Defending the Noncitizen
| Publication year | 1995 |
| Pages | 2177 |
| Citation | Vol. 24 No. 9 Pg. 2177 |
1995, September, Pg. 2177. Defending the Noncitizen
Criminal defendants are not popular. Aliens, or noncitizens,(fn1) are not often popular. Criminal aliens, then, represent the nadir of popularity; they also comprise an especially vulnerable group and present special challenges to the criminal defense attorney.
The purpose of this article is to alert counsel to the added layer of difficulty when the defendant is not a U.S. citizen. In the article, the authors intend only to help counsel "spot the issue" and suggest further resources for resolution of the problems.
A typical plea bargain might represent the best possible outcome available to most defendants under most circumstances. If the defendant is a noncitizen, however, that "deal" might trigger consequences under federal immigration law that are far more onerous than the criminal sentence imposed. A noncitizen defendant may accept a "good" plea bargain, only to find himself or herself deported, separated from family, friends and livelihood, and faced with dangers including, in some cases, persecution or even death.
In some cases, the issue as determined by counsel may turn out to be a nonissue---that is, interaction between the alien's "status" (described below) and the criminal case may result in handling the case no differently than if the defendant were a citizen. Thus, the initial intake protocol boils down to these questions: (1) is the defendant an alien?; (2) if so, does it matter?; and (3) if so, what should counsel do?
Most U.S. citizens are born that way: anyone born on U.S. soil is a U.S. citizen at birth.(fn2) A small number of U.S. citizens are born abroad to one or more U.S. citizen parents and, under most circumstances, the fact of their U.S. citizenship is not an issue.(fn3) In rare cases, a seemingly noncitizen client will turn out to be a U.S. citizen after all, through derivation from parents or even grandparents.(fn4) The pertinent initial inquiry, then, is not only "Where were you born?" but "Where and when were your parents and grandparents born?"
Other U.S. citizens come to citizenship not by birth but by "naturalization," the process whereby aliens progress first through "green card" status and then onto full citizenship, usually through an application process involving the passage of time and the passing of tests.(fn5) However, noncitizens or, technically, aliens,(fn6) come in several varieties. Lowest on the alienage totem pole are those without any legal immigration status whatsoever.
Somewhat higher in the hierarchy are legal "nonimmigrants," those who entered lawfully, usually with visas, permitting them to remain in the United States for limited durations of time and for limited purposes, usually not including employment.(fn7) A large percentage of the so-called "illegal aliens" are, in fact, nonimmigrants who entered legally but who "overstayed" or otherwise violated the conditions of their status.
Higher still are refugees,(fn8) asylees(fn9) and other temporary(fn10) or conditional(fn11) residents, who generally have the right to work in the United States and who have the right, in time, to apply for a green card.
Highest among the noncitizens are the green card holders, otherwise known as true immigrants or lawful permanent residents ("LPRs"). As noted, LPRs may, in time, naturalize to obtain U.S. citizenship.(fn12)
Even the most sophisticated and well-educated defendant may not know what his or her status is, and counsel must receive with caution declarations such as "I'm a citizen," or "I have a green card," or "I came on a visa." When in the slightest doubt, counsel should investigate further or engage knowledgeable co-counsel.
Since People v. Pozo in 1987,(fn13) Colorado defense counsel have had the duty to "investigate relevant immigration law" when aware that the client is an alien. Failure to do so may result in ineffective assistance of counsel, making the representation constitutionally infirm under the Sixth Amendment.
The contours of the Pozo decision are not clear cut:
It is not clear what constitutes a "reasonable belief." The best prophylactic, of course, is to inquire deeply into the citizenship status of all clients, no matter what their appearance, name or language.The determination of whether the failure to investigate [the potential deportation consequences of a criminal conviction] constitutes ineffective assistance of counsel turns to a significant degree upon whether the attorney had sufficient information to form a reasonable belief that the client was in fact an alien.(fn14)
Pozo also does not instruct as to how much immigration law counsel should learn. The court is vague on this point:
This language raises several questions: what is "thorough" knowledge, what are "fundamental" principles and when might their impact be less than significant? Pozo imposes significantly...[T]horough knowledge of fundamental principles of deportation law may have significant impact on a client's decisions concerning plea negotiations and defense strategies.(fn15)
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