Criminal Law Crimmigration A Practitioner's Guide Cheryl Geiser C
ongress has long exercised broad plenary authority over who may enter the United States, remain in the United States and become residents of the
United States. Tis authority is used to refuse admission or residency to certain individuals found to have engaged in criminal activity.1
times with respect to the penalization of criminal conduct by foreign nationals.2
We are currently living in restrictive What may seem like a routine criminal
case to a seasoned criminal practitioner may actually be an immigration abyss for the client. It is essential that attorneys practicing criminal law and representing foreign nationals be savvy with respect to the immigration consequences of criminal convictions or activity. Te Supreme Court of the United States recently held that constitutionally competent counsel must advise clients that a conviction would subject an individual to automatic deportation finding that:
It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.3
Tus, representing a foreign national charged with a
crime requires an extremely detailed analysis of the charges brought against the client vis-á-vis the immigration consequences associated with the charge, and a sophisticated development of defense goals for the foreign national. A prudent criminal defense attorney will work hand-in-hand with an immigration attorney once it appears that his client is not a citizen of the United States. Tis will ensure that, when possible, immigration consequences for criminal
conduct can either be avoided or limited, and when there is 1 Alien Act of 1978, 1 Stat. 570; Act of March 3, 1875, 18 Stat. 477; Act of February 26, 1885, 23 Stat. 332; Act of February 23, 1887, 24 Stat. 414; Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA); Div. C of the Omnibus Appropriations Act of 1996 (HR 3610), Pub. L. No. 104-208, 110 Stat. 3009 (IIRAIRA).
2 U.S. Government Printing Office, 2007 Yearbook of Immigration Statistics (Table 37), available at
www.dhs.gov, Immigration Statistics.(In 1984, only 1,000 people were removed based on criminal charges or convictions; in 2007, close to 100,000 were removed based on criminal charges or convictions.)
3 Padilla v. Kentucky, 130 S. Ct. 1473-2010.
no immigration alternative, the client can be advised as such, and begin to make preparations and arrangements for his return to his home country.
Consequences of Criminal Activity Tere are three main categories of offenses that can damage
an individual’s immigration status or potential for immigration status: (1) deportability grounds, (2) inadmissibility grounds, and (3) aggravated felonies. Deportability grounds subject an individual otherwise in the United States pursuant to valid lawful status to deportation.
Inadmissibility grounds can bar
an individual from extending their status, changing their status, applying for permanent residency or entering the United States if they are outside of the United States. If an individual entered the United States without inspection, he will be found inadmissible and placed in removal proceedings.
Finally, the most serious
class of offenses involves aggravated felonies. An aggravated felony conviction is a ground for deportability and can prevent an individual from changing his or her status, becoming a resident or applying for relief from removal. It is important to note that the list of crimes considered to be aggravated felonies for immigration purposes includes many misdemeanors.
Trial Reporter / Summer 2011 17
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