Crime and Banishment: Immigration Law in Colorado

• Publication year: 2000
• Pages: 69
• Citation: Vol. 29 No. 7 Pg. 69

29 Colo.Law. 69 Colorado Lawyer 2000.

2000, August, Pg. 69. Crime and Banishment: Immigration Law in Colorado

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Vol. 29, No. 7, Pg. 69

The Colorado Lawyer
August 2000
Vol. 29, No. 8 [Page 69]

Specialty Law Columns
Criminal Law Newsletter
Crime and Banishment: Immigration Law in Colorado
by Sandra Saltrese-Miller

The collateral consequences of various convictions seem to grow by leaps and bounds each year. Criminal convictions may affect a defendant’s right to bear arms, drive a car, obtain a professional license, or even vote. One consequence that has become more severe in recent years is the effect a conviction may have on a defendant who is not a citizen of the United States.1 Two laws were passed in 1996 that provide for the automatic removal of non-citizens (also referred to as "aliens") convicted of most crimes the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigration Responsibility Act ("IIRAIRA"). This article provides an overview of recent changes in immigration law as the law relates to criminal convictions

Impact of Immigration Status on Criminal Defense Cases

The consequences of a defendant’s immigration status may dwarf the court-imposed consequences.2 Substantively, convictions that do not result in incarceration may nonetheless result in the permanent exclusion of an individual from the United States Individuals who have long-standing ties, good jobs, and significant family ties may be uprooted and forced to leave the country and may face severe penalties if they attempt to return. Procedurally, the process for making these determinations contains fewer protections for the individual than does the criminal process. The net result is that if immigration issues are not properly addressed as part of the criminal case, resolving the issues in favor of the individual may not be possible.

For example, when Attorney General Janet Reno addressed the Elian Gonzalez case, she proclaimed that the policy of the U.S. Immigration and Naturalization Service ("INS") was that family ties, specifically the bond between parent and child, were paramount. Nonetheless, the significant changes in immigration laws implemented in 1996 and 1997 create a fast-track process for the expulsion of non-citizens convicted of most crimes, without regard to their family ties, the length of time they have lived in the United States, or the facts underlying their conviction. The result is that many non-citizens, who have spouses and children who are citizens and have made the United States their home for most of their lives, can be deported automatically when convicted of certain crimes. Some of these crimes may be minor.

Criminal defense attorneys have a professional and ethical obligation to be aware of the immigration consequences their non-citizen clients may face if convicted.3 People v. Pozo held that counsel who have reason to suspect an immigration issue should investigate and research the issue, and that failure to do so may amount to ineffective assistance of counsel. Since Pozo, the AEDPA and IIRAIRA mandate swift and summary removal of aliens convicted of certain crimes. Therefore, it is more important now than ever before for attorneys to become adept at determining whether a disposition will affect the right of a non-citizen to remain in the United States.

Evaluating the Immigration Situation

First, as a matter of course, attorneys must ascertain the client’s immigration status: citizen, legal resident alien, or undocumented alien. Counsel should never rely on the absence of a foreign accent or appearance when determining whether a client is a U.S. citizen. In some instances, individuals who are charged with a crime and appear to be citizens of another country are actually U.S. citizens. For example, individuals born outside the United States may be U.S. citizens through their parents’ birth or naturalization. Conversely, individuals born in the United States are citizens regardless of the nationality of their parents.

Second, attorneys should determine whether a prospective disposition equals a conviction for immigration purposes. If a court enters a formal adjudication of guilt, the disposition equals a conviction. Thus, a guilty or nolo contendere plea, followed by the entry of a judgment of conviction by the court, is a conviction for immigration purposes.

However...