Criminal Law Newsletter
| Publication year | 1982 |
| Pages | 950 |
1982, April, Pg. 950. Criminal Law Newsletter
At the outset, advisement of immigration administrative consequences resulting from a criminal charge or conviction has been, and continues to be, a problem of recognition. Immigration law is a fairly specialized and highly technical area of practice which often attracts attorneys who limit their practice to immigration matters or who accept virtually no criminal cases. The criminal practitioner is unlikely to receive exposure to the vast and murky area of immigration law in either law school, bar refresher courses or continuing legal education programs. Because of the complexity of immigration law, this column is confined to defining the problem. A description of possible solutions cannot be condensed sufficiently for inclusion here, but will be presented separately in a future column.(fn1)
Immigration consequences may be far more devastating to a client charged with a criminal offense than any sentence of imprisonment. An acceptable disposition in the context of criminal law may be an absolute and irreversible disaster in terms of immigration law.
The trend throughout the country appears to be changing to recognize the dire straits of the alien accused of a crime. Traditionally, the possibility of deportation has been regarded as a collateral consequence of a guilty plea, and no advisement by either the court or counsel has been required to render a plea informed and voluntary.(fn2) Recently, the Florida Court of Appeals allorwed withdrawal of a guilty plea based on ineffective assistance of counsel for failure to advise defendant of possible deportation as a result of the plea.(fn3) Several states have enacted legislation which requires that the trial court advise defendant of possible deportation before accepting a guilty plea.(fn4)
While Colorado has neither judicial nor legislative fiat imposing the duty of advisement on court or counsel, the rationale followed by the Florida Court of Appeals is compelling, and such advice should be regarded as the minimal acceptable standard of effective assistance of counsel.
The complexity of immigration law stems in part from the length of the Immigration and Nationality Act ("Act"),(fn5) and from different interpretations rendered by the Immigration and Nationality Service and the courts.(fn6) Words which may appear to have a commonly understood meaning may in fact be terms of art in the context of immigration law, and there may be a split of authority on the correct application of the term. This column is in no way definitive; it intends to alert counsel to some of the more commonly encountered problems. It is incomplete even as a list of potential consequences and does not intend to describe possible exemptions, waivers and other relief.
For purposes of this discussion, an alien is any individual who is not a United States citizen or national.(fn7) Criminal charge or conviction may affect an individual's ability to remain in this country (deportability) or may affect the person's ability to reenter the country or to change his status under the Act (excludability).
The concept of entry to the United States is important. Generally, an entry occurs each time an alien physically departs and returns to the United States. A return after a trip which is brief, casual, and does not interrupt the alien's residence in the United States may be deemed not to be an entry under the Act.(fn8) Each entry subjects the alien to all grounds of exclusion(fn9) (even though he may not have been deportable prior to leaving the United States). In addition, a criminal act combined with entry within a specified time may trigger the applicability of certain deportation provisions,(fn10) and departures which are significant may affect relief available from deportation.(fn11) Thus, it is important to question the client carefully on dates and purposes of trips abroad.
It is extremely important to recognize that any alien who was...
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