Criminal Defense of Immigrants


§ 1.6 C. Special Aspects of Representing Noncitizen Defendants

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Criminal defendants who are not citizens of the United States have in common the need for criminal defense counsel to defend them not only against the criminal penalties of their offenses, but also against their immigration consequences.  They have other special characteristics, however.  For example, if they are recent immigrants, they may lack fluency or literacy in the English language.  They may not be aware of the right to an interpreter, or not wish to put the court – which will soon pass sentence against them – to the inconvenience of providing one.  They might not wish to cause the delay in the proceedings required to ensure a non- or limited-English speaking defendant understands exactly what is going on.  See Chapter 4, infra.


                The criminal process may exhibit serious bias against a defendant who does not speak fluent English.  The same may be true for defendants who come from other countries or cultures.   Special attention may be necessary to try to blunt the damaging effects of official racism or xenophobia.  See § 3.4, infra.


                Noncitizen defendants likewise may lack sufficient knowledge of the dominant culture in the United States to understand criminal proceedings or the roles of the various participants.  For example, they may believe that defense counsel is an agent of the state that is prosecuting them, and that anything they say to defense counsel will be used against them in a court of law.  Moreover, the criminal offenses themselves may have been caused by some imperative of their native culture, which may have had a profound effect on their state of mind and thus on their criminal culpability.  See § § 3.57, et seq., infra.


                Many immigrants come to the United States not only to seek a better life, but also to flee persecution.  They may have suffered great trauma in their native land, before coming to the United States.  For example, a Vietnamese client had suffered painful beatings by police in Vietnam before immigrating.  When he was arrested here, he immediately became terrified of a repetition of that traumatic experience, and said yes to anything the police put to him, resulting in a false confession to a crime he did not commit.


                Terrible poverty in the native land may have resulted in malnutrition or other diseases that are connected with the commission of the offense, or constitute mitigating circumstances at sentence.


                It may be necessary to conduct an investigation in a foreign country, to obtain information of use in handling the criminal case.  See § 3.63, infra.


                Finally, special procedures may be applicable to noncitizen defendants in the criminal process.  For example, early release from prison to deportation, extradition, or the right to be placed in contact with the consulate of the client’s native country under the Vienna Convention.