On March 31, 2010, the Supreme Court handed down Padilla v. Kentucky, 559 U. S. ____ (2010). In Padilla, a 7-2 majority of the court held that attorneys who represent non U.S. citizen clients in criminal cases have a duty to inform their clients of the immigration consequences of a criminal conviction. The court went on to further refine that requirement as follows:

1. If the underlying criminal conviction would clearly result in a immigration consequence such as deportation, then the attorney should advise the client as such.

2. If the situation is not clear or the immigration law is too complex on that particular issue, then the criminal attorney should refer the client to an attorney competent in immigration issues to resolve the question.

The rules of professional responsibility of every state as well as the ABA Model Rules of Professional Conduct require that every attorney may be competent in a given area of law before providing advice in that area. “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” ABA Model Rule 1.1.

The Attorney’s Duty

Obviously, there are many criminal attorneys who are not well versed in immigration law and vice versa. It would therefore be inappropriate and perhaps even malpractice to give advice on an issue on an issue which the attorney is not comfortable with. Nevertheless, Justice Stevens, writing for the majority appears to require attorneys to give advice on immigration consequences when the answer is “clear”. However, what appears clear in immigration law can quickly become unclear. Indeed, the Supreme Court recognized that immigration law is a very complex and confused issue. Justice Alito’s concurring opinion, joined by Chief Justice Roberts provided several illustrative examples of this lack of clarity. For instance, a non-citizen is deportable for either one or two “crimes involving moral turpitude”(CIMT). However, nowhere in the statute is a definition of what constitutes a CIMT. Therefore, the decisions of the immigration judges, the Board of Immigration judges, and the federal circuits are all over the place when it comes to what is a CIMT and what is not. The same is true for definitions of crimes that are aggravated felonies. Adding to these inconsistencies is a glaring error in the Immigration and Nationality Act (INA) which confuses the definitions of exactly what sentences constitute aggravated felonies.

The purpose of this article is not to make the reader an expert on the immigration consequences of criminal convictions. Rather, the purpose is to simply point out the crimes listed in the Immigration Act that have immigration consequences. For purposes of brevity, the non-US citizen client is called the “alien”. Deportation is now called “removal” under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

For an immigration consequence to inure, the alien must be found guilty by a judge or jury, pled guilty, or admitted to the elements of the crime. An alien can thus be “convicted” for a crime without even being formally convicted by a judge. Obviously, this article is not intended as specific legal advice on your specific legal situation, and so you need to consult a competent immigration attorney for guidance with your specific circumstances.

Is the client an alien?

First of all, to understand the law better we must ascertain that the client is indeed an alien. It is not uncommon for aliens to believe that they are citizens when in fact they are not. A common example is that of an alien resident in the US for many years – perhaps even decades, married a US Citizen spouse and had children born in the USA. A person may inadvertently be a citizen and not even know it as when they have a parent or parents who are US Citizens and even grandparents who might have been US Citizens. Given these scenarios it is important to ascertain the citizenship status of a client at the very outset. It is safe to assume that if a client cannot state with certainty that he or she was born in the United States, then that client is not a citizen. Thereafter, further inquiry should follow regarding the client’s parentage, the citizenship of the parents and grandparents and any close US Citizen relatives.

If it is not clear that the client is a US Citizen then the attorney owes an even greater duty to recommend the client consult an immigration attorney for evaluation of that client’s case. If the client proves to be an alien, it is critical under Padilla that the client is informed of and understands the immigration consequences of a criminal conviction. In Ohio, in addition to the warning under RC 2943.031, in light of Padilla, I would not be surprised if judges now begin to specifically ask non-citizen clients if they have consulted with counsel and understood the immigration consequences of a guilty plea.

A Plea Bargain is often a One-Way Ticket

Taking a plea to a criminal conviction can be potentially dangerous if the plea does not deflect deportation or other consequences. Also please remember that under immigration law, pleading to the elements of a crime as a condition to obtain admission to a rehabilitation is also considered a conviction for immigration purposes. The INA’s definition of a conviction is very different from what we would generally consider a conviction. In other words, anytime an alien pleads guilty or no contest to a removable offense, the alien becomes removable for immigration purposes. Even if the record is subsequently expunged, the conviction always remains a threat against the alien. In most instances, there is no statute of limitations to protect an alien from crimes committed even decades ago. A majority of the Federal circuits have strictly limited the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001) – which provided some relief to aliens convicted of crimes prior to the effective dates of AEDPA and IIRIRA – to apply to only a handful of criminal offenses.

