Features

Banishment from the kingdom: Criminal pleas, convictions, and immigration

September 2023

by Abril Valdes Siewert and Mani Khavajian | Michigan Bar Journal

In its 2010 decision in Padilla v. Kentucky, the U.S. Supreme Court acknowledged both the severity of the immigration consequences of criminal convictions and the importance of ensuring that defendants are informed of those consequences before entering pleas.¹ The Supreme Court held that immigration penalties are so intimately tied to the criminal court process that defendants have a constitutional right to competent advice from their defense attorneys regarding the specific risk of deportation triggered by pleas and convictions.

The failure to properly advise non-U.S. citizen clients of immigration consequences may constitute ineffective assistance of counsel.² As a result, criminal defense practitioners must either develop a sufficient understanding of the immigration consequences of criminal convictions to properly advise their clients or consult with an immigration law practitioner who can analyze and advise on the potential consequences.

WHAT IS CRIMMIGRATION?

U.S. immigration laws have grown more complex and intertwined with criminal statutes over the past decades, especially since the 1996 immigration reforms.³ This merger has given rise to what many have labelled “crimmigration.”⁴

For non-U.S. citizens, criminal convictions for certain crimes (or, in some situations, simply admitting to specific conduct without even being charged) can result in removal proceedings, mandatory detention during those proceedings, limitations on otherwise available immigration relief,⁵ and a lifetime ban on returning to the United States.⁶ Generally, the facts regarding what actually occurred are irrelevant. Instead, the immigration analysis focuses on the text of the statute underlying the conviction or charge — this type of analysis is referred to as the categorical approach.⁷ These laws affect all noncitizens including lawful permanent residents (i.e., green card holders), asylees and refugees, people on temporary visas, and people without current status.

WHAT IS A CONVICTION FOR IMMIGRATION PURPOSES?

The Immigration and Nationality Act (INA) broadly defines a criminal conviction at 8 USC 1101(a)(48)(A) requiring a “formal judgment of guilt” whether by judge, jury, or plea (including nolo contendere⁸) plus some punishment, penalty, or “restraint on liberty.” As a result, pleas taken under advisement when the defendant has to plead guilty or no contest or is found guilty by the court and the court imposes some form of punishment remain convictions under U.S. immigration law and are not feasible options for non-U.S. citizens.

As the INA broadly defines convictions, the following likely are considered convictions for immigration purposes in Michigan: deferrals under the Holmes Youthful Trainee Act⁹ or domestic violence deferrals under MCL 769.4a, deferral to drug court for possession or use of controlled substances, or expungement under MCL 333.7411. However, juvenile delinquency offenses are not considered convictions for immigration purposes.¹⁰

CONSTITUTIONAL OBLIGATIONS IN LIGHT OF PADILLA

Since Padilla was published, criminal courts across Michigan have provided overly broad, nonspecific, boilerplate immigration warnings to defendants in hopes of upholding the ruling in Padilla. However, boilerplate immigration warnings provided by the court do not satisfy the safeguards announced by the U.S. Supreme Court in Padilla. This is because Padilla places the duty to warn about the risk of deportation on the criminal defense attorney and not on the court. Although constitutional warnings provided by the court can satisfy due process requirements, they cannot cure constitutional violations based on ineffective assistance of counsel.

Padilla requires criminal defense attorneys to give specific and accurate advice about the risk of deportation. It states:

[I]nformed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. ... Counsel who possess[es] 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, as by avoiding a conviction for an offense that automatically triggers the removal consequence.¹¹

To uphold Padilla, criminal courts must require defense attorneys to provide accurate and client-specific advice about the potential risk of deportation to their non-U.S. citizen clients. Courts can also help by informing defense counsel of their duty under Padilla at the onset of criminal proceedings and notifying them of available resources relating to immigration consequences of criminal activity. In addition, courts can utilize a court-appointed immigration attorney or provide financial assistance to obtain an expert to provide advice about the risk of deportation and require that defense counsel provide a letter to their client detailing the specific immigration consequences prior to any plea being entered. These simple measures will ensure that criminal defense attorneys will be diligent in obtaining immigration consequences of a plea and provide accurate and specific advice about the risk of deportation to their clients.

