Oct. 21, 2015 – By now, most criminal defense attorneys know they have a Sixth Amendment duty, under Padilla v. Kentucky,1 to advise noncitizen clients of potential deportation resulting from a plea or conviction. However, Padilla represents the bare minimum of what a defense attorney must do when representing a noncitizen client.
If a defense attorney correctly warns a noncitizen client on the immigration consequences of a plea or conviction, then Padilla is satisfied. But what if the client wants the defense attorney to seek a plea deal that will avoid deportation after learning of the immigration consequences?
This article provides practical advice to assist defense attorneys in seeking solutions for noncitizen clients during the plea negotiation process.
Plea Bargaining and Ineffective Assistance of Counsel
Padilla does not mandate that defense attorneys plea bargain effectively on behalf of noncitizens, but it strongly encourages defense attorneys to take that next logical step.
The Padilla Court stated in dicta that defense attorneys “who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation.”2
The Court also noted that the interests of both parties, the state and noncitizen defendants, are better served in the plea bargaining process when there’s informed consideration of possible deportation. And because a high percentage of criminal cases are resolved through plea bargaining, subsequent rulings have emphasized the importance of effective plea bargaining and the right to effective assistance of counsel.3
Plea Negotiations for Noncitizens are Different
This article cannot delve into all of the nuances of immigration law. However, defense counsel should appreciate that plea negotiations for noncitizens are qualitatively different than for U.S. citizens.
For example, while the distinction between a misdemeanor and a felony is very important in criminal law, there are numerous misdemeanor offenses in Wisconsin that can result in deportation, including misdemeanors involving drugs, firearms, domestic violence, as well as a whole host of misdemeanors that are considered “crimes involving moral turpitude.” In fact, there can be circumstances where a misdemeanor will actually trigger deportation, whereas a felony will not render a noncitizen deportable.
Similarly, jail time is not dispositive. While avoiding jail time is most commonly the number one objective for criminal defendants, it is more complex for noncitizens. A misdemeanor or felony conviction with probation or a fine only can still result in deportation. The reason is that most grounds of deportability do not require any sentence or jail time to be triggered. This often means that in many cases defense attorneys cannot simply avoid jail time for noncitizen clients or plead to any misdemeanor in order to stop deportation. Rather, defense attorneys need to find the right misdemeanor or felony amendment in order to assist their noncitizen clients.
Why I Wrote the Book on “Crimmigration”
Immigration law is actually my second career in the law. I switched from commercial litigation to immigration in 2006 and wrongly assumed that my previous experience would easily transfer. I was wrong. I quickly found myself lost in a sea of confusing acronyms and statutes and regulations that on their face made little sense to me.
I had an interest in immigration due to my own personal family background, as well as asylum work I did as a law student at my school’s legal clinic. I had very little interest in criminal law, and I did not expect that I would represent clients with conviction records.
I learned, however, that immigration and criminal law are closely intertwined with even lawful permanent residents facing deportation due to a guilty plea regardless of the hardship, their length of time in the U.S., family ties, genuine rehabilitation, and other equitable factors. I was shocked to discover that an immigrant, even including people who spent nearly their entire life here, could be removed from the U.S. for an old criminal conviction.
I have had clients with Wisconsin convictions from the 1970s who were not placed into removal proceedings until nearly forty years later. There is no statute of limitations in immigration court. The harsh nature of immigration law became even more evident when I had my first client in removal proceedings who was subject to deportation for only a misdemeanor offense that did not even carry a jail term.
This body of law is called “crimmigration,” which is even more perplexing than general immigration law. For example, there are grounds of deportation for convictions that are considered ‘crimes involving moral turpitude.’ The courts have often struggled with this term, calling moral turpitude a “nebulous concept”6 that is “notoriously baffling.”7 In addition, an aggravated felony conviction, which will foreclose discretionary relief in immigration court, contains 27 different definitions under immigration law.8
My recently released book published by State Bar of Wisconsin PINNACLE, aptly titled Immigration Consequences of Wisconsin Criminal Offenses, is the toolbox for defense attorneys to not only meet their minimum duties under Padilla, but to negotiate plea agreements that can avoid or minimize future immigration consequences. Crimmigration does not have to be scary or overwhelmingly confusing. This book provides clarity for defense attorneys.
It is very rewarding to work out a plea deal that will assist a noncitizen client to avoid deportation. In many cases, they stand to lose everything from deportation, even if convicted of certain misdemeanors. The U.S. Supreme Court observed more than 90 years ago that deportation involves “loss of both property and life, or of all that makes life worth living.”9 This is still true today. A noncitizen might not be able to avoid the deportation consequences of a conviction in every case, but my book will assist defense attorneys in pursuing that goal.
