Sports fans might liken the criminal proceeding to a late touchdown to tie the game. The immigration court proceeding is the extra point for the win.
The U.S. Supreme Court ruling in Padilla v. Kentucky makes clear that defense attorneys can no longer ignore the issue. We are required to give affirmative advice, and anything less constitutes ineffective assistance.
So, to my defense colleagues, who haven’t yet been properly greeted, let me be the first to say “welcome” to the practice of immigration law. Here are a few highlights of what you need to know:
Concepts of state defense
The first step for all defense attorneys is to ask each client whether they were born in the U.S., not whether they are a U.S. citizen.
Note the distinction carefully to avoid a trap. Foreign born U.S. citizens, who applied for naturalization post-conduct, but prior to arrest, must have their naturalization applications reviewed. The N-400 form inquires about criminal conduct for which an individual has not yet been arrested.
A misrepresentation can ultimately lead to prosecution for naturalization fraud, carrying a mandatory penalty of denaturalization.
Assuming, however, that the individual is something other than a U.S. citizen, any criminal case must be defended with the fear of deportation or inadmissibility in mind. One wrong step and the person could forever be separated from their family, and possibly sent back to a country they scarcely recall.
Our job is to educate our clients so they can make the right decision based upon what is most important to them.
Because state court is where more misdemeanors and low-grade felonies are prosecuted, it also can provide more missed opportunities to help someone’s immigration status. Never presume the situation is hopeless, and always think creatively for your client’s larger interests.
The best result is, of course, a “not guilty” verdict. But going to trial carries uncertainty. Immigration attorneys should themselves be cautioned in this regard.
Trial is probably not the right answer if it carries a low probability of success and a significant criminal penalty. Too often, defense attorneys feel pressured by immigration attorneys to go to trial on a losing case, leading not only to the immigration problem, but a term of imprisonment, too.
Short of a “not guilty,” the second best result is a plea to an offense that carries no immigration penalty. In addition, some crimes may fall into exceptions in the Immigration and Nationality Act, depending upon the individual’s criminal history and the type of removal relief or immigration benefit they will seek.
A deferred prosecution can also offer some protection, depending upon how it is formulated.
Defense attorneys should be very wary of deferrals that require admissions of guilt. Such admissions are generally considered convictions for immigration purposes.
An experienced immigration attorney can help the defense lawyer understand the rules of evidence in immigration court, and fashion a deferral with that in mind. The rare, stubborn prosecutor should be encouraged to consider a person’s immigration status during the plea bargaining process. (The Supreme Court said so!)
One final word of caution for state practitioners – the N.C. Transcript of Plea can be another trap. The document asks whether the defendant understands that the guilty plea may result in deportation or exclusion from the U.S.
Counsel should not rely solely on the plea transcript when giving immigration advice, as it contains the same language the Supreme Court proscribed as constitutionally deficient.
Federal prosecution trends
In federal court, the charges are often so severe that, short of a win at trial, few options exist to protect an individual’s status. The client is still entitled to immigration advice, however, regardless of the seriousness of the crime or the perceived hopelessness of his or her immigration circumstance.
Interestingly, prosecutions for immigration crimes in federal court rose sharply in recent years.
Those among us who practice in the Eastern District of North Carolina can attest to that anecdotally, but the objective national data also show that in 2008 prosecutions nearly doubled from the year before, and were at a level approximately four times greater than five years prior. Those prosecutions have remained at an elevated level ever since.
The types of violations most commonly prosecuted are improper entries or illegal entries following a prior deportation. We are also increasingly defending fraudulent document charges, including naturalization fraud, and charges for being an alien in possession of a firearm.
In some of these cases, a prosecutor may be inclined to recommend a lenient plea in exchange for an agreement to submit to removal from the U.S. Prior to entering these pleas, a client has the right to know whether they are giving up any opportunities to remain in the country.
Following any guilty plea, the presentence probation interviews must be attended by counsel to ensure that the clients do not make admissions that could further impact their immigration status.
Clearly, with the advent of initiatives such as the 287(g) program, Secure Communities and increased federal prosecutions, the criminal courtroom has become the battleground for our borders.
Defense attorneys should work closely with immigration counsel to protect themselves and their clients. Immigration attorneys should provide proper advice while respecting that the defense attorney knows how it really works, and can recognize the weaknesses and strengths of the criminal case.
Everybody should let the client make the ultimate decision – and never forget to document discussions in the client file.
Editor’s note: Mason practices with Smith Debnam Narron Drake Saintsing & Myers in Raleigh, where she represents clients in a range of immigration and criminal matters for both individuals and businesses.