ANALYZING IMMIGRATION CONSEQUENCES IN CRIMINAL PROCEEDINGS

Inquire about U.S. citizenship

To properly advise a noncitizen regarding a criminal plea or conviction, a criminal defense attorney must first inquire on their client’s citizenship status. Many attorneys racially profile a light-skinned client or a fluent English speaker by wrongly assuming they are United States citizens based solely on those characteristics. If you determine your client is not a U.S. citizen, you must obtain your client’s complete immigration and criminal history in every jurisdiction to properly analyze crimmigration consequences.

Is your client deportable or inadmissible?¹²

When analyzing whether a client is subject to grounds of inadmissibility and deportability, a criminal defense attorney must analyze the conviction to determine “the proper classification of the crime.”¹³ Making this classification is not an easy task, however, it is a significant part of a non-U.S. citizen’s defense.¹⁴ “Aggravated felonies”¹⁵ and crimes involving moral turpitude¹⁶ are the major categories of crimes in immigration law. To understand and advise a client on immigration consequences, the attorney must first categorize the crime charged and identify the possible adverse consequences, potential forms of relief, and possible solutions for the defendant.

An undocumented client does not eliminate your obligations under Padilla. Although this may seem counterintuitive, one might assume that if an individual is already removable for past crimes or lack of lawful status, the immigration consequences of a pending charge are irrelevant to the individual’s immigration case. However, whether a defendant is already removable does not mean that a defendant will suffer no harm from the failure to receive such advice. Because admissions of guilt or convictions may bear on an individual’s eligibility for lawful status or relief from removal, an attorney’s failure to advise a client about potential immigration consequences can prejudice a defendant regardless of their legal status or past criminal record.¹⁷ A person who is removable may nonetheless be able to receive a new green card if he or she is not inadmissible due to a criminal conviction.¹⁸ Counsel should therefore try to avoid inadmissibility in this situation.

What are your client’s goals related to their immigration status?

Analyze the potential effects of pending charges on immigration status. Make sure to think about the specific threats of inadmissibility and deportability (e.g., mandatory detention and inability to travel) as well as denial of future benefits like becoming a U.S. citizen and obtaining other noncitizen status (e.g., visas).

Some questions an attorney should consider are: Does your client want to become a U.S. citizen or are they in process of doing so? Does the client care more about immigration consequences or avoiding jail time? Does your client have future travel plans that will trigger inadmissibility upon return?

What’s the best plea/conviction for your client?

Consider all options available in your jurisdiction. For example:

Can the case be resolved by reducing the charge to a civil infraction to avoid a conviction altogether?
Can the charge be reduced to an offense that does not trigger deportation or inadmissibility?
Can the defendant negotiate a sentence that would avoid deportation or preserve certain defenses against deportation (e.g., a sentence of less than one year on a theft offense or crime of violence or consecutive sentences of less than one year on multiple such offenses)?
Are there multiple charges, only some of which would trigger deportation? If so, can a disposition be negotiated in which convictions and/or sentences of one year or more are only received on offenses that do not trigger deportation for such convictions and/or sentences?

CONCLUSION

Precise immigration consequences that may ensue from a given plea, admission of guilt, or conviction vary widely depending on the particular facts and circumstances of a defendant’s case, his or her current immigration status, and past record. Criminal defense attorneys should strive to ensure that any advisal they provide is accurate. The authors urge criminal defense attorneys to reach out to an immigration practitioner or contact the State Bar of Michigan Immigration Section for further assistance when representing a non- U.S. citizen criminal defendant.¹⁹

ENDNOTES

1. Padilla v Kentucky, 559 US 356; 130 S Ct 1473; 176 L Ed 2d 284 (2010). In this case, Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to drug-distribution charges in Kentucky. In postconviction proceedings, he claimed that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. Padilla alleged that he would have gone to trial had he not received this incorrect advice. The Court held: “Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Id. at 356, 364. Therefore, the Sixth Amendment requires defense counsel to provide affirmative, competent advice to noncitizen defendants regarding the risk of deportation triggered by a guilty plea and that absence of such advice is a basis for claim of ineffective assistance of counsel.

2. Id. at 374.

3. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 USC 1101 et seq.

