Monday, May 9, 2011
Immigration Article of the Day: Immigration Consequences: A Primer for Texas Criminal Defense Attorneys In Light of Padilla v. Kentucky by Mario K. Castillo
Immigration Consequences: A Primer for Texas Criminal Defense Attorneys In Light of Padilla v. Kentucky by Mario K. Castillo Baylor Law Review, Forthcoming. Abstract: A noncitizen convicted of violating a Texas state criminal statute is subject to a variety of harsh immigration penalties including deportation from the United States. Multiple variables determine whether a state criminal offense will trigger immigration deportation proceedings. A parallel concern is the impact that a state criminal offense may have on one of the routine offenses prosecuted in federal courts: illegal re-entry in violation of 8 U.S.C. s. 1326. The Supreme Court has made it constitutionally impermissible for a criminal defense attorney to recommend the entry of a guilty plea in the absence of a basic, working knowledge of how that guilty plea will affect the noncitizen's immigration status. This Article begins by introducing the reader to a survey of typical deportation proceeding invoking offenses (“DPIOs”) established by federal law. Part II illustrates, via examples, how immigration law's adoption of well-known criminal law terms does not necessarily require analogous definitions across both contexts. Part III then provides a brief overview of federal criminal sentencing enhancement law, on which much of immigration law relies, and closes by providing the distinct character that immigration proceedings have from their antecedents in federal criminal sentencing. Part IV apprises the reader of select federal sentencing enhancements especially germane to noncitizens that unlawfully reenter the Nation after having been deported. Finally, an attached appendix charts in detail, offense by offense, the immigration and federal sentencing consequences for select Texas criminal statutes.