Criminal Immigration Law


“Criminal Immigration Law” is a term describing the overlap between criminal law and immigration law, first used by Norton Tooby.  See N. Tooby, Tooby’s Guide to Criminal Immigration Law: How Criminal and Immigration Lawyers Can Work Together (2008). Criminal convictions can trigger deportation. Similarly, a defendant’s immigration status can trigger an immigration hold, which itself can sabotage many critical criminal sentences, such as drug or alcohol treatment or release on probation or parole. Criminal and immigration counsel must therefore work very closely together.



Immigration Damage from Criminal Cases


Criminal convictions can cause serious immigration damage, including mandatory deportation, mandatory detention, and disqualification from eligibility for relief from removal in immigration proceedings.  The United States Supreme Court recently recognized that “deportation is nevertheless intimately related to the criminal process.”  Padilla v. Kentucky, 130 S.Ct. 1473 (March 31, 2010)(referring to N. Tooby, Criminal Defense of Immigrants (2003) as an authoritative treatise).


We have long recognized that deportation is a particularly severe “penalty,” Fong Yue Ting v. United States, 149 U. S. 698, 740 (1893); but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984), deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra, at 2–7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United States v. Russell, 686 F. 2d 35, 38 (CADC 1982). Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult. See St. Cyr, 533 U. S., at 322 (“There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions”). Padilla v. Kentucky, 130 S.Ct. 1473 (March 31, 2010).




Criminal Damage From Immigration Status


Similarly, a defendant’s immigration status can cause serious damage in immigration court.  For example, an immigration hold placed against a defendant who is in criminal custody can disqualify him or her from many advantageous criminal dispositions, such as drug or alcohol treatment, anger management, work or school furlough, or even release from custody on probation or parole.  Therefore, criminal defense counsel must learn the immigration consequences affecting the defendant, in order to perform the core function of obtaining the best possible criminal disposition.