Criminal Defense of Immigrants

Congress has attached immigration penalties to various criminal offenses and convictions.  These consequences apply only to noncitizens.  United States citizens, nationals of the United States, and certain American Indians are immune from these immigration consequences.  It is therefore critical to ascertain in a reliable way whether the client falls within one of these categories.  See § § 3.13, et seq., infra.

                These adverse immigration consequences of crimes have become greater and greater over time, and Congress has increasingly restricted the availability of discretionary immigration relief from these consequences, so it is more and more true that deportation and other consequences are in effect mandatory.  Moreover, Congress has enacted mandatory detention statutes, entirely forbidding immigration courts from releasing on bond many noncitizens charged with deportability or inadmissibility on account of certain criminal cases.  The government does not provide court-appointed counsel to defend noncitizens in removal proceedings, so roughly half of them have no legal assistance.  As a result, many noncitizens are ordered removed, despite not being deportable if their cases were analyzed properly, and many more agree to deportation because further immigration detention becomes too excruciating for them to endure.  As a result, once a noncitizen defendant has suffered any of an increasing list of criminal convictions, it may be practically impossible to mount an effective defense against removal.  If they are not defended against these immigration consequences in criminal court, where they do enjoy the right to court-appointed defense counsel, it may be too late to do so in removal proceedings.  For a discussion of the many reasons why criminal defense counsel must step up to the plate and defend their clients not only against the criminal penalties of criminal cases, but also against their immigration consequences as well, see Chapter 2, infra.

                Finally, the United States is devoting increasing resources to the task of identifying and removing criminal noncitizens from the United States, so the volume of removal cases has been rising dramatically.  See § § 2.7-2.8, infra.

                It is ironic that this rush to judgment is based on false assumptions.  Immigrants commit far less crime than other social groups.

[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.[1]

There is no justification for the harsh and inflexible penalties of deportation and other adverse immigration consequences inflicted against noncitizens on account of criminal issues.

[1] Immigration Policy Center, The Myth of Immigrant Criminality and the Paradox of Assimilation: Incarceration Rates among Native and Foreign-Born Men 3 (Feb. 26, 2007), http://www.ailf.org/ipc/special_report/sr_022107.pdf (last visited May 25, 2007).