Unfortunately, it is all too common to see a noncitizen convicted of a criminal offense that triggers some adverse immigration consequence that was unknown to the defendant when the plea was entered.  This can come about in four ways.  (1) The defendant represents him- or herself, and enters a plea without counsel to advise concerning the actual immigration consequences of the plea.  (2) Whether or not the client is represented, the necessary information just does not make it through into the client’s understanding.  When the court gives the boilerplate advice, “if you are not a citizen, you may be deported,” mandated by statute in some states,[1] the defendant does not read or understand the fine print on the plea form or hear or pay attention to the mumbo jumbo of the plea colloquy.  Even if the defendant hears the magic words, s/he believes they are not meant for him or her, since s/he has been a lawful permanent resident of the United States for many years, has deep roots and many family members here, and the like.  It is common for noncitizen defendants to believe that advice is meant for undocumented immigrants, rather than those with some kind of lawful immigration status in the United States.  (3)  Defense counsel fails to advise the client concerning the actual immigration consequences of the plea, in violation of the duty imposed by the ABA Standards.[2]  (4)  The adverse immigration consequences did not exist, or were not as serious, when the plea was entered as they became afterwards when harsher immigration laws became effective in 1996.

 

            As a result, after the plea has been entered, after the client has been sentenced, often after the sentence has been completely served, the immigration authorities arrest the client and begin removal proceedings against him or her.  At this point, the noncitizen begins to realize, for the first time, the full depth of the pit into which the criminal conviction and sentence have cast him or her.  At this point, the client realizes, for the first time, that the true stakes involved in the criminal case were far greater than the relatively minor direct criminal consequences of the plea.  The true stakes were often nothing less than permanent banishment away from home, job, friends, and family.

[1] E.g., California Penal Code § 1016.5.

[2] American Bar Ass’n, ABA Standards For Criminal Justice, Pleas Of Guilty, Standard 14-1.4 (3d Edition, 1999).

DUE PROCESS - NONCITIZENS ARE PERSONS ENTITLED TO DUE PROCESS PROTECTION
Zadvydas v. Davis, 533 U.S. 678, 693-694, 121 S.Ct. 2491 (June 28, 2001) ("[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590, 596-598, and n. 5, 73 S.Ct. 472, 97 L.Ed. 576 (1953); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); cf. Mezei, supra, at 212, 73 S.Ct. 625 ("[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law"). Indeed, this Court has held that the Due Process *694 Clause protects an alien subject to a final order of deportation, see Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896), though the nature of that protection may vary depending upon status and circumstance, see Landon v. Plasencia, 459 U.S. 21, 32-34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982); Johnson, supra, at 770, 70 S.Ct. 936.").

DUE PROCESS - NONCITIZENS ARE PERSONS ENTITLED TO DUE PROCESS PROTECTION
Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ("Whatever his status under the immigration laws, an alien is surely a person .... Aliens, even aliens whose presence in this country is unlawful, have long been recognized as persons guaranteed due process of law by the Fifth and Fourteenth Amendments.").

CRIMDEF - INTRODUCTION
The Myth of Immigrant Criminality and the Paradox of Assimilation: Incarceration Rates among Native and Foreign-Born Men "[D]ata from the census and other sources show that for every ethnic group without exception, incarceration rates among young men are lowest for immigrants, even those who are the least educated. This holds true especially for the Mexicans, Salvadorans, and Guatemalans who make up the bulk of the undocumented population. The problem of crime in the United States is not caused or even aggravated by immigrants, regardless of their legal status. But the misperception that the opposite is true persists among policymakers, the media, and the general public, thereby undermining the development of reasoned public responses to both crime and immigration." IPC, Feb. 26, 2007. http://www.ailf.org/ipc/special_report/sr_022107.pdf

Ninth Circuit

IMMIGRATION LAW " COMPLEXITY
Castro-ORyan v. U.S. Dept of Immigr. & Naturalization, 847 F.2d 1307, 1312 (9th Cir. 1988) (With only a small degree of hyperbole, the immigration laws have been termed second only to the Internal Revenue Code in complexity. (quoting Elizabeth Hull, Without Justice for All 107 (1985))).

Other

REMOVALS BY COUNTRY
A DHS website lists the number of noncitizens that were removed to 224 different countries from the beginning of 2008 through February 22, 2010. http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_11-81_May11.pdf

STATISTICS - IMMIGRATION PROSECUTIONS
Federal immigration prosecutions continued their recent and highly unusual surge in March 2008, apparently reaching an all-time high, according to timely data obtained from the Justice Department by TRAC. The total of 9,350 such prosecutions was up by almost 50% from the previous month and 73% from the previous year. http://trac.syr.edu/tracdhs/

STATISTICS - IMMIGRANTS COMMIT FEWER CRIMES
Immigrants are far less likely than the average U.S.-born citizen to commit crime in California, the most populous state in the United States, according to a report issued late on Monday. People born outside the United States make up about 35 percent of California's adult population but account for about 17 percent of the adult prison population, the report by the Public Policy Institute of California showed. According to the report's authors the findings suggest that long-standing fears of immigration as a threat to public safety are unjustified. The report also noted that U.S.-born adult men are incarcerated at a rate more than 2 1/2 times greater than that of foreign-born men. Kristin Butcher and Anne Piehl, Crime, Corrections, and California: What Does Immigration Have to Do with It?, 9 CALIFORNIA COUNTS: POPULATION TRENDS AND PROFILES, No. 3 (Feb. 2008).