– Davorin J. Odrcic
When plea bargaining for a noncitizen client, defense attorneys should anticipate initial resistance, with a prosecutor asking why he or she should treat your noncitizen client differently than a U.S. citizen.
Defense attorneys should be sensitive to a prosecutor’s concern about appearing to give preferential treatment to certain classes of individuals. A prosecutor will be more willing to agree to a deal if he or she feels that it is fair and balanced compared to a similarly situated U.S. citizen. There are several ways to achieve balance.
For example, a defense attorney can recommend a higher fine or costs than usually paid by U.S. citizens. In certain instances, defense attorneys can propose more jail time in exchange for an amendment that will avoid deportation. In other cases, additional misdemeanors can be included in the plea deal as long as they are not inadmissible or deportable offenses.
Outlining the Equities
During plea negotiations, defense attorneys should not shy away from explaining what is at stake for the noncitizen defendant. In cases involving longtime lawful permanent residents or individuals with family in the U.S., everything dear to that client may be on the line. Defense counsel should consider outlining the following equities when proposing an immigration-safe plea:
The length of time the noncitizen has lived in the U.S.;
The family members living with the noncitizen, especially U.S. citizen children;
The noncitizen’s work history, including how much the client is currently making versus what the client could expect to earn in his or her home country;
The amount of money the noncitizen client has invested in Social Security, which would be lost if removed because of a deportable offense;
The relief that would be available in removal proceedings that the client would be barred from pursuing if convicted of the charge;
Conditions in the home country, including whether the noncitizen has a fear of persecution; and
Any special factors in the client’s case that would make the prosecutor empathetic.
Using Fear of Deportation to the Client’s Advantage
Fear of deportation is a powerful incentive. A prosecutor may be more likely to agree to a deal with knowledge that the client is petrified of deportation because of a criminal conviction. A deal can be structured in a way to trigger an immigration consequence if the client is convicted of another offense or violates probation. A prosecutor who is satisfied that a noncitizen client is less likely to be a recidivist offender due to fear of deportation might agree to an immigration-safe plea deal.
Be Careful of Deferred Prosecution Agreements
Immigration law contains its own definition of a “conviction,” which is purposely broad enough to include a deferred prosecution agreement (DPA) where the noncitizen defendant enters a plea of guilty or no contest, or formal admission of facts sufficient for a finding of guilty, and the judge withholds further adjudication, but instead orders some “restraint on liberty,” such as fulfilling the conditions of the DPA.4
It remains a conviction under immigration law even if the court dismisses the action upon successful completion of the DPA. Unfortunately, this means that the DPAs that are common in Wisconsin drug courts will trigger an adverse immigration consequence even if the case is dismissed.
Go Beyond Padilla
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Criminal convictions can have devastating consequences on noncitizen defendants and their families, even years after the fact. Attorney Davorin Odrcic explains why it's crucial that criminal defense attorneys and immigration attorneys recognize the perils of certain guilty pleas and convictions for noncitizen clients. Read more.
In contrast, a DPA that holds open the case without a plea of guilty or no contest, or admission of facts, until the noncitizen defendant fulfills certain conditions is not a “conviction” for immigration purposes.
In most cases, a plea to a deportable offense will not even require a particular sentence to be triggered. However, in certain cases, an immigration consequence might be avoided by the length of the sentence. It is important for a defense attorney to distinguish between these two classes of immigration consequences when trying to navigate a solution for the client. For example, a number of offenses will only be considered an aggravated felony if the sentence is at least one year or longer.5 An aggravated felony conviction could foreclose discretionary relief in immigration court. For certain offenses, a sentence of 364 days or less could make all the difference.
Defense attorneys should not view their duty under Padilla as a burden. Rather, it should be viewed as an invitation to pursue a plea-negotiation strategy centered on avoiding a noncitizen’s deportation.
1 559 U.S. 356 (2010).
2 Id. at 373 (emphasis added).
3 See Lafler v. Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399 (2012).
4 8 U.S.C. § 1101(a)(48)(A).
5 8 U.S.C. § 1101(a)(43)(F), (G), (R), and (S).
6 In re Lopez-Meza, 22 I. &. N. Dec. 1188, 1191 (BIA 1999).
7 Garcia-Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir. 2008).
8 8 U.S.C. § 1101(a)(43).
9 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).