How Does “Immigration” find out about an alien’s conviction?

In Ohio, under RC 2909.30, clerks of court are required to notify the Department of Homeland Security if a suspected alien is convicted of a felony. In addition to state statutes, ICE (Immigration and Customs Enforcement) runs a “Criminal Alien Program”, designed to target non-citizens in jails and prison to “identify, process, and remove criminal aliens.” ICE also runs the “Secure Communities” program, which uses fingerprint information on booking to identify aliens through various databases, thus ensuring ICE involvement in the case through resolution.

Analyzing grounds for removal

The following is a summary of what constitutes a majority of the grounds for deportation (Now called “removal” after IIRIRA, 1996). There are three main sections of the INA listing criminal or other offenses that are considered removable. Rather than list each and every offense in this article, it would be better to provide a broad overview of each section, concentrating on the most commonly encountered crimes. First, general crimes and a plethora of other offenses are covered by INA § 237. Crimes requiring the exclusion (bar to entry) of aliens from the United States are listed in INA § 212. Finally, aggravated felonies are found at INA § 101 (a)(43). This article does not discuss federal, state or local crimes that would constitute removable offenses under the INA. Every criminal statute includes differing elements and therefore each has to be examined separately. There is no one “golden rule” for all crimes and all convictions.

Therefore, while this section deals with crimes carrying immigration consequences, it is by no means intended as a definitive resource on the subject as that would be well beyond the scope of this article. The following is intended purely as a quick reference on various issues so the criminal defense attorney can get a idea of the immigration consequences that his or her client may face. I have covered “Relief from Deportation” issues extensively on my website, immigration-america.com. You will see that there are very few avenues to help a client, especially one convicted of an aggravated felony. As the Supreme Court admonished, if the law is not clear, the duty is to inform the client to obtain competent immigration assistance.

As a practitioner, I would go one step further and caution all attorneys to not only instruct the client to obtain such assistance but also interface directly with the immigration attorney and to evaluate any proposed plea bargain or other scenario with the immigration attorney before committing the client to a particular course of action. The immigration attorney should be treated as an integral part of the criminal defense team, not just a cameo appearance. Too often I have analyzed immigration options for clients in criminal proceedings only to never have their criminal attorney contact me about any further possible ramifications of a final plea deal.

Removable Offenses under the INA

Having provided what appear to be all of the necessary caveats, the following is an overview (not an exhaustive or complete list) of the various grounds for deportation under federal, state or local criminal statutes as set forth under § 237 of the INA:

• A single crime involving moral turpitude carrying a maximum possible sentence of more than one year and is committed within 5 years of entry to the USA, or two or more crimes of moral turpitude committed at any time after entry regardless of the duration of the sentence. (ie, two petty theft offenses combine to make the alien removable)

• Conviction of an aggravated felony (see INA § 101(a)(43) and discussion below)

• High speed flight from a US-immigration checkpoint

• Failure to register as a sex-offender

• Controlled substance violations – except for a one-time possession of 30 grams or less of marijuana for personal use

• Firearms offenses

• Crimes of Domestic Violence, Stalking, Violation of a Protective order, or Crimes against children

• False claim to US Citizenship or unlawful voters – even voters who registered believing they were US Citizens.

• National security crimes – Espionage, Sabotage or treason; overthrow of the US government; terrorist activities; genocide; crimes against humanity; serious violations of religious freedom; threats against the President; conspiracy against a friendly nation.

• Public charge – an alien who falls on public assistance within five years of legal entry to the United States.

Excludable Offenses

We will now consider the numerous grounds for exclusion of an alien attempting entry to the United States under INA § 212. For most of the grounds of removal, there is a corresponding ground of exclusion. While § 237 is applied to aliens within the USA, to “remove” or deport them from the US, § 212 is applied to aliens seeking admission or readmission to the USA.

Permanent resident or non-immigrant aliens reentering the USA after a trip abroad may be subject to exclusion if they committed a crime that falls within the exclusionary grounds of INA § 212 (a)(2) which include multiple criminal convictions, prostitution, drug offenses, and human trafficking. The national security and terrorist equivalents of INA § 237 are set forth under INA § 212(c)(3).

Thus, the excludable offenses in INA § 212 include many of the offenses listed in INA § 237 as discussed above and add other grounds for exclusion such as convictions in other countries. In addition, aliens may also be excluded for a variety of other reasons, such as intent to permanently immigrate to the USA, health related grounds, failure to support themselves, or lack of employment opportunities in the USA, all of which are outside the scope of this article.

