Crimmigration: Navigating the Complex Intersection of Criminal and Immigration Law for Defense Attorneys

It is well-established that criminal and immigration law are inextricably intertwined.  The catchphrases “crim-imm” or “crimmigration” are used interchangeably to refer to this intersection.  As Maine welcomes more immigrants to our state, it is essential to protect noncitizen criminal defendants’ rights to be informed of the impact of criminal contacts on their immigration status.  So, what does that mean for criminal defense attorneys representing noncitizen clients? 

This blogpost will walk defenders through the unique duties defense attorneys have to their noncitizen clients, how to ensure that you are asking the right questions, and where to go for guidance and counsel sufficient to protect your noncitizen clients’ constitutional rights.

Foundational Case:  Padilla v. Kentucky

The U.S. Supreme Court recognizes that immigration consequences of criminal convictions are not “collateral” but often the primary consideration for noncitizen defendants.[1]  Jose Padilla had been a lawful permanent resident for over 40 years when the U.S. government sought to deport him after he pled guilty to a drug distribution charge in Kentucky.  His defense counsel incorrectly advised that he should not worry about deportation because of his long residence in the United States.  The question for the Court was whether this advice prejudiced Padilla. 

The Kentucky Supreme Court previously held that the 6^th Amendment effective assistance of counsel guarantee did not protect defendants from erroneous immigration advice because it was a “collateral consequence.”  SCOTUS reversed, finding that noncitizen defendants have a 6^th Amendment right to be fully advised of the immigration consequences of a guilty plea.  In other words, Strickland v. Washington [2] fully applies to counsel’s advice about whether a criminal plea carries immigration consequences.[3]  SCOTUS placed the burden of providing this advice on criminal defense attorneys, finding them the best positioned to assume the obligation.[4]  SCOTUS also declined to limit Strickland only to affirmative misadvice about immigration consequences, holding that “counsel must inform her client whether his plea carries a risk of deportation.” [5]   

Continuing the Narrative:  Jae Lee v. United States

When SCOTUS returned to the two prongs of Strickland in Jae Lee v. United States[6] seven years later, the Court considered what is necessary to show prejudice under Strickland’s second prong.  It held that even if there is no viable defense to pursue, noncitizen defendants are still entitled to sufficiently fulsome information to decide whether to accept a plea or “throw a Hail Mary pass” at trial.[7] 

Jae Lee came to the United States as a minor and had lived in the U.S. for 35 years as a lawful permanent resident, never returning to his native South Korea, when the U.S. government sought to deport him after he pled guilty to possession of ecstasy with intent to distribute.  Lee’s counsel incorrectly advised him that the plea would not result in his deportation, when in fact the plea meant he would be mandatorily deported.  Lee asserted that he never would have accepted the plea if he had known it led to mandatory deportation and instead would have gone to trial. 

The U.S. government argued that Lee could not show prejudice based on accepting a plea where he faced additional prison time by going to trial and where his only hope at trial was that something unexpected and unpredictable might occur that would lead to acquittal.  SCOTUS reversed the lower court, finding that Lee did show prejudice where but for his attorney’s incompetence, he would have known that accepting the plea agreement would certainly lead to deportation and going to trial would almost certainly lead to deportation.[8]  The Court recognizes that noncitizen defendants have the right – and are entitled to sufficient information from their counsel – to make nuanced strategy decisions based on individual risk tolerance and their personal priorities. 

Legal Community Standards

Given these decisions from the highest court, the question criminal defense attorneys face when representing a noncitizen defendant is what is required of me to safeguard my client’s 6^th Amendment rights?  Though Padilla and Jae Lee are starting points, reference must also be made to the “practice and expectations of the legal community.”[9]  SCOTUS found in Padilla that “[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.”[10]  In its 2010 opinion, the Court cited a long list of authorities including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications which established that defense attorneys are required to advise as to the risk of deportation consequences for noncitizen clients.[11] 

Today, that expectation is even clearer.  It is the best practice to determine and explain to clients the immigration consequences of any course of action and, where appropriate, use the fact of these consequences to negotiate better plea deals.  Zealous defenders must prioritize assisting noncitizen clients to navigate the incredibly high stakes of the intersection of criminal and immigration law because their clients may be facing permanent banishment from the United States. 

There are three main things that criminal defense attorneys must do to safeguard their clients’ rights under the 6^th Amendment.  First, they must know which questions to ask EVERY defendant at the inception of representation.  Second, they must understand what past and present criminal history information is necessary to analyze the immigration consequences of the present case.  Third, they must know who to consult. 

Questions to Ask EVERY DEFENDANT and Why They are Important

It is the best practice for criminal defense attorneys to cultivate the mindset that every defendant may be a noncitizen.  Operating from this starting point, you will better ensure that you correctly identify clients for whom a crim-imm analysis is needed. 

1. Where were you born?

Many noncitizens may not be aware that they are noncitizens.  This is especially true if they have grown up in the United States fom a very young age or may not have access to family immigration history.  More easily perceived characteristics such as English language fluency, appearance, and accent or lack thereof are not helpful.  It’s necessary to go back to the very basics — where the person was born.  If the answer is anywhere other than the United States, you know that some level of analysis is required.

2. From which countries do you hold a passport?

This is another key piece of basic information that can guide analysis of immigration consequences.  Noncitizens may have been born in one country but be citizens of another country.  These details can help to discern a client’s immigration status, which is the starting point for your analysis. 

