Criminal Law and Immigration: Cross-Currents

At last, the interconnectivity between immigration law and criminal law has gained the attention it has long deserved. Immigration practitioners have for years encouraged criminal defense attorneys to take more of an interest in their client’s immigration status when resolving their criminal law matters.

While many, if not most, criminal law practitioners would properly consider the immigration consequences of a criminal conviction on a client’s immigration status and advise them accordingly, the unfortunate truth is that some would routinely ignore the issue or provide grossly inadequate or inaccurate advice – often times with devastating consequences. Recently, the U.S. Supreme Court issued a wake-up call to the criminal defense bar: you ignore the immigration consequences of your client’s criminal conviction at your own peril.

Padilla v. Kentucky, explicitly held, “that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” This holding is particularly significant because it clearly states that the failure to provide proper advice is a violation of a defendant’s Sixth Amendment right to counsel, and therefore a “constitutional” violation, as well as opening defense counsel to a claim of ineffective assistance of counsel. Futhermore, if a conviction is vacated based on a constitutional ground, it may no longer be used as a basis for removability under the immigration laws. Prior to this decision, if a criminal conviction formed the basis for an individual’s removability, and the conviction was vacated solely to prevent deportation or on other collateral grounds, the conviction would remain for immigration purposes and could be used as a ground of deportability.
While, the full, far-reaching effect of this decision has yet to be determined, it has provided the basis for immigration and criminal counsels to work together to attack previous convictions on the basis of ineffective assistance by prior criminal counsel. Resulting motions to vacate, pursuant to NY Criminal Procedure Law §440.10 rely on the contention that their clients failed to receive the proper advice that they critically needed to make a decision regarding a guilty plea and, consequently, their immigration status and ability to remain in the United States was in jeopardy. Such motions have resulted in varying degrees of success so far.1
Some courts have held that the holding of Padilla did not create a new rule of criminal procedure; rather, it only clarified the Supreme Court’s long established rule relating to ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). For that reason, several courts have applied Padilla retroactively and vacated criminal convictions.2 However, as indicated in People v. Ramirez,3 even if a court finds that Padilla does apply retroactively, success is not guaranteed. In Ramirez, the Court, applying Padilla in reviewing the facts contained in the record, held that the defendant failed to establish that he received ineffective assistance of counsel.
The success rate concerning the vacating of past convictions, under Padilla is impossible to quantify at this point. It does appear that Padilla will encourage criminal defense attorneys to recognize the underlying potential negative immigration consequences confronting their clients, and, to proactively seek to ameliorate them. While a main objective of a criminal defense attorney is to reduce, if not completely avoid, penalty from the criminal justice process (imprisonment, fine, probation, etc.), the goal of immigration counsel in such a situation, to whatever extent possible, is to safeguard the individuals’ immigration status, and the ability to continue living and working in the United States with their families. While these goals often intersect and converge, there are times when they do not. For example, a criminal defendant getting “a good deal” or “no jail time”, effectively, is irrelevant if ultimately the individual is deported after the sentence is served.
For example, pleading to a particular statute resulting in 15 or 30 days of incarceration, may, in fact, be far more desirable than accepting a plea under some other statute resulting in no jail time, but leading to deportation. While this may seem like an oversimplification, such strategic scenarios do emerge not uncommonly in real life Criminal Law practice and most such situations are highly fact driven.
For example, is the defendant a permanent resident? How long has he or she been a permanent resident? What prior convictions, if any, are there and, most particularly, what are the specifics of said prior convictions? Does the defendant have family or other compelling roots here? Is the criminal statute in question divisible and, if so, could taking a plea under even a different subsection divert the outcome more favorably? Is there an “amount of loss” mentioned? When was the crime committed? How much marijuana was involved? The list of such potential highly probative but crucial questions can go on and on and on.
It must be noted that these queries are used by immigration counsel not only to determine a person’s deportability, i.e., whether a particular predicate conviction renders a criminal defendant removable from the United States. But, more importantly, once found removable, these queries will assist immigration counsel to determine whether such a defendant will actually be removed, or whether there is relief available in removal proceedings that will allow the individual to remain in the United States.
In other words, even when a conviction appears reasonably inevitable and, most especially if the client is an “illegal [undocumented] alien,” such analysis will assist immigration counsel in maintaining eligibility for relief from removal for their clients. There may be little that even the most accomplished criminal or immigration attorney can do to prevent a client from being deemed “deportable.”
The Padilla decision clearly requires that counsel recognize that there is a potentially devastating confluence between Criminal and Immigration Laws, and that such recognition must be addressed in a proper manner. At a minimum, Padilla requires counsel to instruct criminal defendants to seek the advice of competent immigration counsel. Providing wrong advice or providing no advice, and remaining silent on the issue, is explicitly prohibited.4
The effect of Padilla thus far in opening the lines of communication between the Criminal and Immigration barshas been positive and hopefully, long-lasting. Mr. Kohler serves as Chair of the Immigration Law Committee and practices immigration and customs law in Syosset.
Mr. Kohler serves as Chair of the Immigration Law Committee and practices immigration and customs law in Syosset.
1. Noeleen G. Walder, “Courts Differ About Retroactive Effect of High Court Counsel Ruling,”, July 27, 2010.
2. See e.g., People v. Garcia, 4050-06, 2010 NY Slip Op 20349 (Aug. 26, 2010); People v. Ortega, 29 Misc.3d 1203(A)(Sept. 28, 2010)(unreported decision)(“Because this Court finds that Padilla merely applied the old rule described in Strickland to a specific set of facts, Defendant’s Padilla claim applies on collateral review.”)
3. 29 Misc.3d 1201(A), (Sept. 17, 2010)(unreported decision),
4. Padilla, at 1484.