California Criminal Defense of Immigrants
ABOUT THIS BOOK
EXCERPT FROM CHAPTER 1
§1.1 I. THE MISSION OF THIS BOOK
This work has two central goals:
• Assist counsel with protecting the immigration status of noncitizen defendants facing criminal charges; and
• Assist counsel with mitigating the harm the immigration status of the noncitizen-defendant can do in a criminal case.
The overlap between criminal and immigration law has become complex and fraught with risk as Congress increasingly relies on noncitizens’ criminal histories to trigger
• Mandatory immigration detention (without the possibility of release on an immigration bond);
• Inadmissibility; and
• Bars to relief that might otherwise prevent “removal” (a term that can include both being deported out of, and barred from admission into, the United States).
Preventing an immigration-related disaster. Defense counsel’s duty to protect a defendant’s immigration status has received increasing attention, culminating in the U.S. Supreme Court’s 2010 decision recognizing that deportation (and other adverse immigration consequences) has become, in effect, an additional penalty inflicted on noncitizens as a result of criminal cases. Padilla v Kentucky (2010) 559 US 356, 130 S Ct 1473 (counsel’s failure to advise, or affirmative misadvice, concerning actual immigration consequences at plea constituted ineffective assistance of counsel in violation of U.S. Constitution). Beyond advising the defendant about the immigration consequences of a proposed disposition, if it is important to the defendant, defense counsel also must attempt to prevent or lessen the consequences. As the Court acknowledged, preserving the ability to remain in the United States “may be more important to the client than any jail sentence.” Padilla, 559 US at 368, 130 S Ct at 1483. Defense counsel may do this either by negotiating an immigration-neutral disposition, or, if necessary and advisable, taking the case to trial. See Padilla, 559 US at 373, 130 S Ct at 1485 (immigration as a factor in plea bargaining); People v Bautista (2004) 115 CA4th 229, 241 (counsel ineffective for failing to recommend alternate plea to lessen immigration consequences).
Preventing a criminal-case disaster. Defense counsel also has the duty to try to minimize the conviction and sentence resulting from the criminal case. Immigration authorities are increasingly identifying noncitizen defendants during the pendency of a criminal case and lodging “immigration holds” against them, signaling an intention to consider removing noncitizen defendants from the United States on their release from criminal custody. Because it is impossible to challenge immigration charges until defendants pass into immigration custody, and because many criminal convictions, including misdemeanor convictions, trigger “mandatory immigration detention,” noncitizen defendants are effectively barred from the benefit of many alternative resolutions to incarceration that might otherwise be available as part of the disposition of the criminal case, such as work or school furlough, drug or alcohol treatment, anger management classes, or even release on probation or parole. For more information on immigration holds and detention, see chap 4. In order to be effective in minimizing the disposition of the criminal case for a noncitizen defendant, defense counsel must ascertain the risk of mandatory immigration detention and attempt to eliminate it; only then can the defendant be released from custody to participate in alternatives to incarceration.
§1.2 A. For Criminal Counsel
This book is primarily designed to help criminal defense counsel. It focuses on preserving noncitizen defendants’ immigration status, but counsel can also use the techniques described here to defend against the purely criminal consequences of a criminal case. For example, if a defendant is not fluent in English, precisely identifying not only the defendant’s language but also the exact dialect is important to enable counsel to discuss with the defendant not only the immigration consequences of the case, but also the facts of the case as they relate to guilt or innocence. The same is true of learning about the defendant’s culture, immigration situation, detention status, and many other topics discussed in this book.
If criminal defense counsel consults effectively with an attorney who is an expert in criminal immigration law, he or she does not need to learn all the complexities of immigration law or keep up to date with developments; the expert will do so. Some immigration counsel are experts in the immigration consequences of crimes. Increasingly, defender organizations are contracting with experts or training their own in-house experts. Criminal defense counsel must consult directly with an expert or do detailed immigration research themselves, on every case, to make sure the strategy is the correct one to achieve the best possible outcome with respect to both the criminal and immigration goals of the client.
In 2013, California enacted Bus & P C §§6240–6243 and 22443.1 and amended Bus & P C §§22442 and 22442.3 to prohibit attorneys and immigration consultants from demanding or accepting payment for any “immigration reform act services” before enactment by Congress of an “immigration reform act” that authorizes undocumented immigrants to attain lawful status under federal law, and to require attorneys who provide such services to inform their clients where they can report complaints about the attorney.
§1.3 B. For Immigration Counsel
Immigration counsel will also find this book useful. It may assist them with advising and working effectively with criminal defense counsel, and directing them to additional sources of information. Immigration counsel also can learn about the criminal-law world so as better to represent their clients in immigration proceedings.
§1.4 C. For Both Specialties
Both criminal and immigration counsel will find this book useful as a discussion of the overlap between criminal and immigration law. In particular, the client questionnaire in §2.33 (Defendant Immigration Questionnaire—Basic Information) is helpful for recording the essential information necessary to develop a plan for noncitizens facing criminal charges. The essential knowledge base required for criminal immigration law includes three areas of law:
• Immigration consequences of criminal acts and convictions;
• Post-conviction relief for immigrants; and
• Criminal defense of immigrants.
