Georgia Bar Journal
GSB Vol. 13, NO. 4, Pg. 26.
No Second Chances: Immigration Consequences of Criminal Charges
GSB JournalVol. 13, NO. 4December 2007No Second Chances: Immigration Consequences of Criminal ChargesChristina Hendrix and Olivia OrzaMany practitioners do not realize how harsh and drastic the immigration consequences of criminal convictions are, nor how limited the relief is from those consequences. Immigration consequences of criminal charges "may seem unbelievable to lawyers and judges accustomed to dealing with U.S. citizens, who have greater protection under the U.S. Constitution."(fn1)
Criminal defense attorneys should always ascertain the immigration status of their clients at the beginning of a case. This is important because every client who is not a U.S. citizen may be subject to removal/deportation if he or she is convicted of a criminal offense. Criminal defense attorneys must know the immigration status of their clients to determine: (1) the strategy in handling the case; (2) whether they have an ethical duty to inform the client of the immigration consequences of a criminal conviction; and/or (3) the potential legal liability for failure to inform the client of those consequences.
In 2004, the Georgia legislature recognized the importance of informing defendants of the consequences of guilty pleas and amended the Georgia Code, instructing courts to "determine whether the defendant is freely entering the plea with an understanding that if he or she is not a citizen of the United States, then the plea may have an impact on his or her immigration status."(fn2) Failure to assess the defendant's knowledge of the possible immigration consequences of a guilty plea may open the door for the defendant to set aside the plea at a later date through a habeas corpus petition on the ground that the plea was not entered freely and voluntarily.
Georgia precedent establishes that the affirmative misrepresentation by counsel of immigration consequences can support a claim of ineffective assistance of counsel and may even lead to a malpractice claim.(fn3) Although there is no constitutional requirement that the defendant be advised of all possible consequences of a guilty plea, the Georgia courts do distinguish between a failure to inform the client of the possible immigration consequences and affirmative misrepresentations. It is essential that an attorney carefully investigate the impact of the plea on the non-citizen defendant and perhaps seek the advice of an immigration attorney with in-depth knowledge of deportation issues.(fn4) It is also important that clients with existing criminal records be advised to consult with an experienced immigration attorney before applying for any immigration benefit.
What Consequences Can Criminal Convictions Have?
Once a guilty plea has been entered, a non-citizen defendant faces significant consequences due to his immigration status. Under the Immigration and Nationality Act (INA),(fn5) a non-citizen could be deported after being convicted of crimes involving "moral turpitude," e.g., drug or firearm violations, aggravated felonies, crimes of domestic violence, stalking, violating a protective order, high-speed flight from an immigration checkpoint, and a few other miscellaneous crimes.(fn6)
The grounds of deportation include criminal and non-criminal reasons.(fn7) The criminal grounds of deportation apply to a person who has been admitted to the United States and is physically present in the United States. A person charged with deportability is placed in removal proceedings before an immigration judge or even placed in expedited removal proceedings.(fn8) Expedited removal applies to certain individuals who have been convicted of aggravated felonies and are not eligible for an immigration hearing in front of a judge.(fn9) Once an alien convicted of an aggravated felony has been physically removed, he or she becomes permanently inadmissible.(fn10)
An alien is also deportable if he or she is convicted of two or more crimes involving moral turpitude (not arising out of a single scheme of criminal misconduct) at any time after admission to the United States.(fn11) The phrase, "single scheme of criminal misconduct," usually means that the crimes are performed in furtherance of a "single criminal episode" or that the two crimes flow from and are the natural consequences of a single act of criminal misconduct.(fn12) The grounds of deportability do not apply to persons adjusting status, whereas the grounds for inadmissibility do.(fn13)
In addition to possible deportation, a non-citizen who has been convicted of a crime can be subject to inadmissibility into the United States. Section 212(a)(2) of the INA covers the criminal grounds of inadmissibility.(fn14) The concept of inadmissibility generally refers to non-citizens who are not in the United States but seek to come in, but it may also refer to persons who are already physically within the United States but seek to improve their status, by, for example, adjusting to permanent resident status.(fn15) In addition, a non-citizen returning from a trip outside the United States is subject to the grounds of inadmissibility, as is someone entering the country for the first time.(fn16) Therefore, it is important that a non-citizen defendant be informed of this possible consequence of a criminal conviction before being allowed to enter a guilty plea.
When a Criminal Charge is a Conviction for Immigration Purposes
In most instances, only those criminal charges that result in convictions trigger immigration consequences. The INA broadly defines convictions for immigration purposes. The INA defines a conviction as:
[A] formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendre or has admitted sufficient facts to warrant a finding of guilt and,
the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.(fn17)
In determining whether the judge sentenced the immigrant to a specific term of imprisonment, the INA considers the entire time ordered in confinement and does not subtract any probated or suspended time or consider whether the immigrant actually spent any time incarcerated.(fn18) The INA defines even those convictions entered under state rehabilitative programs, such as deferred adjudications, as "convictions" for immigration purposes.(fn19) Adjudication is deferred when a judge allows a criminal defendant to enter a plea of nolo contendere or guilty. The immigrant is sentenced at that time but the sentence is not enforced, in order to give the defendant time to complete a series of requirements. Those requirements generally include probation, community service and a fine. Adjudication is deferred until the defendant finishes the requirements ordered by the court. If the defendant completes the requirements, the charges are dismissed. Should the defendant fail to complete the requirements, the defendant will be adjudicated "guilty," and the state will enforce the sentence. The only instance when a deferred adjudication is not considered a conviction is when the sentencing court merely orders the defendant to pay court costs.(fn20)
An adjudication is considered a conviction for immigration purposes if it meets a three-prong test: (1) there has been a judicial finding of guilt; (2) the court takes action that removes the case from those which are pending for consideration by the court, orders the defendant fined or incarcerated, or suspends the imposition of the sentence; and (3) the action of the court is considered a conviction by the...