73 J. Kan. Bar Assn. 2, 16-25 (2004). Disaster on the Horizon: It's Post 'Conviction' Time; Do you know where your alien client is?.

Author:By Kathleen A. Harvey, Rekha Sharma-Crawford, and W. Michael Sharma-Crawford

Kansas Bar Journals

Volume 73.

73 J. Kan. Bar Assn. 2, 16-25 (2004).

Disaster on the Horizon: It's Post 'Conviction' Time; Do you know where your alien client is?

Kansas Bar Journal 73 J. Kan. Bar Assn. 2, 16-25 (2004) Disaster on the Horizon: It's Post 'Conviction' Time; Do you know where your alien client is? By Kathleen A. Harvey, Rekha Sharma-Crawford, and W. Michael Sharma-Crawford The horizon narrowed and widened, and dipped and rose,

And at all times its edge was jagged with waves that seemed thrust up in points like rocks.

- Stephen Crane

I. Introduction

But in the gross and scope of my opinion,

This bodes some strange eruption to our state.

- Shakespeare, Hamlet

This article is the second of a three-part series debunking common myths about, and addressing both the practical and malpractice aspects of, representing clients who are not citizens of the United States in the practice areas of domestic practice, criminal law, and business representation. The first article addressed the impact of immigration law on the practice of domestic law and was published in May 2003.(fn1) This article is designed to alert the criminal bar, primarily defense, to the drastic and generally irreversible immigration consequences for individuals who are not American citizens and who are charged with any type of criminal offense, whether misdemeanor or felony. It is also important for prosecutors to understand the drastic consequences that befall the noncitizen beyond the legal conclusion of the charges.

Two laws enacted in 1996 created much harsher consequences for criminal activity on the part of any alien who has not yet become a citizen of the United States.(fn2) The legislation expanded the number and types of criminal convictions that render noncitizens deportable or inadmissible and eliminated many of the possible defenses or remedies previously available.

Twenty years ago the U.S. government deported approximately 1,000 aliens in one year.(fn3) In September 2003 alone, the U.S. Department of Homeland Security (DHS) deported 13,462 noncitizens from the United States - 5,598 of these aliens were deemed criminals. Such "removals," along with noncriminal removals, totaled more than 180,000 for a 22 percent increase for the 2003 fiscal year.(fn4) Of this total, more than 71,700 were criminal removals.(fn5)

There are no available statistics on how many of these criminal removals were the result of misinformation regarding the consequences of the alien's pleas or admissions; the immigration bar sees these new clients every day in ever - increasing and unnecessary numbers. The consequences include deportation, long-term detention, and costly battles with an aggressive agency devoted to removing noncitizens from U.S. soil.

The authors' goal is not to prevent appropriately legal deportations, but rather to assist attorneys in understanding the often counterintuitive effects of the noncitizen's criminal record or, in some cases, admissions on the record. Dangerous and widespread myths in this practice area are too numerous to detail, but consider the most common:

Common Myths Leading to Malpractice:

* A misdemeanor cannot be an aggravated felony in immigration law.

* Permanent Residents (with "Green Cards") cannot be deported.

* A diversion is never a conviction.

* Misdemeanor possession is not a deportable offense.

* A noncitizen cannot be deported for a 20-year-old crime.

* A Suspended Imposition of Sentence is not a conviction.

* The length of the sentence imposed doesn't matter.

* A judicial pronouncement from the bench to the effect that this is not a drug crime for immigration prevents deportation.

* Vacating a sentence always nullifies the drastic deportation consequences.

* Admitting the elements of a crime is not a conviction.

* Employers whose contractors hire "illegal aliens" are not criminally culpable.

