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self-study / Criminal Practice

Mar. 24, 2023

Criminal defense attorneys need to know crimmigration law

Georgina Gannon

Supervising Attorney, The Matian Law Firm


Over 4.7 million immigrants faced removal from the United States in 2022, a 29% increase from 2021. Between 2008 and 2016, three million people were deported - more than the number of people deported between 1892 and 1997 combined. In 2017, ICE reported 83% of removals were of individuals who had contact with law enforcement. Many of these convictions were decades old, misdemeanors, infractions or even just being arrested. Although the Supreme Court held since 1893 that deportation is not a punishment, criminal immigrants face additional penalties from convictions than U.S citizens. Fong Yue Ting v. United States, 149 U.S. 698 (1893).

Despite generic advisements given, there are more consequences than deportation, inadmissibility or denial of naturalization. Noncitizens face mandatory detention by immigration, being barred from common relief from removal, including asylum, and permanently barred from re-entering the country. A decades old single arrest for minor possession of a controlled substance for sale can bar you from legalizing. The presumption of innocence doesn't apply if immigration has "reason to believe" you were drug trafficking.

Penal Code Section 1016.2(e) states "Defendants who are misadvised or not advised at all of the immigration consequences of criminal charges often suffer irreparable damage to their current or potential lawful immigration status, resulting in penalties such as mandatory detention, deportation, and permanent separation from close family. In some cases, these consequences could have been avoided had counsel provided informed advice and attempted to defend against such consequences." Because of this, California provided protections for noncitizens. Duties are placed on defense attorneys, prosecutors and the Court. Defense counsel are required to give case specific advice on immigration consequences and try to defend against those consequences. Passing the duty to an immigration attorney is not sufficient. There is also a duty to not affirmatively misadvise. Section 1016.3(b) requires prosecutors to consider avoiding immigration consequences when plea bargaining. The Court also must advise of potential consequences under 1016.5(a). California enacted Section 18.5(a), changing misdemeanor exposure from 365 days to 364 days and made it retroactive. One extra day of jail matters as some crimes only become harmful "aggravated felonies" with a sentence of 365 days. Alternatives to drug charges such as diversion and newly enacted Penal Code Section 372.5 show the legislature is constantly seeking to protect noncitizens.

All of this sounds great, yet the reality is different in day-to-day practice. The Bar doesn't recognize crimmigration as a specialist area. Without a specialist, attorneys and defendants get stuck between either a criminal or an immigration attorney, with neither necessarily being well versed in the other. Frequently, immigrants seek to vacate their convictions, claiming they did not understand the consequences. Noncitizens file applications to naturalize or travel, not knowing they are subject to removal. Sometimes, they've obtained an expungement, being told their case is "dismissed" and sealed. Immigration, tasked with public safety and regulation of who can be here, don't take the same, lenient view. The general rule is that immigration looks at the validity of the conviction and whether there was a legal defect at the time, such as ineffective assistance of counsel.

California was ahead of Padilla v Kentucky, 559 U.S. 356 (2010), requiring immigration advisements decades prior. With the state regularly enacting new protections for noncitizens, what else can we do? Well for one, how are we checking what advisements were given? The Court's duty when taking a plea is to give standard advisements and ensure the plea is knowingly, voluntarily and intelligently given. If the Court were to inquire further about what the defendant was advised and whether this is correct, this may conflict with Penal Code Section 1016.5(d), which holds that a noncitizen defendant shall not be required to disclose their status to the court or have it discussed. Alternatively, we could provide more advisements. San Diego's plea forms have almost an entire page dedicated to immigration consequences. The form explains in detail that defendants should consult with an attorney, especially if the offense may be an aggravated felony, controlled substance offense, firearm offense, etc. It goes on to explain differences between state and federal law, how a misdemeanor can be an aggravated felony and uses mandatory language - you will be subject to removal. Other counties don't follow this, opting instead for the simple 1016.5 advisement that you may have consequences. We all know when boarding a plane that it may crash, but if you're told it will crash your decision to fly would be entirely different.

There are some offenses that clearly cause immigration consequences, including controlled substance offenses. Failing to know the differences for immigration purposes between Health and Safety Code Section 11378 and divisible 11379 was held to be ineffective assistance of counsel. People v. Bautista (2004) 115 Cal. App 4th 229 8 Cal. Rptr 3d 862. When Judges give advisements at sentencing, we could add an additional advisement for certain offenses. For example, "If you're not a citizen of the United States, a conviction of an offense relating to a federally defined controlled substance will subject you to deportation and/or inadmissibility. You should also be advised that future rehabilitative relief, such as an expungement, will not necessarily remove the conviction for immigration purposes."

With resources such as the "ILRC's quick reference chart" (Immigrant Legal Resource Center), there is no reason we should be failing in our duties. Criminal attorneys too often believe because they are not immigration attorneys they don't have to advise specifically or try to protect against the consequences. A simple charge change can save a noncitizen from being torn away from their family. The law has intertwined criminal convictions and the penalties of removal for over a century. There is no excuse to not know crimes-based inadmissibility and deportation grounds and bars to naturalization. There is no right to counsel in immigration proceedings so we must do everything we can in criminal proceedings. Push for a charge change, be careful what your client admits, even if it's later "withdrawn" for completion of a program and consider sentencing, even for probation violations. We need to protect noncitizens. We need to know crimmigration law.


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