By Helen Parsonage, Elliot Morgan Parsonage PLLC
“The Immigration and Nationality Act is a bit of a beast. It is not known for being warm or cuddly; words like ‘intricate’ and ‘Byzantine’ come more readily to mind. Nor is it known for being easy to understand; we have often remarked on its fiendish complexity. But even the INA has room for a human touch: it has the potential to bring families together to share in the American dream. This case demonstrates both the INA’s tangled construction, and its tender heart.”
Judge Michael Kanne, writing in Akram v. Holder, 721 F.3d 853 (7th Cir. 2013) (internal citations omitted).
As recently as five or six years ago, the response to immigration issues by criminal defense attorneys was, “I know nothing about that,” “I don’t want to know anything about that” and “I just tell them to go see an immigration attorney.” Now, I get regular calls from attorneys who want guidance and advice on how best to protect their noncitizen clients from deportation and keep them out of the clutches of ICE. Several times a year, I’m asked to present to criminal defense attorneys on the topic of immigration law and immigration consequences of pleas and convictions. There has been a huge shift in awareness of the need to understand the real life effects of what happens to non-citizens in courtrooms across the state. As criminal defense lawyers it’s no longer enough to be concerned about jail time, probation violations, and sometimes even innocence – now more and more of our clients are concerned about deportation and separation from family, potentially for years. We even have a new word for this area of law: Crimmigration.
So, what’s changed? In a nutshell, SCOTUS decided in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), that the 6th Amendment guarantee of representation, and of competent representation at that, requires advice on the immigration consequences of what goes on in the criminal courtrooms in North Carolina. Competent advice now means affirmative advice, so the ‘go see an immigration lawyer’ line isn’t really going to cut it these days.
In the past, there were two ‘safe harbors’ that many criminal defense attorneys relied on to rationalize not learning anything about the byzantine labyrinths of immigration law: first, the standard plea agreement includes language about immigration consequences, so that appeared to take care of that; and second, as long as you don’t say anything about immigration consequences, you can’t say anything wrong, so that takes care of that too. Neither of these rationales is valid. In any other context, most criminal defense attorneys would be horrified at the suggestion that they should rely upon a judge to inform their clients of their legal rights rather than do it themselves. Same here. Having a judge advise your client that there may be immigration consequences of a plea is no substitute for the advice of defense counsel. As for silence on the issue, the courts have considered and dismissed this rationale. One case cites counsel as saying “[I am] . . . not an immigration attorney and [I] instruct . . . all of . . . [my] clients to confer with an immigration attorney with regard to the effects a plea agreement and resulting sentence will have on their immigration status. In this case, [I] . . . informed . . [Petitioner] that he needed to confer with an immigration attorney to determine what effect an 8 to 14 month sentence would have on his immigration status.” The court’s response: “This representation falls below an objective standard of reasonableness based on the Supreme Court’s recent holding in Padilla v. Kentucky.”1
So, what’s a criminal defense attorney to do? On the one hand, the courts are saying that we have to provide affirmative, competent advice and on the other, even immigration officials are saying that “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.”2 Certainly, there is no requirement that you become an expert in crimmigration law. Here are some simple steps you can take to safeguard your noncitizen clients:
- Modify your office intake forms to add one simple question right after the one that asks for a date of birth—ask for the place of birth. That way you will at least have a heads up from the outset that there may be an immigration issue ahead.
- Don’t assume that if your client is undocumented that they can be deported anyway and so you don’t have to worry. Oh, and don’t assume your client is undocumented!
- Have contact information for a friendly immigration attorney, preferably one who knows or has experience with North Carolina criminal law, so that you can make a call. You can pass on any cost, and most immigration attorneys will give you a quick consult on the house.
There are a number of myths and half-truths about crimmigration that float around among the criminal defense bar. Here are some of the most popular:
- Myth: If an undocumented client is arrested, a criminal conviction is not going to do any harm because ICE is going to deport them for being “illegal” anyway. Reality: ICE often releases undocumented immigrants without trying to deport them if charges are dismissed or reduced.
- Myth: A conviction for Assault on a Female is going to result in deportation if the victim is a spouse or girlfriend because that’s a domestic violence conviction. Reality: To qualify as a crime of domestic violence for immigration purposes the statute of conviction has to be a) one with a domestic relationship as an element, and b) one which requires physical violence. 14-33(c)(2) requires neither of these things. This is a good place to point out that it is a good idea to read Moncrieffe v. Holder, 133 S. Ct. 1678 and Descamps v. United States, 133 S. Ct. 2276 on the categorical and modified categorical approach to crimes – they’re not just for federal practitioners any more.
- Myth: There has to be a conviction for there to be immigration consequences, so a deferred prosecution or a 90-96 will solve the problem. Reality: Immigration law only requires an admission of guilt and some minimal imposition of punishment or restraint on liberty to create a conviction, so deferred prosecutions or 90-96s almost always qualify.
- Myth: Convictions for controlled substances are the kiss of death for noncitizens, so if I can get a plea for paraphernalia instead, the client will be okay. Reality: There are no safe harbor controlled substance convictions as any conviction ‘relating to’ a controlled substance qualifies.
- Myth: Possession of a firearm is a deportable offense, so if my client is charged with ADW and the weapon was a gun, he is out of luck and there’s no point paying for an immigration consultation. Reality: Not necessarily. If the record of conviction is silent as to the weapon, DHS may not be able to prove it was a firearm rather than a knife.
This article can only scratch the surface of the complex area of crimmigration. It’s a fascinating and ever-changing field. The takeaway should be to make sure you always know which of your clients are noncitizens and to ask an immigration attorney to help you when you have questions. As the demographics of our clientele continue to change, we criminal defense lawyers can no longer say that immigration consequences are not our concern. ¡Buena suerte!
1 Al Kokabani v. United States, 2010 U.S. Dist. LEXIS 110724 (EDNC, July 30, 2010).
2 Karen Kraushaar, INS Spokesperson, Washington Post, April 2001.
First Printed in True Bill, the newsletter of the Criminal Justice Section of the North Carolina Bar Association. February 2015