In negotiating plea bargains for immigrants, many defense lawyers forget to focus on the primary goal for their clients – staying in the United States. While no reliable data exists on how many immigrants are in state prisons, the federal government estimates that immigrants are about 25% of the federal prison population. Immigrants include individuals with green cards, refugee status, undocumented persons and persons here on visas. However, defense lawyers, district attorneys, attorney generals, and judges often fail to account for a person’s legal status here in the United States when entering a plea for a criminal offense.
With most defendants, less time in jail or prison may be a top priority but for immigrants a plea to a misdemeanor with no jail time may signify a life of exile to a country they have never known. Defense lawyers cannot assume what is good for the typical U.S. citizen defendant is good for the non-citizen defendant. In fact, many immigrants are willing to serve longer prison sentences in exchange for the security of being able to stay here in the United States.
Unfortunately, most immigrants do not realize the dramatic impact that a conviction can have on their lives until the immigration authorities begin deportation proceedings. This may happen while someone is serving a criminal sentence in prison or after the prison or jail sentence has ended.
Many prisoners are screened by immigration officials during their prison sentence. If immigration authorities believe the immigrant is deportable, they can put a detainer on the person, pick them up within 48 hours of the end of their release date, and transfer them to an immigration detention center anywhere in the United States.
Upon arrival in immigration detention, it begins to settle in that the accused may not have understood the exact impact of the plea agreement. The defense lawyer may not have ever explained that certain convictions result in almost automatic deportation. Also, the defense lawyer may have given mistaken legal advice that the plea would not have any impact on their immigration status – when in fact it does.
The Supreme Court, in Padilla v. Kentucky,130 S.Ct. 1473, 1480-82 (2010), recognized that the Sixth Amendment right to effective assistance of counsel includes a duty to inform non-citizen defendants of the impact a plea will have on their immigration status. For many defendants, this means a legal remedy may exist to overturn a conviction if in fact the defendant was not warned of the immigration consequences of his plea.
Immigrants must also show that this failure to advise about the immigration impact prejudiced the accused. Prejudice may include, if it had not been for the bad legal advice, the person could have asserted his right to a jury trial, could have raised a defense to the charge, or could have negotiated a plea that would not have stripped him of his papers or ability to get papers. Currently, a split is developing among the courts as to whether the Padilla rule is retroactive. See e.g., Commonwealth v. Clarke, 949 N.E.2d 892, 899 (Mass. 2011)(Padilla retroactive); U.S. v. Orocio, 645 F.3d 630 (3rd Cir. 2011)(same); Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011)(Padilla not retroactive); United States v. Hong, 2011 U.S. App. LEXIS 18034(10th Cir. 2011) (Padilla not retroactive to cases on collateral review).
But even if a non-citizen can show defense counsel failed to advise him and he was prejudiced, the immigrant may only be able to assert this defense while in criminal custody. Many state courts have held that to bring a petition for a writ of habeas corpus to vacate the conviction, the individual must be in criminal custody. Custody typically includes incarceration, probation, or parole for the deportable conviction. Courts have found, however, that immigration detention does not count as custody if parole and probation for that offense have been terminated. People v. Carrera, 239 Ill. 2d 241, 940 N.E.2d 1111, 1118(2010)(liberty must be curtailed by state to file relief under Post-Conviction Hearing Act and federal immigration custody does not count as state curtailment of liberty); People v. Villa, 445 Cal.4th 1063 (2009)(California habeas statute’s requirement that individual be “imprisoned” or “restrained” does not include restraint or detention by federal immigration authorities).
This means that many people may not realize that their convictions are deportable until they arrive in immigration detention, but by then it may be too late to vacate that conviction if parole and probationary terms have ended. Parole boards and probation offices are also terminating parole and probation early when immigrants arrive in immigration custody. It is unknown whether this is an attempt to cut off post-conviction options for immigrants and the legality of this early termination may be questionable.
What is clear is that immigrants should explore their post-conviction options for vacating a conviction as soon as possible. Offenses such as drug sales, burglary, theft, crimes of violence, domestic violence offenses, rape, sexual abuse of a minor, possession of a controlled substance, possession of drug paraphernalia, and many others may make an immigrant deportable. If the immigrant was never informed by his defense lawyer about how these convictions could affect his papers, he may have a right to overturn his conviction.