4. Professor Juliet Stumpf has been credited with coining the term “crimmigration system,” which has been used subsequently by other scholars, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am U L Rev 367, 376 (2006). See also Moore, Criminal Deportation, Post-Conviction Relief and the Lost Cause of Uniformity, 22 Geo Immigr L J 665, 667 (2008).

5. Procedures for Asylum and Bars to Asylum Eligibility, 85 Fed Reg 67202 (October 21, 2020) (regulations that bar asylum for noncitizens with a wide range of convictions, including any felony and certain alcohol-related driving offenses).

6. E.g., 8 USC 1227(a)(2) (criminal grounds of deportation), 8 USC 1182 (criminal and related grounds of inadmissibility), 8 USC 1226(c) (criminal grounds for mandatory detention), and 8 USC 1101(f) (defining “good moral character,” which is an eligibility requirement for naturalization, as an individual who has not been convicted of an aggravated felony or a crime resulting in incarceration of 180 days or more).

7. Taylor v United States, 495 US 575; 110 S Ct 2143 (1990) and Descamps v United States, 570 US 254; 133 S Ct 2276; 186 L Ed 2d 438 (2013).

8. Molina v INS, 981 F2d 14, 16, 18 (CA 1, 1992) (finding that a “‘nolo plea plus probation’” under Rhode Island law amounts to a “‘conviction’”).

9. Uritsky v Gonzales, 399 F3d 728 (CA 6, 2005).

10. In re Devison-Charles, 22 I&N Dec 1362 (BIA 2000).

11. Padilla, 559 US at 373.

12. 8 USC 1182(a)(9). A noncitizen may be subject to an order of removal due to either grounds of inadmissibility or grounds of deportability. Proceedings in immigration court to remove a noncitizen from the United States are referred to as removal proceedings. A noncitizen who is removed by virtue of a criminal conviction will also be excluded from admission to the United States for at least five years, and for life in the case of a noncitizen convicted of a so-called “aggravated felony.”

13. Kramer, Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants, American Immigration Lawyers Ass’n (2003), p 75.

14. Id.

15. An aggravated felony is an immigration term of art referring to certain types of crimes listed in 8 USC 1101(a)(43)(A) – (U). These offenses can be state law felonies or misdemeanors. Noncitizens convicted of aggravated felonies are deportable and are subject to mandatory detention during removal proceedings. In addition, they are ineligible for almost all forms of deportation relief (unless they fit within a very narrow exception, as an asylee or refugee who never applied for a green card). Furthermore, noncitizens deported as aggravated felons are inadmissible to the U.S. for life (though they can seek a waiver after being outside the United States for 20 consecutive years).

16. 8 USC 1182(a)(2)(A)(i) states in pertinent part that any alien is inadmissible to the United States who has been “convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime[.]” Note that a conviction is not required under this section of the statute. A voluntary and knowing admission to the essential elements of a crime involving moral turpitude alone may well suffice to render a person inadmissible to the United States.

17. Immigration Consequences of Criminal Activity.

18. Id.

19. For a further exploration of Michigan offenses and their attendant immigration consequences, please visit the ACLU of Michigan website and view Immigration Consequences of Criminal Convictions, in Michigan: Report and Video Training (March 3, 2020) <https://www.aclumich.org/en/ publications/immigration-consequences-criminal-convictions-michigan-reportand-video-training> [https://perma.cc/M4FX-9CPW]. This gives you access to a 90-minute training and 41-page report that contains substantial immigration consequence details about dozens of Michigan offenses. See also Fair and Appropriate Policies and Practices for Noncitizen Defendants and Victims: A Guide for Prosecutors, Michigan Immigrant Rights Center (December 2020), available at <https://michiganimmigrant.org/sites/default/files/mirc-guide-for-prosecutors-2021.pdf> [https://perma.cc/23MA-H3PJ]. Both websites were accessed July 26, 2023.

Abril Valdes Siewert is co-founder of the SBM Immigration Law section and an attorney specializing in immigration law and “crimmigration” with a focus on family-based matters and appeals. She is owner and principal attorney of Valdes Law in Huntington Woods.

Mani Khavajian of KI Law in Troy practices in the areas of criminal defense and immigration law. He regularly represents noncitizens at the Executive Office for Immigration Review in Detroit Immigration Court and at criminal courts across the state.