Criminal Defense of Immigrants

(A)  Origins of the Problem.  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,[334] 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.[335]

(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 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.

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

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