In its 2010 decision in Padilla v. Kentucky, the U.S. Supreme Court acknowledged both the severity of the immigration consequences of criminal convictions and the importance of ensuring that defendants are informed of those consequences before entering pleas.1 The Supreme Court held that immigration penalties are so intimately tied to the criminal court process that defendants have a constitutional right to competent advice from their defense attorneys regarding the specific risk of deportation triggered by pleas and convictions.
The failure to properly advise non-U.S. citizen clients of immigration consequences may constitute ineffective assistance of counsel.2 As a result, criminal defense practitioners must either develop a sufficient understanding of the immigration consequences of criminal convictions to properly advise their clients or consult with an immigration law practitioner who can analyze and advise on the potential consequences.
WHAT IS CRIMMIGRATION?
U.S. immigration laws have grown more complex and intertwined with criminal statutes over the past decades, especially since the 1996 immigration reforms.3 This merger has given rise to what many have labelled “crimmigration.”4
For non-U.S. citizens, criminal convictions for certain crimes (or, in some situations, simply admitting to specific conduct without even being charged) can result in removal proceedings, mandatory detention during those proceedings, limitations on otherwise available immigration relief,5 and a lifetime ban on returning to the United States.6 Generally, the facts regarding what actually occurred are irrelevant. Instead, the immigration analysis focuses on the text of the statute underlying the conviction or charge — this type of analysis is referred to as the categorical approach.7 These laws affect all noncitizens including lawful permanent residents (i.e., green card holders), asylees and refugees, people on temporary visas, and people without current status.
WHAT IS A CONVICTION FOR IMMIGRATION PURPOSES?
The Immigration and Nationality Act (INA) broadly defines a criminal conviction at 8 USC 1101(a)(48)(A) requiring a “formal judgment of guilt” whether by judge, jury, or plea (including nolo contendere8) plus some punishment, penalty, or “restraint on liberty.” As a result, pleas taken under advisement when the defendant has to plead guilty or no contest or is found guilty by the court and the court imposes some form of punishment remain convictions under U.S. immigration law and are not feasible options for non-U.S. citizens.
As the INA broadly defines convictions, the following likely are considered convictions for immigration purposes in Michigan: deferrals under the Holmes Youthful Trainee Act9 or domestic violence deferrals under MCL 769.4a, deferral to drug court for possession or use of controlled substances, or expungement under MCL 333.7411. However, juvenile delinquency offenses are not considered convictions for immigration purposes.10
CONSTITUTIONAL OBLIGATIONS IN LIGHT OF PADILLA
Since Padilla was published, criminal courts across Michigan have provided overly broad, nonspecific, boilerplate immigration warnings to defendants in hopes of upholding the ruling in Padilla. However, boilerplate immigration warnings provided by the court do not satisfy the safeguards announced by the U.S. Supreme Court in Padilla. This is because Padilla places the duty to warn about the risk of deportation on the criminal defense attorney and not on the court. Although constitutional warnings provided by the court can satisfy due process requirements, they cannot cure constitutional violations based on ineffective assistance of counsel.
Padilla requires criminal defense attorneys to give specific and accurate advice about the risk of deportation. It states:
[I]nformed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. ... Counsel who possess[es] the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence.11
To uphold Padilla, criminal courts must require defense attorneys to provide accurate and client-specific advice about the potential risk of deportation to their non-U.S. citizen clients. Courts can also help by informing defense counsel of their duty under Padilla at the onset of criminal proceedings and notifying them of available resources relating to immigration consequences of criminal activity. In addition, courts can utilize a court-appointed immigration attorney or provide financial assistance to obtain an expert to provide advice about the risk of deportation and require that defense counsel provide a letter to their client detailing the specific immigration consequences prior to any plea being entered. These simple measures will ensure that criminal defense attorneys will be diligent in obtaining immigration consequences of a plea and provide accurate and specific advice about the risk of deportation to their clients.
ANALYZING IMMIGRATION CONSEQUENCES IN CRIMINAL PROCEEDINGS
Inquire about U.S. citizenship
To properly advise a noncitizen regarding a criminal plea or conviction, a criminal defense attorney must first inquire on their client’s citizenship status. Many attorneys racially profile a light-skinned client or a fluent English speaker by wrongly assuming they are United States citizens based solely on those characteristics. If you determine your client is not a U.S. citizen, you must obtain your client’s complete immigration and criminal history in every jurisdiction to properly analyze crimmigration consequences.
Is your client deportable or inadmissible?12
When analyzing whether a client is subject to grounds of inadmissibility and deportability, a criminal defense attorney must analyze the conviction to determine “the proper classification of the crime.”13 Making this classification is not an easy task, however, it is a significant part of a non-U.S. citizen’s defense.14 “Aggravated felonies”15 and crimes involving moral turpitude16 are the major categories of crimes in immigration law. To understand and advise a client on immigration consequences, the attorney must first categorize the crime charged and identify the possible adverse consequences, potential forms of relief, and possible solutions for the defendant.
An undocumented client does not eliminate your obligations under Padilla. Although this may seem counterintuitive, one might assume that if an individual is already removable for past crimes or lack of lawful status, the immigration consequences of a pending charge are irrelevant to the individual’s immigration case. However, whether a defendant is already removable does not mean that a defendant will suffer no harm from the failure to receive such advice. Because admissions of guilt or convictions may bear on an individual’s eligibility for lawful status or relief from removal, an attorney’s failure to advise a client about potential immigration consequences can prejudice a defendant regardless of their legal status or past criminal record.17 A person who is removable may nonetheless be able to receive a new green card if he or she is not inadmissible due to a criminal conviction.18 Counsel should therefore try to avoid inadmissibility in this situation.
What are your client’s goals related to their immigration status?
Analyze the potential effects of pending charges on immigration status. Make sure to think about the specific threats of inadmissibility and deportability (e.g., mandatory detention and inability to travel) as well as denial of future benefits like becoming a U.S. citizen and obtaining other noncitizen status (e.g., visas).
Some questions an attorney should consider are: Does your client want to become a U.S. citizen or are they in process of doing so? Does the client care more about immigration consequences or avoiding jail time? Does your client have future travel plans that will trigger inadmissibility upon return?
What’s the best plea/conviction for your client?
Consider all options available in your jurisdiction. For example:
- Can the case be resolved by reducing the charge to a civil infraction to avoid a conviction altogether?
- Can the charge be reduced to an offense that does not trigger deportation or inadmissibility?
- Can the defendant negotiate a sentence that would avoid deportation or preserve certain defenses against deportation (e.g., a sentence of less than one year on a theft offense or crime of violence or consecutive sentences of less than one year on multiple such offenses)?
- Are there multiple charges, only some of which would trigger deportation? If so, can a disposition be negotiated in which convictions and/or sentences of one year or more are only received on offenses that do not trigger deportation for such convictions and/or sentences?
Precise immigration consequences that may ensue from a given plea, admission of guilt, or conviction vary widely depending on the particular facts and circumstances of a defendant’s case, his or her current immigration status, and past record. Criminal defense attorneys should strive to ensure that any advisal they provide is accurate. The authors urge criminal defense attorneys to reach out to an immigration practitioner or contact the State Bar of Michigan Immigration Section for further assistance when representing a non- U.S. citizen criminal defendant.19