Inside Track: Go Beyond Padilla: Preventing Immigration Consequences for Noncitizen Clients:

State Bar of Wisconsin

Sign In

Top Link Bar

  • InsideTrackInsideTrack

News & Pubs Search

-
Format: MM/DD/YYYY
  • Go Beyond Padilla: Preventing Immigration Consequences for Noncitizen Clients

    Share This:

    Oct. 21, 2015 – “Crimmigration” is the intersection between criminal law and immigration law. Criminal convictions can have devastating consequences on noncitizen defendants and their families, even years after the fact.

    At the State Bar of Wisconsin PINNACLE seminar, Beyond Padilla v. Kentucky: The Immigration Consequences of Criminal Convictions, attorney Davorin J. Odrcic of Odrcic Law Group LLC in Milwaukee explained how crucial it is that criminal defense attorneys and immigration attorneys recognize the perils of certain guilty pleas and convictions for noncitizen clients. Seminar attendees also got to hear from a client of Odrcic who survived the legal quagmire we call crimmigration.

    In Padilla v. Kentucky, the U.S. Supreme Court held that criminal defense attorneys must advise noncitizen clients of the risk of potential deportation. But as Davorin Odrcic explained, this duty on the part of criminal defense counsel can be easily passed over or misunderstood.

    Servio’s Story: Why ‘Crimmigration’ Matters

    <iframe src="//www.youtube.com/embed/SWJSxA_rtq8?rel=0&autohide=1" width="325" height="250" frameborder="0" allowfullscreen></iframe>

    Brought to the U.S. as an infant, Servio found himself the subject of an immigration investigation and possible deportation as an adult for minor marijuana-related offenses committed years earlier as a teenager.

    Odrcic says, “Padilla broke new ground … If you haven’t read Padilla, read Padilla. There’s great language at the end where [the Court is] imploring defense attorneys … now that you’re required to do this, go the extra step and figure out creative plea deals to avoid deportation consequences.”

    Why go “beyond” Padilla? Odrcic says that Padilla represents the “bare minimum” that a criminal defense attorney can do to prevent serious adverse immigration consequences for noncitizen clients. He suggests that the bare minimum is not sufficient to meet the duty of loyalty to clients or to achieve effective client representation. This is because the immigration consequences of many types of criminal convictions are not necessarily clear or well-known to most attorneys.

    Criminal defense attorney Craig A. Mastantuono agreed with Odrcic’s assessment. Mastantuono said that due to myths and misconceptions about immigration consequences, there’s a “wide range of bad advice” that attorneys can give in crimmigration cases. And bad advice can result in deportation for noncitizen clients.

    Mastantuono said his firm, Mastantuono & Coffee S.C. in Milwaukee, handles cases “entirely differently” when it comes to noncitizen clients. He explained that with a citizen client, while the client might face jail or other negative consequences, often times he gets to tell his client that the case is going to be over at some point. Not true for noncitizen clients. But that’s where creative plea negotiations and deals can make a difference. Mastantuono said of these cases: “I can’t emphasize enough for a criminal defense lawyer … negotiation becomes everything, because the range of options is so reduced.”

    Seminar attendees had the unique opportunity to hear from Servio P., a man who was convicted at 17 of minor marijuana-related offenses. Many years later, ICE agents were pounding on the door of his home where he lived with his wife and infant son.

    Servio soon found himself in an immigration detention center, and was one day away from being deported to Mexico – a country he hadn’t lived in since he was less than one year old. Servio doesn’t speak Spanish and doesn’t know anyone in Mexico, and was terrified that he would endure a forced, permanent separation from his family in the United States.

    Odrcic represented Servio, and after jumping through the proper legal hoops, was eventually able to clear the path to Servio’s citizenship.

    How Can Defense Attorneys Avoid These Pitfalls?

    Talk to your client!

    • Determine alienage
    • Determine actual immigration status
    • Determine immigration and criminal history

    Investigate potential immigration consequences

    • Inadmissibility and deportability
    • Other possible immigration consequences

    Prepare effective and realistic plea negotiation strategy

    • What does the client want?
    • Are there misdemeanor or felony amendments that work?
    • Is jail time better than pleading to a deportable or inadmissible criminal conviction?

    Also of Interest

    Webcast Replays on Nov. 23 and 28 and Dec. 10 and 23

    Catch a State Bar of Wisconsin PINNACLE® webcast replay of “Beyond Padilla v. Kentucky: The Immigration Consequences of Criminal Convictions - Webcast Replay.” The seminar features Davorin Odrcic and covers the complexities of “crimmigration” issues, including a powerful interview with a client who found himself the subject of an immigration investigation and possible deportation.

    For In-depth Analysis

    Watch for Davorin Odrcic’s soon-to-be-released book published by State Bar of Wisconsin PINNACLE®, Immigration Consequences of Wisconsin Criminal Offenses.

    And check out Davorin Odrcic’s article, "Plea Bargaining for Noncitizen Clients: What Defense Attorneys Should Know," for practical advice for criminal defense lawyers who represent noncitizen clients in plea bargaining negotiations.




Server Name