This book provides an outline of these topics, with references to the most pertinent resources in the field.
§1.5 II. THE PROBLEM PADILLA INTENDS TO ADDRESS
Nearly 40 million U.S. residents were born abroad. Foreign-born residents include naturalized U.S. citizens, lawful permanent residents, undocumented persons, refugees, asylees, students, temporary workers, and others. About 11 million foreign nationals have no legal status in the United States. Another 11 million are lawful permanent residents. The U.S. Census reports that California leads the nation in immigrant population, with more than 25 percent of the total immigrants in the United States. One out of four people living in California was born in a foreign country. One out of two children living in California resides in a household headed by at least one foreign-born person.
Foreign-born residents commit crimes less than half as often as the average U.S.-born citizens. Their crimes are also somewhat less serious, on average, than the crimes of U.S.-born adult men, who are incarcerated at a rate more than 2-1/2 times greater than that of foreign-born men. See Tooby, Tooby’s Guide to Criminal Immigration Law §1.2 (2008) (available free at http://www.NortonTooby.com). Nonetheless, the federal government has greatly escalated the rate at which immigrants are deported. In 2001, the government removed 71,597 noncitizens on criminal grounds, an increase of more than 36 times the number of removals in 1986. In 2005, the number of immigrants deported for criminal convictions grew to nearly 90,000 a year. Removals have continued to increase, resulting in a major industry, with expanded enforcement agencies, bureaucracies, special immigration court systems, and detention centers holding many thousands in mandatory immigration detention without possibility of bond. See D. Kanstroom, Deportation Nation: Outsiders in American History (2010). According to Immigration and Customs Enforcement (ICE), by 2013, deportations had nearly quadrupled to a total of 368,644 removals, about 80 percent with criminal issues. See https://www.ice.gov/doclib/about/offices/ero/pdf/2013-ice-immigration-removals.pdf.
During the criminal process, court and counsel inform the criminal defendant of the direct penal consequences of the case. Historically, they have been less diligent about informing defendants of the immigration penalties that flow from a proposed disposition, despite the fact that in many cases the immigration penalties are far more serious. Immigration consequences of criminal conviction may include months or years in immigration detention, permanent banishment and separation from family in the United States, or a return to a country where it is well established that the person will be persecuted. Criminal defense counsel are, however, becoming increasingly aware of the need to protect their clients against immigration consequences. See Padilla v Kentucky (2010) 559 US 356, 130 S Ct 1473.
Unless they have investigated the immigration facts, researched the pertinent immigration law, and obtained detailed knowledge of the exact immigration consequences of the case and how to avoid them, counsel’s efforts are often insufficient to protect their client’s immigration status and prospects. Many noncitizen defendants will be blindsided by later immigration detention and deportation that could have been avoided. It is not enough to identify the problem by giving accurate advice on the actual immigration consequences of the final disposition; the best interests of the client also require the criminal attorney to attempt to prevent those consequences. Close consultation between criminal and immigration counsel is necessary to prevent unnecessary immigration disasters from ruining defendants’ lives. Counsel must precisely analyze the exact immigration threat, create an antidote tailored to the specific problem, and attempt to obtain that disposition of the criminal case. Moreover, counsel must also take care to prevent their client’s immigration status from sabotaging the criminal dispositions most important to the client.
§1.6 III. BASIC PROCEDURE TO PROTECT NONCITIZEN DEFENDANTS
The basic approach to protecting defendants from the adverse consequences of the interplay between criminal and immigration law is quite simple:
• Obtain exact information on the defendant’s immigration situation. See chap 2.
• Consult a criminal immigration law expert to determine realistic goals that can minimize both immigration consequences and damage to the criminal case. See chap 3. (An alternative is for criminal counsel to do the immigration law research, but this is risky unless the attorney also has experience in the immigration world. Book learning, alone, can be insufficient.)
• Determine with the defendant how important the immigration goals are, as opposed to criminal defense goals, and learn how the defendant wishes to resolve any conflict between the two. See chap 3.
• Formulate a strategy that balances the adverse immigration consequences with the other consequences of the criminal case, in light of the defendant’s desires. See chap 3.
• Use standard criminal defense techniques to try to achieve the defendant’s goals. See chaps 4–20.
Counsel should continue to consult with an immigration expert since additional immigration questions frequently arise during the course of the case. See chap 3. And counsel must accurately inform the client of the immigration consequences of the final disposition of the case and arm him or her with information on how best to confront the immigration authorities. See chaps 16, 21–22.
This same approach is applicable no matter what procedural stage the criminal case has reached. It applies to the beginning of a criminal case; during plea bargaining, litigation, sentencing, probation violation proceedings, and juvenile proceedings; and during appeal and other post-conviction proceedings. See individual chapters for discussion of each stage of a criminal case.