Tcl - Immigration Consequences of Criminal Pleas and Convictions - October 2006 - Immigration Law - a Primer
| Publication year | 2006 |
| Pages | 55 |
| Citation | Vol. 35 No. 10 Pg. 55 |
2006, October, Pg. 55. TCL - Immigration Consequences of Criminal Pleas and Convictions - October 2006 - Immigration Law - A Primer
October 2006
Vol. 35, No. 10 [Page 55]
Jeff Joseph is Senior Partner in the Joseph Law Firm, a full-service immigration law firm. He is a past Chapter Chair of the Colorado Chapter of the American Immigration Lawyers Association ("AILA"). Joseph is on the AILA National Liaison Committee and is serving his second term as chair of the AILA Amicus Committee - (303) 297-9171, jeff@immigrationissues.com.
This article is a general discussion of the consequences of criminal convictions for the noncitizen client, and the attorney's ethical obligations to inform the client of those consequences. The article provides crime categories for immigration purposes, definitions of terms, and applicable sections of the Immigration and Nationality Act.
In 1987, the Colorado Supreme Court decided the case of People v. Pozo.(fn1) The Court held that the failure to advise a noncitizen criminal defendant of the immigration consequences of criminal pleas and convictions could constitute ineffective assistance of counsel.(fn2)
Since 1987, the U.S. Congress has amended the Immigration and Nationality Act ("INA") several times to increase the possible negative consequences of criminal convictions for noncitizens.(fn3) The Antiterrorism and Effective Death Penalty Act ("AEDPA")(fn4) became effective April 24, 1996, and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") became effective April 1, 1997.(fn5) These amendments provide that noncitizen criminal defendants may be subject to deportation for even minor criminal offenses, including municipal offenses, violations of restraining orders, and petty theft. More important, for many noncitizens, convictions may preclude most forms of relief from deportation.
Consequently, the front line in immigration defense has shifted from the immigration bar to the criminal defense bar. Now, more than ever, it is up to criminal defense attorneys to ensure that their noncitizen clients are properly advised so as to prevent the immigration consequences of a criminal plea.
This article will present an overview of the immigration issues a criminal attorney must consider when representing the noncitizen criminal defendant. Immigration laws are complex and this article provides only an overview of this area of law, so counsel always should consult with an immigration attorney when representing noncitizens in criminal proceedings.
Beginning Representation: Basic Considerations
When beginning the representation of any criminal defendant, counsel always should ascertain the client's immigration status. Counsel should never assume the client is a U.S. citizen. Many immigrants have fully assimilated to the American culture and speak fluent English. For example, individuals from Canada face the same immigration consequences as those from Mexico.
Intake
Attorneys should consider using an intake sheet for all new clients. The following questions should be part of every intake:
1. Where was your client born?
2. If born in the United States, is the client a U.S. citizen?
3. If born outside the United States, were the clients' parents born in the United States? If so, does the client have "derivative" citizenship?(fn6)
4. Has the client ever applied for naturalization (citizenship)?
5. If your client is a noncitizen, what is the client's current immigration status?
If the client is a noncitizen, the attorney should obtain the date of the last admission to the United States, and make a copy of all immigration documents. The client's prior criminal history both in and outside the United States should be carefully discussed with the client.
Definition of "Conviction"
For purposes of immigration law, the term "conviction" is defined in the Immigration and Nationality Act ("INA") § 101(a)(48)(A) as follows:
(48)(A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where -
i. A judge or jury has found the alien guilty or the alien has entered a plea of nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
ii. The judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
B. Any reference to a term of imprisonment of a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.(fn7)
The INA makes clear - and later case law affirms - that "a finding or confession of guilt is sufficient to establish a conviction for purposes of immigration laws, even in cases where the adjudication is deferred."(fn8)
A common misperception among criminal defense attorneys and some judges is that deferred judgments do not result in immigration consequences. This is not the case. The controlling factor in finding a conviction for purposes of immigration law is an admission of the essential elements of the offense charged, followed by some form of restraint on the defendant's liberty.
Probation counts as a restraint of liberty. It does not matter whether the sentence is suspended or deferred. As long as the noncitizen pleads guilty or admits the essential elements of the offense, and a sentence is imposed (whether suspended or not), the noncitizen is "convicted" for immigration purposes.
Expungements and Withdrawals of Pleas
Recent case law has held that expungements, withdrawals of pleas, and deferred judgments pursuant to state rehabilitative statutes do not serve to erase convictions for purposes of immigration law, unless there is a constitutional basis for the withdrawal of plea, dismissal, or expungement.(fn9) This means one of the following must be shown as the basis for the withdrawal:
ineffective assistance of counsel
invalid waiver of counsel
another issue that goes to the legal or constitutional invalidity of the criminal proceeding.
A simple desire to avoid immigration consequences is insufficient to eradicate a prior plea. See the sidebar entitled "Ninth Circuit Application of Expungement to Erase Conviction" for an example of another jurisdiction's treatment of expungements related to drug offenses.
Ninth Circuit Application of Expungement to Erase Conviction
In Lujan-Armendariz v. INS,(fn1) the Ninth Circuit found that aliens convicted as first-time offenders of drug offenses under state law and who subsequently obtained expungements of these offenses did not stand "convicted" of the drug offense for immigration purposes.(fn2) These individuals would not be subject to removal if they qualified for federal first-offender treatment under the provisions of the Federal First Offender Act, 21 U.S.C. § 844(b)(1), had they been prosecuted under federal law.(fn3)
The case was limited to expungements of drug offenses that would have qualified for first-offender treatment under federal law and was not extended to crimes involving moral turpitude or expungements of other types of crimes. Further, the decision of the Ninth Circuit is persuasive only, and not binding on immigration judges in the Tenth Circuit. Therefore, the holding, although promising, has limited applicability in Colorado.
Deferred Prosecutions
Deferred prosecutions are not considered convictions. The noncitizen defendant never admits guilt unless probation is violated.(fn10)
Juvenile Adjudications
Juvenile adjudications in Colorado are not convictions for purposes of immigration law.(fn11) However, if the juvenile commits more than one offense, he or she can be rendered inadmissible. U.S. State Department regulations specify that "[a]n alien convicted of a crime involving moral turpitude or admitting the commission of acts which constitute the essential elements of such a crime and who has...
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