One risk worth evaluating is that even if the immigrant ends up winning his petition for writ of habeas corpus and vacating his deportable conviction, the district attorney or attorney general can recharge the immigrant for the same offenses. In some cases the district attorney may be willing to negotiate a plea that is not deportable, but some district attorneys may play hardball on the plea negotiations and immigrants could end up with a worse conviction and more prison time. It is a risk that needs to be evaluated and carefully considered.
Finally, immigrants need to understand exactly how a conviction impacts their legal status or ability to get papers before trying to vacate a conviction. Some offenses may not even be deportable. For example, negligent vehicular manslaughter may not be a deportable offense in some circuits, even where a lengthy sentence is imposed. Some offenses may be deportable but there may be defenses against deportation such as political asylum, cancellation of removal, relief under the Convention Against Torture or adjustment of status. Before an immigrant embarks to vacate his conviction, he must carefully evaluate the impact of the conviction and make sure it is actually deportable and determine how it affects his defenses to immigration relief.
Source: GAO, Criminal Alien Statistics Information on Incarcerations, Arrests and Costs, GAO-11-187 (Washington, D.C. March 2011)
Other legal sources:
Resources on Padilla:
Immigrant Defense Project, A Defending Immigrants Partnership Advisory: Duty of Criminal Defense Counsel Representing an Immigrant After Padilla v. Kentucky, (April 6, 2010).
D. Kesselbrenner, A Defending Immigrants Partnership Practice Advisory: Retroactive Applicability of Padilla v. Kentucky, National Immigration Project of the National Lawyers Guild (March 17, 2011).
C. García Hernández, Major Issues the Courts Have Been Dealing with Since Padilla v. Kentucky. 2011 Emerging Issues 5882 (Sept. 8, 2011).
Immigrant Defense Project and New York University School of Law Immigrant Rights Clinic, Judicial Obligations After Padilla v. Kentucky: The Role of Judges in Upholding Defendants’ Rights to Advice About the Immigration Consequences of Criminal Convictions, (October 2011).
Washington Defender Association’s Immigration Project, Advisory: Duty of Criminal Defense Counsel Representing Immigrant Defendant After Padilla v. Kentucky, (April 7, 2010).
K. Hartzler, Surviving Padilla: A Defender’s Guide to Advising Noncitizens on the Immigration Consequences of Criminal Convictions,(Florence Immigrant & Refugee Rights Project 2011).
State Post-Conviction Remedies
D. Wilkes, State Post-Conviction Remedies and Relief Handbook (2009)
N. Tooby, California Post-Conviction Relief for Immigrants (2009 Edition)
N. Tooby, Post-Conviction Relief for Immigrants (National Edition 2004)
Other Criminal-Immigration Resources:
Manuel D. Vargas, Removal Defense Checklist in Criminal Charge Cases (Nov. 21, 2007).
Defending Immigrants Partnership, Representing Noncitizen Criminal Defendants: A National Guide, (2008). defendingimmigrationlaw.com.
Manuel D. Vargas, Tips on How to Work with an Immigration Lawyer to Best Protect your Non-Citizen Defendant Client, (2004).
Immigrant Defense Project, “Particularly Serious Crime” Bars on Asylum and Withholding of Removal: Case Law Standards and Sample Determinations, (January, 2011).
Immigrant Defense Project, Immigration Consequences of Crimes Summary Checklist.
Brady, Tooby, Mehr, Junck, Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws, (10th Edition).
Maria Baldini-Poterman, Defending Non-Citizens in Illinois, Indiana and Wisconsin, Heartland Alliance’s National Immigrant Justice Center, 2009. www.immigrantjustice.org.
Kathy Brady, Holly Cooper, et al., Quick Reference Chart & Annotations for Determining Immigration Consequences of Selected Arizona Offenses, (2009). www.ilrc.org.
Kara Hartzler, Immigration Consequences of Your Client’s Criminal Case, (2008), Powerpoint presentation available at www.defendingimmigrants.org.
Katherine Brady, Quick Reference Chart to Determining Selected Immigration Consequences to Select California Offenses, (2010). www.ilrc.org.
Katherine Brady, Effect of Selected Drug Pleas After Lopez v. Gonzales, a quick reference chart on the immigration consequences of drug pleas for criminal defenders in the Ninth Circuit (2007). www.ilrc.org.
Immigration Criminal Law Resources for California Criminal Defenders. www.ilrc.org.
Jorge L. Baron, A Brief Guide to Representing Non-Citizen Criminal Defendants in Connecticut, (2007). www.defendingimmigrants.org or www.immigrantdefenseproject.org.
