 1980 (2015) and other related precedent.
Zemene v. Clarke Practice Advisory (Mar. 6, 2015) - On February 26, 2015, the Supreme Court of Virginia decided Zemene v. Clark (No. 140719), addressing the scope of a criminal defense attorney's obligation to advise noncitizen clients about potential negative immigration consequences that may result from the disposition of a criminal case. Zemene is notable for the breadth of its holding and because it is the first time the Supreme Court of Virginia has analyzed the constitutional obligation addressed in Padilla v. Kentucky, 559 U.S. 356 (2010), in a published decision. This practice advisory discusses the Zemene opinion and its implications for criminal defense counsel in Virginia.
Immigration Consequences of Juvenile Delinquency Adjudications (Updated Feb. 18, 2015) - This practice advisory for Virginia criminal defenses attorneys discusses the immigration consequences of juvenile delinquency adjudications. Delinquency adjudications do not invoke conviction- or admission-based grounds of inadmissibility and deportability but they can lead to other adverse consequences that defense attorneys should analyze when advising clients.
Omargharib v. Holder - 4th Circuit Holds Va. Grand Larceny Is Not A Theft Aggravated Felony (Updated Jan. 8, 2015) - On December 23, 2014, the U.S. Court of Appeals for the Fourth Circuit held that a Virginia conviction for grand larceny (Virginia Code 18.2-95) cannot be charged as a theft aggravated felony under immigration law. This practice advisory summarizes the decision and describes its implications for noncitizen defendants facing grand or petit larceny charges in Virginia. To access the full decision, click here.
Immigration Executive Action (Updated Jan. 20, 2016 - this update explains which portions of the President's Executive Action programs are enjoined pending the Supreme Court's decision in United States v. Texas) - This practice advisory for Virginia criminal defense attorneys discusses the new policies and programs resulting from President Obama's executive action announcements on November 20, 2014, including the Deferred Action for Parental Accountability (DAPA) program and the expansion of the Deferred Action for Childhood Arrivals (DACA) program. The advisory provides an overview of the relevant programs and a toolkit for understanding the impact these programs will have on immigration-related goals for noncitizen criminal defendants. The final page of the advisory is a chart listing which convictions trigger newly announced enforcement priorities and constitute bars to DAPA and DACA.