INTRODUCTION - CRIMINALITY OF NONCITIZENS
"Myth of Immigrant Criminality and the Paradox of Assimilation, Incarceration Rate of Native Born and Foreign Born Men" http://www.ailf.org/ipc/special_report/sr_022107.pdf

IMMIGRATION CONSEQUENCES
T. Indritz & J. Baron, Immigration Consequences of Criminal Convictions, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 141 (2d ed. 2007).

SOCIAL SECURITY BENEFITS
CRS Report for Congress on Social Security Benefits for Noncitizens, updated July 20, 2006. http://bibdaily.com/pdfs/CRS%20social%20security%20benefits%20noncitizens%20Aug.%202006%20RL32004.pdf

REMOVAL STATISTICS
Detention and Removal of Illegal Aliens U.S. Immigration and Customs Enforcement (ICE) (PDF 52 pages - 2.74 MB)  - New 05/18/2006 http://www.dhs.gov/dhspublic/interweb/assetlibrary/OIG_06-33_Apr06.pdf

IMMIGRANT POPULATION OF US
About 35.2 million foreign-born people live in the United States, about 12.1 per cent of the national population. Steven Camarota, Report (Center for Immigration Studies October 12, 2005), which is based on the Census Bureaus Current Population Survey (March 2005). The report estimates that there are about 9.7 million undocumented immigrants residing in the United States.

STATISTICS - NUMBER OF DEPORTED
Nearly 90,000 immigrants a year are deported for criminal convictions. See DHS, Immigration Enforcement Actions: 2005, at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2005/Enforcement_AR_05.pdf.

REMOVAL - CONSEQUENCES - SOCIAL SECURITY - LOSS OF BENEFITS
Removal causes loss of social security benefits under SSA Title II retirement funds earned over the working lifetime. Social Security Act 202(n)(1).

STATE LAWS RELATED TO IMMIGRATION
"In 2006, over 500 pieces of legislation concerning immigrants have been introduced in state legislatures around the country. While legislation covered a wide variety of topics, many states focused on employment, trafficking, public benefits, education, identification, voting rights and procedures, trafficking, law enforcement, and legal services. Thus far, at least 57 bills have been enacted in 2006, a pace that exceeds that of 2005. A handful of bills have been vetoed, and several more are awaiting gubernatorial action." NCSL, July 3, 2006. http://www.ncsl.org/programs/immig/06ImmigEnactedLegis2.htm

STATISTICS - ILLEGAL DEPORTATION OF US CITIZENS AND LEGAL RESIDENTS
Millions of people have been illegally deported from the U.S. by using local law enforcement as immigration officers. F. Balderama & R. Rodriguez, DECADE OF BETRAYAL. See also California Government Code Chapter 8.5 (commencing with 8720) to Division 1 of Title 2. In this statute, based on the book, it says: "In California alone, approximately 400,000 American citizens and legal residents of Mexican ancestry were forced to go to Mexico beginning in 1929. In total it is estimated that two million people of Mexican ancestry were forcibly relocated to Mexico, approximately 1.2 million of whom had been born in the United States, including the State of California."

IMMIGRANTS ARE LESS LIKELY TO COMMIT PREDATORY CRIMES THAN NATIVE-BORN UNITED STATES CITIZENS
Immigrants are less likely to commit predatory crimes than are native-born American citizens. Numerous studies have consistently found that immigrants are, in fact, less likely to commit crimes than the native-born. Despite this fact, restrictionist groups and sensationalizing media continue to propagate false images of immigrant communities plagued by crime and violence. The nation's leading experts on immigration and crime are setting the record straight. More than 130 sociologists, criminologists, and legal scholars have signed an open letter to President Bush, members of Congress, and state governors testifying that the problem of violent crime in the United States is not caused by immigrants, regardless of their legal status. In fact, they write, immigrants in every ethnic group in the United States have lower rates of crime and imprisonment than do the native-born. And over the past decade, as immigration rates have soared to historic highs, rates of violent crime and property crime have declined sharply. They urge lawmakers not to be swayed by unfounded myths and to base immigration policy on demonstrated facts, rather than false assumptions. The full Open Letter on Immigrants and Crime is available on the Immigration Policy Center (IPC) website. [http://www.ailf.org/ipc/ipc_openletter0507.shtml] Additional information on immigrants and crime can be found in the IPC's Special Report on the Myth of Immigrant Criminality and the Paradox of Assimilation.

RESEARCH - OLDER VERSIONS OF INA
The "office of the law revision counsel" posts previous versions of the INA, as written, back to 1/2/1991. http://uscode.house.gov/search/prevcode.shtml

BIBLIOGRAPHY
"The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power," Juliet Stumpf, Lewis and Clark Law School ("This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or "crimmigration law," is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory - membership theory - for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract between the government and the people. It is at work in the convergence of criminal and immigration law in marking out the boundaries of who is an accepted member of society.").