Elisa L. Villa, Immigration Issues in State Criminal Court: Effectively Dealing with Judges, Prosecutors, and Others, Conn. Bar Inst., Inc., (2007).
District of Columbia
Gwendolyn Washington, PDS Immigrant Defense Project’s Quick Reference Sheet, Public Def. Serv., (2008).
Quick Reference Guide to the Basic Immigration Consequences of Select Florida Crimes, Fla. Imm. Advocacy Ctr., (2003). www.defendingimmigrants.org.
National Immigration Project, Selected Immigration Consequences of Certain Illinois Offenses, (2003). www.defendingimmigrants.org.
Indiana Public Defender Council, Immigration Consequences of Criminal Convictions, (2007). www.in.gov/ipdc/general/manuals.html.
Tom Goodman, Immigration Consequences of Iowa Criminal Convictions Reference Chart.
Abbreviated Chart for Criminal Defense Practitioners of the Immigration Consequences of Criminal Convictions Under Maryland State Law (Maryland Office of the Public Defender & University of Maryland School of Law Clinical Office, 2008).
Dan Kesselbrenner & Wendy Wayne, Selected Immigration Consequences of Certain Massachusetts Offenses, National Immigration Project (2006). www.defendingimmigrants.org.
Wendy Wayne, Five Things You Must Know When Representing Immigrant Clients (2008).
David Koelsch, Immigration Consequences of Criminal Convictions (Michigan Offenses), U. Det. Mercy School of Law (2008). www.michiganlegalaid.org.
Maria Baldini-Potermin, Defending Non-Citizens in Minnesota Courts: A Practical Guide to Immigration Law and Client Cases, 17 Law & Ineq. 567 (1999).
Joanne Gottesman, Quick Reference Chart for Determining the Immigration Consequences of Selected New Jersey Criminal Offenses, (2008). www.defendingimmigrants.org or www.immigrantdefenseproject.org.
Jacqueline Cooper, Reference Chart for Determining Immigration Consequences of Selected New Mexico Criminal Offenses, New Mexico Criminal Defense Lawyers Association, (July 2005). www.defendingimmigrants.org.
Manuel D. Vargas, Representing Immigrant Defendants in New York, (4th ed. 2006). www.immigrantdefenseproject.org.
Immigrant Defense Project, Quick Reference Chart for New York Offenses, (2006). www.defendingimmigrants.org or www.immigrantdefenseproject.org.
Sejal Zota & John Rubin, Immigration Consequences of a Criminal Conviction in North Carolina, Office of Indigent Defense Services, (2008).
Steve Manning, Wikipedia Practice Advisories on the Immigration Consequences of Oregon Criminal Offenses, Oregon Chapter of American Immigration Lawyers Association and Oregon Criminal Defense Lawyers Association, (2009).
A Brief Guide to Representing Noncitizen Criminal Defendants in Pennsylvania, (Defender Association of Philadelphia, 2010). www.immigrantdefenseproject.org.
Michael C. Holley, Guide to the Basic Immigration Consequences of Select Tennessee Offenses, (2008).
Michael C. Holley, Immigration Consequences: How to Advise Your Client, Tennessee Association of Criminal Defense Lawyers.
Immigration Consequences of Selected Texas Offenses: A Quick Reference Chart, (2004-2006). www.defendingimmigrants.org.
Rebecca Turner, A Brief Guide to Representing Non-Citizen Criminal Defendants in Vermont, (2005).
Rebecca Turner, Immigration Consequences of Select Vermont Criminal Offenses Reference Chart, (2006). www.defendingimmigrants.org.
Mary Holper, Reference Guide and Chart for Immigration Consequences of Select Virginia Criminal Offenses,(2007). www.defendingimmigrants.org.
Ann Benson and Jonathan Moore, Quick Reference Chart for Determining Immigration Consequences of Selected Washington State Offenses, Washington Defender Association’s Immigration Project, (2009). www.defendingimmigrants.org or www.defensenet.org/immigration-project/immigration-resources.
WDA Immigration Project, Representing Immigrant Defendants: A Quick Reference Guide to Key Concepts and Strategies, (2008). www.defensenet.org/immigration-project/immigration-resources.
Wisconsin State Public Defender, Quick Reference Chart – Immigration Consequences of Select Wisconsin Criminal Statutes.
Holly Cooper is an immigration law professor at UC Davis and Anel Carrasco is a UC Davis King Hall Immigrant Detention Fellow.
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