“Aggravated Felonies” under the immigration law

INA §101(a)(43), subsections (a)-(u) define what constitutes an aggravated felony under immigration law. Please note that in many of these cases, an aggravated felony under immigration law may not be considered such under a state law. Therefore, even if the conviction is not considered an aggravated felony under state or federal criminal law, it may very well rise to the level of an aggravated felony under federal immigration law. Here are some of the crimes which constitute aggravated felonies under the immigration law:

• Murder, rape or sexual abuse of a minor;
• Illicit trafficking in a controlled substance including a drug trafficking crime;
• Illicit trafficking in firearms or destructive devices or explosive materials;
• Money laundering, or monetary transactions in property derived unlawfully, where the amount exceeds $10,000;
• Explosive materials offense or firearms offenses including under the Internal Revenue code;
• A crime of violence for which the term of imprisonment is at least one-year;
• A theft offense or burglary offense for which the term of imprisonment is at least one-year;
• Ransom;
• Child pornography;
• RICO offenses or gambling;
• Prostitution and human trafficking;
• National security, sabotage or treason, protection of the identity of undercover intelligence agents;
• Fraud or deceit in which the loss to the victim exceeds $10,000 or the revenue loss to the government exceeds $10,000;
• Alien smuggling;
• Reentry to the United States after previously being removed;
• Mutilation or altering of a passport or other such entry or immigration document;
• Failure to appear for service of sentence of a term of five years or more;
• Commercial bribery, counterfeiting, forgery or trafficking in vehicles after altering the VIN numbers for which the term of imprisonment is at least one-year;
• Obstruction of justice, perjury, or subornation of perjury or bribery of a witness for which the term of imprisonment is at least one-year;
• Failure to appear before a court to answer to a felony charge with a minimum two-year sentence;
• Any attempt or conspiracy to commit any offense described as an aggravated felony above.

As you can see, the list of offenses that attract removal is extensive, intricate, and formidable. How does a criminal defense attorney even begin to learn all the intricacies and nuances of immigration law and crimes which even the Supreme Court has acknowledged that “nothing is ever simple with immigration law”? Indeed, even within the universe of immigration attorneys, there are many who choose not to involve themselves in immigration defense.

Some final thoughts: Advise and Document!

Since the criminal defense attorney is not necessarily competent in the area of immigration law and therefore cannot hold out as such to the client, it would be advisable for the criminal defense attorney to advise the client to seek competent immigration counsel. Likewise, when it is not clear that the conviction for a certain criminal charge would result in a removable consequence, then it is incumbent on the criminal defense attorney to advise the client that the law is not clear or that the attorney is not certain of the application of the law and that the client should consult a competent immigration attorney. Both these approaches are set forth in the Padilla decision in the majority and in the concurring opinion respectively. The majority decision and the concurrence can be reconciled with a simple common sense approach: where the effect of a criminal conviction is clearly removal or at least a possibility of removal exists, the criminal defense attorney should caution his or her client that removal is a possible consequence of the conviction. I would put this in writing to the client.

As a practical matter, unless a criminal attorney is well versed in immigration law, it might be advisable for the criminal defense attorney, in most cases to advise the client that the attorney is not competent in immigration law and is not comfortable rendering advice on that matter and that the client should seek competent immigration counsel before taking a plea or proceeding to trial. The attorney should further advise the client that they should retain immigration counsel to provide advice to and interact with the criminal defense attorney so that any possible plea bargain may be evaluated in the light of potential immigration consequences. Again, put this in writing. It would not be advisable to contact an immigration attorney on the morning of the arraignment in order to determine if a plea should be taken. Immigration law is far too complex to put an immigration attorney in that position. Likewise, the criminal attorney possesses a wealth of knowledge on the criminal statutes and possible alternative offenses. Working together, the criminal attorney and the immigration attorney will be able to craft a better resolution in most cases. While it is reasonable to expect prosecutors to want to obtain a conviction, in many instances, when confronted by a set of sympathetic facts, a prosecutor may well be inclined to work with defense counsel to ameliorate the immigration consequences of a conviction.

In conclusion, with a well measured dose of common sense and some proactive intervention, it is possible for every attorney to follow the Supreme Court’s decision in Padilla v. Kentucky to ensure our client’s right to competent representation and our duty, as attorneys, to represent them competently.

Copyright, Farhad Sethna, Attorney, 2010