Criminal lawyers and their clients often find themselves in a difficult predicament when it comes to representing criminal defendants who are not citizens of the United States. A criminal lawyer may, from a pure criminal law perspective, act brilliantly in crafting a plea arrangement for his client, but at the same time, fail miserably, where that plea arrangement does not fully take into account the immigration consequences of conviction. Depending on the alien's circumstances, a plea to a crime which is classified from an immigration point of view as an "aggravated felony," may subject the alien to nearly certain deportation, though the plea arrangement allowed the alien to suffer minimal criminal consequences. Other crimes classified as Crimes Involving Moral Turpitude (CIMTs) may also trigger "Removal" proceedings, though a broader array of immigration defenses or relief applications may be considered by an Immigration Judge (IJ) when the alien is charged with one or more CIMTs.
How much immigration law does a criminal lawyer really have to know in order to competently represent a non-citizen in the criminal courts of the United States? A considerable amount, it would now appear, in light of Padilla v. Kentucky, decided on March 31, 2010 by the U.S. Supreme Court. The Supreme Court in essence held in Padilla, that where the deportation consequences of a criminal plea are clear, the criminal lawyer has "the duty to give correct advice..." The challenge that this presents for the criminal lawyer is obvious; criminal law and immigration law are separate and distinct specialties, both highly complex in their own right. Criminal lawyers are not typically well versed in immigration law (though many have some rudimentary understanding of the potential for certain criminal convictions to trigger removal proceedings). On the other hand, a great many immigration litigation lawyers (lawyers who represent clients in the immigration court and during immigration appeals) do not regularly represent defendants in criminal courts. Often with significant preparation, such lawyers may cross the boundaries of their specialties, achieving a satisfactory result for the client. A great many immigration lawyers are well versed in moving to vacate guilty pleas on behalf of criminal aliens in criminal court, but may not otherwise be up to date in the procedural or substantive aspects of day-to-day criminal court practice.
A criminal alien (that is a person with a green-card or who is undocumented and is facing criminal charges in a court of law or has already been convicted of a crime) must consider very carefully the experience of his lawyer, with respect to both criminal and immigration law. Where a criminal attorney is not well versed in Immigration "Consequences of Crimes" practice, the alien should require that his counsel collaborate with a seasoned immigration litigation lawyer, and receive a "consequences of crimes" opinion from such lawyer, before he or she pleads guilty or no contest. This, of course, will drive up the cost of the alien's legal representation, since the immigration lawyer must charge for his time and expertise in drafting the opinion. The criminal lawyer should then use the immigration lawyer's opinion in advising the alien, crafting a plea arrangement, or making a decision to take the case to trial. On the other hand, in this attorney's opinion, an immigration lawyer who is taking on the criminal defense of an alien and who has not practiced in immigration court for an extended period of time, should commit him or herself to observing the procedures and practices of the particular criminal judge, and should bring him or herself up to date with the most current criminal law related to the particular case. I believe that the lawyer should also be up front with the client that he or she is primarily and immigration litigation lawyer and that the client should be hiring him or her because the immigration consequences of conviction may be as or more severe than the criminal consequences.
Having said all of this, it is important for alien criminal defendants to understand that even with the best collaboration between criminal and immigration lawyer, or with the best and most experienced of lawyers possessing tremendous expertise in both immigration and criminal law, the facts the lawyer is handed and the prevailing law pertaining to the case, will often constrain the outcome. In other words, an alien who shoots a police officer in the presence of witnesses and whose murder weapon is recovered by the police, and who is confronted in court by the eye witnesses, will most likely be convicted, and will also most likely be deported without any immigration remedy. The lawyers' role is simply to advise the client as fully as possible and to seek the most favorable outcome possible for the client.
Aliens accused of crimes should not wait to be told to consult with an immigration litigation lawyer. And from this lawyers perspective most criminal lawyers now will either have to educate themselves completely on the complexities of immigration consequences of crimes or consult with experienced immigration lawyers in these matters.
Duane M. Hamilton