* Persons married to a U.S. citizen are automatically (a) a U.S. citizen; (b) a Permanent Resident; or (c) here legally no matter what you call it - and cannot be deported.(fn6)

The authors hope to dispel common myths, explain important concepts, and raise the level of awareness regarding the malpractice pitfalls and radical immigration consequences that result from dangerously inaccurate assumptions and from not knowing when to consult an experienced immigration practitioner. While the authors are regretfully unable to offer a comprehensive survey of all the potential consequences to your noncitizen client faced with criminal charges, helpful resources exist and will be outlined as a final section. The vast array of possible criminal charges can only be addressed in topical, regularly updated treatises produced by immigration attorneys whose passion about the topic is matched by the in-depth understanding of the various and complex aspects of this topic.(fn7)

The laws, regulations, and cases involving deportation or inadmissibility of noncitizens are ever changing and often include vastly differing court interpretations. The "hideous"(fn8) Gordian Knot(fn9) that is immigration law is never more frustrating to immigration attorneys than when faced with assisting clients whose pending deportation was never necessary in the first place.

Once a criminal defense attorney has unwittingly led his client down the path to deportation, it is nearly impossible to reverse the disaster awaiting the client over the horizon.

II. Beware!

A criminal conviction (as defined for immigration purposes), could result in far greater consequences for a noncitizen than any punishment of incarceration and/or a fine. These consequences could flow from minor offenses and impact noncitizens regardless of economic or social class. For those noncitizens who are convicted of crimes, the Bureau of Immigration and Customs Enforcement (ICE) of the DHS(fn10) systematically, and sometimes swiftly, moves to deport them from the United States, regardless of the length of time here, family ties in the United States, or the U.S. government's diplomatic relations with the person's home country.

The crime may have been committed or adjudicated in any country of the world or at any time in the past. Those individuals convicted of a sexual offense face even greater odds against remaining in the United States since the U.S. Department of Justice instituted Operation Predator.(fn11) This program aims to target and deport those individuals with a history of sex offenses. Often these individuals have little chance of obtaining any relief from removal.

Given the increased efforts to exclude aliens at ports of entry or to remove noncitizens who are inside the United States, a criminal defense attorney, dealing with a noncitizen client, would be derelict in his or her duties in failing to research the possible immigration consequences and to consider consulting with an experienced immigration attorney prior to the disposition of any criminal matter.

Therefore shall his calamity come suddenly;

Suddenly shall he be broken without remedy.

- Proverbs 6:15

Two examples illustrate a common misunderstanding by both the bench and the bar regarding immigration laws.

"To the extent that it becomes an issue with the immigration people, as to whether or not the Defendant should be permitted to remain in this country, I want them to understand that there is no indication that this was a drug offense or a crime of violence for immigration purposes."(fn12)

After pleading to the crime of "evasion of record keeping requirements of 21 U.S.C. § 830," the Permanent Resident (PR) defendant was arrested within six weeks of being sentenced to probation and was denied bond by the Immigration Court. The above statement from a federal bench in Kansas at sentencing was promptly and duly ignored by the immigration enforcement officials. After several weeks in jail and a brief legal battle to undo the effects of the plea regarding the sale of pseudoephedrine, Mr. F.A. gave up and agreed to "voluntary" deportation. He took with him his PR wife and U.S. citizen children. Had the attorney and the judge been made aware of the view that immigration enforcement officials take of such crimes, the defense attorney, and possibly the judge, may likely have been more amenable to a different outcome such as pleading to interstate trafficking and racketeering, which under certain circumstances would not be a deportable offense.

"This plea is only for the purposes of this Court."(fn13)

Again, this statement from a defense attorney in open court is not only useless, but confirms the attorney's ignorance of immigration law and personal vulnerability to a well-founded complaint of malpractice.

III. Well Then - Where to Start?

A prudent question is one-half of wisdom.

- Francis Bacon

If your first question to your new criminal defense client is not "where were you born?" you may be committing malpractice in your initial consultation. When is an alien not a noncitizen? Only after he or she has taken the oath of U.S. citizenship.

Every person in America who is not a U.S. citizen is an alien, or - in other words - a noncitizen. In order to avoid an unexpected immigration consequence for a criminal defendant, it is crucial to determine the client's citizenship status. This should occur at the first interview. It is necessary to always ask every client directly about his or her place of birth and immigration status. No attorney can ever afford to assume that a client is a U.S. citizen simply because he or she speaks English...

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