3. What is your current immigration status?

Ask, and verify.  Many noncitizens are unaware of their exact immigration status or may believe that it’s something different from what official U.S. government documents show.  It is best to look at documents to verify what status someone holds. 

• If someone says they are a lawful permanent resident (LPR) or a “green card holder,” ask to see the card or document they refer to.  You can consult a list or commonly used immigration documents with photos here. 
• Be aware that it is confusing to distinguish between the various immigration statuses noncitizens may hold.  Having an Employment Authorization Document (EAD) does NOT indicate having a certain immigration status.  However, all EADs contain a category code that can help to figure out the client’s situation.  Here is a list of codes and what they mean.

4. When did you enter the U.S.?

Immigration law has changed significantly over time and continues to do so.  The date of entry to the United States can affect which iteration of the law applies (e.g., derivation of citizenship), applicability of time-limited grounds of removability, and/or eligibility for forms of relief.  

5. What was your status when you entered the U.S.?

Ask, and verify.  This is key information to assess removal risk exposure and possibility of relief from removal. 

6. Do you have an A number?  What is it?

An A number identifies noncitizens throughout the immigration system, including within the Department of Homeland Security (DHS) and in immigration court proceedings and appeals under the Executive Office of Immigration Review (EOIR).  With the A number, you can access information online about pending immigration removal proceedings or past, unexecuted orders of removal. 

7. Do you have any USC or Lawful Permanent Resident (LPR) family members?

In certain circumstances, if a parent has naturalized, your client may be a U.S. citizen by operation of law and not know it.  If so, they may be facing the criminal legal system as a United States citizen, not a noncitizen.  Furthermore, family-based immigration may be a form of relief available to noncitizens and knowing if another family member is an LPR could offer options.  There may also be previous petitions made by family members where your client is a beneficiary, and this may offer other potential benefits. 

8. Do you have a pending application with immigration?

Any criminal legal system involvement will impact a pending immigration application, so it is crucial to be aware of whether any petition or application is currently pending. 

9. Have you made an application in the past and been denied?

The answer to this question can direct research into a client’s past immigration history and provide useful data about how the DHS sees your client’s immigration situation. 

10. Do you have a case in immigration court?

When your client is in active removal proceedings, the situation requires both substantive and procedural coordination of the two proceedings.  You can find out if there’s an active removal  case online if you have your client’s A number.

11. Have you ever had a case before an Immigration Judge?

It’s useful to know if someone has interacted with the immigration court before.  Some forms of relief from deportation are only available once so it’s important to know if it has already been granted.  It is also possible that your client already has an order of removal that they are unaware of.  This is very common if a noncitizen in removal proceedings does not receive notice of a hearing.  If the noncitizen doesn’t appear in immigration court, they may be ordered removed in absentia. 

12. Do you have an immigration attorney?

Criminal and immigration counsel must coordinate closely to ensure quality representation for their client.  Reaching out to the immigration attorney as soon as possible can help both representatives to be on the same page and avoid working against one another. 

Criminal History Information Needed for Immigration Consequences Analysis and Why it is Important.

A noncitizen defendant’s entire criminal history is needed to correctly analyze the present potential immigration consequences.  It is the best practice to use immigration consequences information to educate your client AND negotiate with the prosecutor for an immigration-safe or mitigated disposition where possible. 

1. Current Charges with statute sections and subsections.

Crimmigration analysis is highly technical and depends on comparing the details and text of state criminal statutes with federal analogs.  The exact charges and subsections of the criminal charges are necessary to analyze immigration consequences. 

2. Past criminal contacts IN ANY JURISDICTION nationwide.

Again, the details and text of the statutes of conviction, in any jurisdiction nationwide at any time, are necessary for a complete analysis of the noncitizen’s exposure today.  A full rap sheet or FBI fingerprint report is the most helpful.  Individuals can request an FBI Identity History summary for informational purposes at any time.  The link above provides instructions for online or mail requests.

3. Is there any pending offer from the prosecution?

Part of the crimmigration analysis is to suggest outcomes that would NOT negatively affect or would minimize impact to the noncitizen’s immigration status or chances of acquiring status in the future.  Details of a current pending offer signal the prosecutor’s approach to the case and willingness to pursue alternative arrangements, such as diversion. 

Who to Consult?

Criminal defense attorneys are NOT required to learn immigration law sufficiently well to perform the crim-imm analysis on their own.  They are required to consult with someone who can perform this analysis so they can properly inform their noncitizen client of the consequences of plea offers and/or going to trial. 

Defense attorneys need to consult with immigration counsel who has specific expertise in the intersection of criminal and immigration law.  Not all immigration lawyers have this knowledge, and it is crucial to performing the proper analysis for noncitizen criminal defendants. 

If you are representing a defendant assigned to you by the Maine Commission on Public Defense Services, you may currently access free immigration advice, training and other resources from Attorney Barbara Taylor.  If you are representing a defendant assigned to you through the federal Criminal Justice Act (CJA) panel, you have resources available through the National Immigrant Justice Center Defenders Initiative. 

If you are private criminal defense counsel for a noncitizen, you need to find a private immigration attorney with crimmigration expertise.  If you would like a consultation at FordMurray, please click the button below and provide as much information as possible.