Representing Noncitizens in Criminal Cases
The average criminal defense attorney knows little of the devastating consequences that representation—or misrepresentation—of a noncitizen may cause. In fact, most attorneys fail to even inquire about a client’s immigration status and most aliens are equally guilty of ignoring this problem.
What may be considered a good outcome for a U.S.-born defendant can wreak havoc on an alien’s life. Aliens include both temporary visitors (nonimmigrants) and green card holders (lawful permanent residents (LPR)). LPRs are still classified as aliens and can be deported or removed from the United States for criminal conduct by the Immigration and Customs Enforcement (ICE) arm of the Department of Homeland Security.
Only U.S. citizens, who include naturalized aliens, are safe from removal by ICE, which has no jurisdiction over natural born citizens. Hence, the first thing an attorney should ask a client is his or her immigration status.
To be deported, an alien must first be convicted of a deportable crime and the conviction must be final, meaning the right to appeal is exhausted, whether or not an appeal was made. The time period for appeal, however, is generally 30 day or less, and most immigration attorneys are not contacted until this time has elapsed, making the conviction final before any action can be initiated. This is not to say that a good criminal defense attorney cannot go back to state court and move to have the conviction set aside or revisited by withdrawing the client’s plea of guilty, but postconviction remedies are always an uphill fight.
A conviction, as defined by the Immigration and Nationality Act (INA), Sec. 101(a)(48), requires two things: 1) an admission of guilt or a finding of guilt by a judge and 2) the imposition of some form of punishment by the court. Pleading nolo contendere is still considered an admission of guilt, but when the court imposes no form of punishment other than court cost, there is no conviction for removal purposes.
The second thing a good criminal defense attorney should know is that a suspended imposition of sentence (SIS) is still a conviction for immigration purposes. INA’s definition of a conviction basically ignores an SIS for removal purposes. In other words, a defense attorney may plead a client guilty, get an SIS, and walk the client out of jail immediately. But when ICE catches up with the client, he or she will be incarcerated again and placed in removal proceedings.
If an immigration attorney is consulted early, then charges (assuming the prosecutor is willing) may be plea-bargained down to a reduced offense or a non-deportable crime. In some cases, even a more serious charge may save an alien from deportation.
Immigration law has two classifications of crimes that are deportable offenses, plus specific crimes as well. The two main classes are crimes involving moral turpitude (or CIMTs) and aggravated felonies. The specific crimes are controlled substance violations, firearms offenses, money laundering, alien smuggling, visa and passport fraud, and export violations.
Neither CIMT nor moral turpitude is defined by statute. Case law has defined these crimes as any crime involving an element of evil or predatory intent; one which demonstrates a baseness or depravity under current mores; in other words, a lack of good morals or moral turpitude. Obvious crimes, such as murder, rape, blackmail, and fraud are CIMTs, whereas a simple assault has been held otherwise in the immigration arena.
A CIMT can also be a misdemeanor, including writing a bad check as fraud is involved. One CIMT may not be a deportable offense because there is a petty offense exception, but two CIMTs fall under the realm of “multiple CIMTs” and can result in an alien being removed from this country.
It is important to be aware of the petty offense exception because it gives the criminal defense attorney something to work toward. If an alien has committed only one CIMT offense where the maximum possible sentence of imprisonment does not exceed one year, and the alien is not sentenced to more than six months of imprisonment (regardless of whether said sentence is suspended or the alien is released early on parole), then the alien is not deportable. This exception does not apply to controlled substance offenses or other inadmissibility crimes.
Aggravated felonies, unlike CIMTs, have been defined by Congress in INA Sec. 101(a)(43)(A)-(U), which generally covers all major felonies and then some. The biggest problem with aggravated felonies is mandatory detention by ICE. This means no bond at one’s removal hearing before the immigration court and a potential lengthy detention at an ICE facility, which could easily be hours away from a client’s home and family.
A nonimmigrant (or alien who is not an LPR) who commits an aggravated felony is also subject to expedited removal proceedings or administrative removal without the protection or participation of the immigration court. This is ICE’s fast-track out of the United States and basically deprives an alien of all forms of discretionary relief generally afforded one before an immigration judge. The federal court of appeals is the only remedy, but generally there is not enough time to act before the alien is placed on a plane bound for his or her home country.
In conclusion, because there have literally been books written on the subject of the immigration consequences of criminal activity, consultation with an immigration defense attorney as soon as possible can save an alien and the individual’s family years of heartache. In Bridges v. Wixon, 326 U.S. 135, 65 S. Ct. 1443 (1945), the Supreme Court held that, “although deportation technically is not criminal punishment, it may nevertheless visit as great a hardship as the deprivation of the right to pursue a vocation or a calling” and, most significantly, that, “deportation may result in the loss of all that makes life worth living.”
Priscilla J. Lim practices immigration law at Lim Law Office in St. Louis, MO. Contact her at LimLawOffice@aol.com
© Copyright 2009, American Bar Association.