Criminal Defense of Immigrants


§ 1.2 A. The Problem

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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), (last visited May 25, 2007).




(Jan. 8, 2013) (immigration laws are enforced more strictly now than ever before: the DHS reported record numbers of removals during the Obama Administration, while fewer noncitizens are trying to enter the country illegally, and those caught by the Border Patrol are now regularly charged with federal crimes. Together, these trends reflect a sweeping and punitive transformation in U.S. immigration enforcement.
Immigration Reduces Crime Rates Tue Mar 18, 4:11 PM ET Contrary to popular stereotypes, areas undergoing immigration are associated with lower violence, not spiraling crime, according to a new study by Harvard University sociologist Robert Sampson, published in the American Sociological Association's Contexts magazine. He examined crime and immigration in Chicago and around the United States to find the truth behind the popular perception that increasing immigration leads to crime. His study summarizes patterns from seven years' worth of violent acts in Chicago committed by whites, blacks and Hispanics from 180 neighborhoods of varying levels of integration. He also analyzed recent data from police records and the U.S. Census for all communities in Chicago. Sampson found concentrated immigration predicts lower, not higher, rates of violence across communities in Chicago, with the relationship strongest in poor neighborhoods. Violence was also significantly lower among Mexican-Americans than among blacks and whites. Sampson refers to this as the "Latino Paradox," whereby Hispanic Americans do better on a range of social indicators, including propensity to violence, than one would expect, given their socioeconomic disadvantages. His analysis also revealed that first-generation immigrants were 45 percent less likely to commit violence than third-generation Americans. "The pattern of immigrant generational status and lower crime rates is not restricted to Latinos; it extends to help explain white-black differences as well," Sampson said. "We're so used to thinking about immigrant assimilation that we've failed to fully appreciate how immigrants themselves shape their host society." Sampson's arguments are supported at the national level as well. Significant immigration growth - including by illegal aliens - occurred in the mid-1990s, peaking at the end of the decade. During this time, the national homicide rate plunged. Crime dropped even in immigration hot spots, such as Los Angeles (where it dropped 45 percent overall).


The Deported: Immigrants Uprooted from the Country They Call Home Human Rights Watch report on immigration arrests and deportations in 2017, details of the human impact of removal on undocumented immigrants, their families, and their communities. The report draws on 43 interviews with long-term immigrants deported since 2016.
A DHS website lists the number of noncitizens that were removed to 224 different countries from the beginning of 2008 through February 22, 2010.
Solomon Moore, Study Shows Sharp Rise in Latino Federal Convicts, N.Y. Times (Feb. 19, 2009) http://www.nytimes. com/2009/ 02/19/us/ 19immig.html
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.
In January 2008, there were 4,739 federal prosecutions classified as immigration matters, according to timely enforcement data from the Justice Department. This is up over 20% from the previous month, and represents the largest monthly number of such prosecutions in the past seven years. There has been substantial growth in the number of cases handled by U.S. Magistrate Courts, and some portion of this increase may reflect improvements in the recording of these magistrate cases by the Justice Department. For reports on the latest enforcement trends, see
     Immigration cases continue to dominate federal enforcement efforts, making up well over half -- 58% -- of all federal prosecutions in April, according to timely data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC). By comparison, prosecutions falling under the general category of drugs and narcotics made up only 16% of the total, while matters classified as involving white collar violations limped in at just under 5% for the same month. The very heavy federal emphasis on immigration cases became especially notable in February, March and April and is concentrated in selected judicial districts along the border with Mexico. The surge in this area is being advanced under a program called "Operation Streamline." The April figures documenting the Bush Administration's intense immigration enforcement effort -- mostly involving minor criminal charges being brought against undocumented aliens -- have emerged at a time when John McCain and Barack Obama, the two leading presidential candidates, are increasingly debating the immigration policies the United States should pursue. For reports on the latest enforcement trends, go to:

Thanks to Transactional Records Agency Clearinghouse.
"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.").