101 Tips for Representing Non-Citizens in Criminal Proceedings - ABA YLD 101 Practice Series

By Sara Elizabeth Dill

Every year, the number of people coming into the United States increases, and now, more than ever before, our country plays host to an extraordinarily large number of non-citizens. Sadly enough, these individuals often become involved in our criminal justice system. Therefore, it is now imperative that lawyers in both criminal and immigration law have knowledge of the collateral consequences of a conviction in immigration proceedings. Defense lawyers must know and understand the consequences of certain pleas and convictions in order to render effective assistance of counsel and guide clients to knowingly accept or reject a plea. Prosecutors should be cognizant of the rationale behind a defendant's position on whether to accept a plea, as well as the fact that the individual may suffer consequences above and beyond those found within the criminal sentence. The immigration consequences are usually more devastating and of concern to a non-citizen than the criminal sanction, even if it includes jail time. Finally, judges should be aware of immigration consequences when sentencing, as well as ensuring that a person truly understands the potential consequences prior to accepting a plea. This article seeks to provide young practitioners with basic information to aid them when dealing with non-citizen criminal defendants.

Determining the Immigration Status of Your Client
At the commencement of work on a criminal case, a lawyer should determine the current immigration status of the client (e.g. no status, pending application, lawful permanent resident, temporary protected status, or United States Citizen). The attorney should then inquire as to what applications the client has filed, or anticipates filing in the near future. For example, the person may be seeking asylum, withholding of removal, or residency through a spouse or family member. Inquiry should also be made as to whether the client has a U.S. citizen or permanent residence child or spouse, as this may affect whether a conviction would bar the client from receiving any immigration benefits or whether a waiver for a conviction would be available. Ideally, the defense lawyer should contact the client's immigration lawyer, if one exists. Unfortunately, because no right to appointed counsel exists in immigration proceedings, individuals are often forced to represent themselves and may not be aware of what benefits are available.

Reviewing the Client's Criminal History
Next, an attorney should determine what the client's criminal record is, if any. One important thing for criminal practitioners to be aware is that, for immigration purposes, a "conviction," an "adjudication of guilt," and a "withhold of adjudication," are all considered criminal convictions. The only resolutions that may not be considered as convictions are when a case is either nolle prossed or a juvenile adjudication of delinquency. However, immigration courts may still consider the underlying facts of the offense when exercising discretion. Further, in reviewing the prior criminal record, the lawyer should determine both what the client was arrested for, and what the specific offense the withhold or conviction was for. If the individual has prior felony convictions, then it is likely that he is already barred from receiving any immigration benefits. Thus, any subsequent plea or conviction will not affect a person's eligibility for immigration benefits. If a person only has one prior conviction, then further inquiry must be made into the person's family and immigration status.

Determining the Nature and Severity of the Current Criminal Charge
Once you have ascertained your client's past criminal history and current immigration status, it is vital to examine the current charge your client is facing. First, look at whether the crime is a misdemeanor or felony. Next, look to whether it falls under the category of crimes involving moral turpitude. Finally, determine whether the crime is an "aggravated felony."

Crimes Involving Moral Turpitude
Under 8 U.S.C. § 1227(2)(2)(A)(ii), a person can be deported if he or she is convicted of two or more misdemeanor "moral turpitude" crimes not arising out of a single scheme of criminal misconduct or one felony crime involving moral turpitude if the conviction occurs within five years of entry. Practitioners experience the greatest confusion in this area, as the INA does not expressly define what crimes are considered crimes involving moral turpitude ("CIMT"). However, according to the Supreme Court, "moral turpitude refers generally to conduct that is inherently base, vile, depraved, and contrary to the accepted rules of morality and the duties between persons or to society in general." Jordan v. De George, 341 U.S. 223, 229, 71 S. Ct. 703 (1951). One test is whether the act constituting the crime is accompanied by vicious motive or a corrupt mind, or if the crime has an intent element of moral laxity, bad character, or violence.

