“Crimmigration” is a cutesy term many lawyers and commentators apply to the intersection of criminal and immigration law. This arises from the fact that these two areas of law are often inextricably intertwined. If you are a non-citizen, a criminal charge will almost certainly affect your immigration status. Immigration violations can also be charged as crimes in certain contexts.
Advice for Criminal Defendants
It used to be that criminal lawyers ignored the immigration consequences a conviction might have on their non-citizen clients. Traditionally, defense attorneys just acted like it wasn’t their problem if their client was ultimately removed from the United States based on a conviction.
In 2010, the United States Supreme Court made it clear in Padilla v. Kentucky, 559 U.S. 356 (2010), that defense attorneys have a constitutional obligation to consider potential immigration consequences and advise their clients accordingly. In Padilla, the Court held that a non-citizen defendant can’t be said to knowingly and intelligently plead guilty to a charge if his lawyer has either failed to advise him that it might result in adverse immigration consequences, or falsely assured him that it won’t result in such consequences. If, for example, a defendant’s lawyer told him that the conviction wouldn’t affect him, but the defendant is then rendered removable because of it, the lawyer has failed to live up to his Sixth Amendment obligation to be an effective advocate.
While Padilla set important obligations for a defense attorney, this has not necessarily guaranteed that non-citizen clients get the advice and representation they deserve and need. Padilla just said an attorney has to inform his client that there might be adverse consequences. It did not say that the attorney has to be right about it, or do anything about those consequences. This means that many lawyers have just started telling every non-citizen client that they might be deported if they are convicted, regardless of the circumstances, as a way to discharge their obligation. The problem though is that different charges bear vastly different consequences, and a good lawyer who knows the rules can avoid some pretty dire consequences down the line. Lots of criminal defense lawyers still act like this isn’t their problem.
Unlike many lawyers, I make it my business to understand the potential ramifications any conviction might have for my non-citizen clients. This starts with understanding what my client’s status in the United States is, how immigration authorities might classify a particular offense and what alternatives there might be. For example, I have often represented non-citizens who were charged with so-called “aggravated felony” offenses. By taking the time to do my research, I properly identified these charges as aggravated felonies, realized that these convictions would have dire immigration consequences, and successfully negotiated plea resolutions to different charges, which did not carry the same consequences.
Of course, I understand how complex immigration law can be, and I understand that many attorneys lack the background to properly advise a non-citizen about potential immigration consequences of a conviction. As a result, I am available to consult on these issues and am happy to share my experience.
Criminal Immigration Offenses
Immigration laws, which have been deemed “civil” in nature, have increasingly been used to support criminal prosecutions in recent years. Indeed, while most people intuitively understand that entering the United States with a false passport, or coming back to the United States after being removed, or even helping someone stay in the country when you know or suspect that person lacks legal status here, might be prohibited under the immigration laws, many people are shocked to learn that those are all federal felony offenses. These offenses aren’t just punished by fines and probation either. Federal prisons are full of people who violated the immigration laws.
What’s sometimes worse is that when someone is charged with a criminal immigration violation, they still almost certainly face civil immigration proceedings. For example, a non-citizen who gave his friend, who he knows is in the country without authorization, a ride across town might first be prosecuted as a criminal, and then sent to removal proceedings. Even someone who has lived here legally for decades could be sent to prison and then permanently removed from the United States for being involved with this type of case.
As you might imagine, the only way to properly handle this kind of case is to be fully familiar with the applicable immigration laws, and understand how they interact between the civil and criminal courts.
Fortunately, I have represented hundreds of non-citizens who were charged with criminal immigration offenses. I understand the unique challenges that these prosecutions face and defend them with a full appreciation for all the possible outcomes.