By Attorney Nancy E. Miller of Reeves Miller Zhang & Diza
Committing a crime can get you into a lot of trouble. But entering into a plea agreement in criminal court may get you into even more trouble. If you don’t know the immigration consequences of the guilty or no-contest plea you enter, your troubles may just be beginning. That great deal that kept you out of jail may also get you removed from the United States. That is why the United States Supreme Court has held that criminal defense attorneys must inform their non-citizen clients of whether the plea they are considering entering into carries a risk of deportation.
The Court recognized that deportation is sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specific crimes. For that reason, a defendant is entitled to the effective assistance of competent counsel before deciding to enter into a plea agreement.
Criminal defense attorneys are not required to become experts in the area of immigration law. Courts have acknowledged that immigration law can be complex and that there will be numerous situations in which the deportation consequences of a particular plea may be unclear or uncertain. In those circumstances, the criminal defense attorney’s obligation is to advise the noncitizen that the pending criminal charges may carry a risk of adverse immigration consequences.
This limited obligation may, however, raise more problems than it solves. As Justice Alito said in his concurring decision in Padilla v. Kentucky, “nothing is ever simple with immigration law”. Terms such as “conviction”, “moral turpitude”, “single scheme of criminal misconduct” are terms of art and have different meanings in immigration law than in state law. Other concepts in the Immigration & Nationality Act are ambiguous or confusing to attorneys not versed in the intricacies of immigration law. Is someone an alien (or are they a citizen without knowing it)? What is the difference between being inadmissible, removable or ineligible for naturalization? The criminal defense attorney does not need to know the answers to these questions. But the alien trying to avoid deportation does.
The question then for the noncitizen accused of a crime is, how can he best protect himself from a “good” plea bargain that results in his deportation? The immigrant quite plainly must consult an immigration attorney experienced and knowledgeable in the immigration consequences of criminal offenses and convictions and he must do so before he enters into any plea agreement. Ideally, his criminal defense attorney and his immigration attorney should work together to obtain a “deal” that is beneficial from both a criminal defense and an immigration standpoint.
This “good deal” can take several forms. It may involve convincing the prosecutor to agree to an amended charge that does not render the alien either inadmissible or removable. A non-citizen who is removable may be in the United States in lawful status but be subject to removal because of the conviction. A non-citizen who is not in lawful status may be inadmissible as a result of a criminal conviction, even if they are the beneficiary of an approved, immediately available petition. And a non-citizen who is in lawful status (and whose specific conviction does not render him removable) who leaves the United States for a temporary purpose may be charged with being inadmissible upon their return. Each of these instances can end the non-citizen’s ability to remain in the United States. So it is best if the charge to which the non-citizen pleads does not result in his being either inadmissible or removable.
Unfortunately, many prosecutors take the position that the immigration ramification of the plea is not their concern and will not agree to a charge amendment that will keep the alien safe from all negative immigration consequences. However, the criminal conviction with immigration consequences may be subject to a waiver that would allow the alien to either obtain status, if she is otherwise eligible, or keep her green card and, potentially, apply for U.S. citizenship at a later time.
And “crimmigration” (the interaction of criminal and immigration law) changes all the time. Last year, Governor Brown signed a bill that lowered all sentences for misdemeanors to no more than 364 days. A recent court ruling held that a green-card-holder who adjusted status may still be eligible for a waiver of an aggravated felony conviction. Other court rulings have addressed immigration consequences of burglary and crime of violence convictions.
To the alien who says “why do I need two attorneys to deal with one criminal problem?” the answer is “because you have two problems and you want to be able to legally stay in the United States.”