Thursday, February 23, 2017
Guest blogger: Marshal Arnwine, University of San Francisco Law Student:
Imagine that you are a zealous criminal defense attorney pursuing justice for all of your clients, but one day, you have a client whose citizenship status is unknown to you. Is it your duty to find out how your client’s citizenship may affect their case? What should this attorney do?
In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea. Before this case, far too often non-citizens who faced criminal charges were represented by attorneys who did not understand the immigration consequences of certain outcomes such as guilty and “no contest” pleas. A zealous criminal defense attorney may be offering good advice on how to reduce a criminal sentence, but that advice may lead to an unfavorable outcome for their client that is far worse than a longer sentence. These unfavorable outcomes sometimes lead to their client being removed from the United States.
Under United States immigration law, certain kinds of criminal convictions can lead to a non-citizen being deported. Some types of criminal offenses that can get non-citizens deported consist of the following: crimes of moral turpitude, aggravated felonies, controlled substances offenses, fire arms, and domestic violence to name a few.
For example, let’s imagine this hypothetical where it is important for a criminal defense attorney to understand immigration law. There is a non-citizen named Jane who came to the United States from Mexico with her parents when she was five years old and has lived as a lawful permanent resident immigrant ever since. Jane is now twenty years old and gets arrested for possessing cocaine. The prosecutor may charge Jane with drug possession for sale. Imagine that Jane’s criminal defense attorney does not inquire about Jane’s citizenship status. It is possible that Jane’s defense attorney will advise her to plead guilty instead to a simple possession of a controlled substance, which could make her eligible for a drug diversion program instead of jail time. Although the option she elected sounds like a great deal, a guilty plea for drug possession makes her deportable. What’s bad is that the defendant usually does not know that she just made herself deportable by accepting the plea until after the fact. Even worse, many criminal defense attorneys do not know until after the fact that they just made their client deportable. If Jane’s attorney would have understood the intersection of criminal and immigration law, the attorney would probably have advised her to fight the more serious charge or look for a safer alternate plea to avoid deportation.
I propose that there needs to be a full-time immigration specialist on staff at criminal defense attorneys offices, especially at public defender offices. This change has occurred in some smart public defender offices after the Padilla case. Considering the heavy case load that public defenders have, it would be well worth the investment to have someone who is an expert in immigration. The investment can help give non-citizens an opportunity to exercise the best options for their life. Often, non-citizens may prefer to stay in prison with a longer sentence than be forced to return to their home land where safety or economic strife may be a problem.
The reality in most public defender offices help me make my case. How much time and effort can criminal defense attorneys put into inquiring about the immigration status of their client if they have approximately 300 cases to review a day? Under those circumstances, how can criminal defense attorneys step up and do more to protect non-citizens? I believe the first step would be to hire a full-time immigration lawyer to team up with criminal defense attorneys.
Even if criminal defense attorneys decide to hire an immigration specialist, I still believe that it would be important for every criminal defense lawyers to develop some competency regarding how to minimize the immigration ramifications of their case. If criminal defense attorneys are up to speed with basic immigration law, it will allow the dialogue between the immigration specialist and the defense attorney to be more efficient. I believe the strong relationship between the defense attorney and immigration specialist will allow the client to receive the best possible help in accepting a plea bargain or another option that will avert deportation.
I believe that all people deserve the proper justice. Not one person can do everything, but everyone can do something in the pursuit of justice. Criminal defense attorneys and immigration specialists coming together will be a great step in the right direction.