One important nuance to note is that where the mental state for the offense is only criminal negligence, the crime is not a CIMT; however, if the intent is recklessness, the crime might be a CIMT and further research is necessary. The same is true for crimes that have no requisite mental state, as some of these may also be CIMTs. Once you have your client's prior criminal history, you should research case law to determine whether the crime is one involving moral turpitude. There are also a number of books and publications that list what crimes are considered CIMTs.

Aggravated Felonies
Under 8 U.S.C. § 1227(a)(2)(A)(iii), any alien convicted of an aggravated felony at any time after admission is deportable. This category is slightly easier to interpret for criminal practitioners, as 8 U.S.C. § 1101(a)(43) lists what crimes are considered aggravated felonies. The list of aggravated felonies is quite extensive and is subject to a number of interpretational nuances. For example, a sentence of less than one year for some crimes may result in a conviction not being considered as one for an aggravated felony. Additionally, almost all drug related offenses are considered aggravated felonies and thus trigger a bar to receiving immigration benefits.

In December 2006, the United States Supreme Court decided the case of Lopez v. Gonzales (No. 05-547) (Dec. 5, 2006). This decision drastically changed and gave more clarity to what offenses could be considered aggravated felonies for immigration purposes. Most importantly, the court held that all state first-time drug simple possession offenses are not aggravated felonies if they are misdemeanors under federal law, regardless of whether the state classifies them as felonies. However, second or subsequent simple possession drug offenses may be deemed aggravated felonies depending on state and federal recidivism laws and notice provisions. There is one exception - if the simple possession offense is for more than five grams of crack cocaine or any amount of flunitrazepam. Finally, dicta in this decision addressed how courts should examine drug trafficking offenses, or offenses where the crime would not be a trafficking offense or a felony under federal law. However, it still remains unclear as to how each and every statute would be resolved.

Therefore, you should research whether the crime charged is a CIMT, an aggravated felony, or both. Once you have determined where the crime falls, you then need to return to the immigration benefits your client is seeking and determine whether a conviction will create a bar.
  
Determining Your Client's Best Interests and Negotiating with the Prosecution
At this point you are now prepared to adequately advise your client on the possible options and consequences of either accepting a plea or taking a case to trial. The ABA Standards set forth guidelines for defense counsel, and these standards become even more important when representing non-citizens because the collateral consequences are much more drastic. Although typically, as defense counsel, we try to avoid jail time for our clients, many non-citizens are willing to accept jail time in exchange for pleading to an offense that will not result in deportation. Priorities for non-citizens are often different than citizen criminal defendants because staying in the United States is the most important thing. Therefore, it is imperative that defense counsel speak at length with non-citizen clients about possible consequences and possible pleas.

Prosecutors should also be advised of the collateral consequences of a conviction. This may facilitate the plea bargaining process. Prosecutors should make the same inquiries as to past history and researching the consequences of a conviction on the current charge. Prosecutor and defense counsel should then work together to fashion an appropriate plea or resolution that will not carry the harsh collateral consequences in immigration proceedings. 

Immigration law can be quite confusing and difficult to navigate, especially for lawyers who practice solely in the criminal law field. However, resources exist, and immigration practitioners are generally available to offer advice, especially if it avoids problems in the future. Although some pleas may be vacated, it is a very difficult process. Additionally, lack of counsel for a majority of individuals in immigration court means that individuals are summarily deported without the opportunity or knowledge to vacate pleas or find ways to still obtain immigration benefits through waivers.

Therefore, the most important thing for defense counsel is to do your research, talk with your client, and try to obtain the best result possible so as to avoid barring your client from ever receiving immigration benefits in the future. This will not always be possible, but it is your duty as a lawyer to render effective assistance of counsel by thoroughly researching your client's case. These steps should provide a helpful starting point and a guide as to the basic things to always research when representing non-citizens in criminal court.

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About the Author

Sara Elizabeth Dill, Esq., is an attorney with the Law Offices of Bennett H. Brummer in Miami, Florida.

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