Criminal Defense of Immigrants


§ 15.2 A. Criminal Defense Attorney Summary

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For criminal defense attorneys, the most important thing to know about immigration law is that it applies to anyone (with very few exceptions[1]) who is not a citizen of the United States.  Because of the complexity of the immigration laws (second only to tax law[2]), perhaps the best advice for criminal defense counsel is to seek advice from an immigration attorney experienced in criminal matters every time defense counsel has a noncitizen client.[3]


                To that end, criminal defense counsel should read § § 3.42, et seq., supra, on how to determine whether your client is a United States citizen, and how to work effectively with immigration counsel. Given the complexities of immigration law, this solution should both provide the best representation for the client and save counsel the most time and aggravation.


                Unfortunately, there is no single solution to help noncitizen clients avoid removal.  Each client’s immigration and criminal history must be examined to determine the effect a criminal conviction will have and what possible solutions exist.


                Substantively, the most important concepts for criminal defense counsel looking to broaden his or her immigration knowledge are:


(1)     The effect a criminal conviction will have upon a noncitizen will, in part, depend upon his or her immigrant “status.”  Various types of immigrant “status” include: U.S. Citizen, U.S. National, Lawful Permanent Resident, Immigrant, Non-Immigrant, Asylee, Refugee, Parolee, Out-of-Status and Undocumented.[4]


(2)     All noncitizens subject to “removal” proceedings before an immigration judge are charged with either inadmissibility or deportability.  Under current law, a noncitizen physically present within the United States may fall under either category.  The category a noncitizen falls into will determine the grounds of removal, the types of relief available, and who bears the burden of proof.[5]


(3)     Noncitizens lawfully “admitted” to the United States are subject to the grounds of deportation, and the DHS must prove that they are deportable by clear and convincing evidence.[6]  Otherwise they are subject to the grounds of inadmissibility, and will generally bear the burden of showing they are admissible to the United States.[7]


(4)     Most criminal activity also poses the threat of harming a noncitizen’s “Good Moral Character,” which may result in the noncitizen becoming ineligible (at least temporarily) for naturalization or relief from removal.[8]


(5)     Even if the noncitizen has a state criminal conviction, whether that conviction renders the noncitizen removable from the United States depends mostly upon federal law, including the Immigration and Nationality Act, federal criminal laws referred to in that Act, and the decisions of the Board of Immigration Appeals and the federal circuit court with jurisdiction over the state in which the noncitizen is placed in removal proceedings.  State law is important primarily for making a comparison between the elements of the state criminal statute of conviction and the relevant federal ground(s) of removal.[9]


The majority of the federal laws that control immigration to the United States are contained in the Immigration and Nationality Act of 1952 (as amended) (“INA”), published in Title 8, United States Code.  The same provision has a different statute number (parallel citation) in both the INA and Title 8.  Immigration attorneys are generally more familiar with the INA citations.  This book cites both.  The relevant regulations are contained in Title 8 of the Code of Federal Regulations.  This title is also separated into two parts, one controlling the Department of Homeland Security, and the other controlling the Executive Office of Immigration Review (i.e., the immigration courts).


[1] See § 15.4 infra.

[2] Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977) (“The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress’s ingenuity in passing statutes certain to accelerate the aging process of judges.”)

[3] See § § 3.42, et seq., supra.

[4] See § 15.3(A), infra.

[5] See § 15.5, infra.

[6] See Chapter 17, infra.

[7] See Chapter 18, infra.

[8] See § 15.6, infra.

[9] See § 15.7, infra.