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In recent years, Congress has greatly expanded the list of deportable crimes and the U.S. Department of Homeland Security has been given a broad mandate and additional resources to round up and deport immigrants with criminal records. Many defense attorneys, prosecutors, and judges are unaware or misinformed of the immigration consequences of criminal convictions and, if made aware of the consequences, may be inclined to craft pleas and sentences to avoid deportation for immigrants who may deserve a second chance.
A “Conviction” is What Counts
One of the most common misconceptions is that probation or a suspended sentence will not lead to deportation. Not so. All that is required for a conviction under immigration law is a formal judgment of guilt and imposition of a sentence. If the defendant took a plea or a sentence was held pending compliance with certain conditions, a conviction still occurred and that person is deportable. Another myth is that deferred judgments do not cause immigration consequences. However, all that is required for a conviction under immigration law is an admission of the elements of an offense and imposition of a sentence.
Probation counts as a sentence and, in many cases, the maximum sentence that could be imposed under Colorado law—not the actual sentence imposed—determines whether your client will be deported.
Juvenile offenses and vacated sentences are not considered to be deportable offenses, yet sentencing under the Colorado Youth Offender Act may trigger immigration consequences.
Crimes are classified under immigration law as either “aggravated felonies” or “crimes involving moral turpitude.” How a crime is classified determines whether your client is deported or is entitled to any relief.
Persons who are not U.S. citizens—even longtime lawful permanent residents—can be deported if convicted of an aggravated felony. Aggravated felonies are listed at 8 USC 1101(a)(43) and include many crimes that are not considered felonies under Colorado law. In fact, many misdemeanors are also aggravated felonies, depending on the length of the sentence imposed.
Crimes involving moral turpitude are not listed in the Immigration and Nationality Act but comprise conduct that is “inherently base, vile, or depraved, and contrary to accepted rules of morality.”
For example, theft, larceny, fraud, and other intent crimes are all crimes involving moral turpitude, while simple assault is not. If a crime involving moral turpitude is committed within five years of admission to the U.S. and a sentence of more than one year may be imposed, your client may be deported.
If your client is not deported, a criminal conviction may impede his or her ability to become a U.S. citizen. If deported, it may determine if and when your client is allowed to return. To naturalize, a lawful permanent resident must show good moral character for five years before applying for citizenship. A criminal conviction—no matter how minor—may prevent your client from voting and qualifying for certain federal and state programs, and eliminate his or her ability to sponsor family members to come to the U.S. Similarly, even the admission of criminal activity can render an alien inadmissible to the U.S. and a conviction can forestall a client’s ability to obtain a waiver to rejoin his or her family members. The stakes are high, both in terms of deportation and the long-term effects on your clients and their families.
Professional and Ethical Duties
The American Bar Association and the National Legal Aid & Defender Association urge defense counsel to determine and advise clients about collateral consequences in advance of the entry of any plea.
The Commentary to Standard 14-3.2(f) specifically mentions that a client’s greatest priority may be the immigration consequences of a conviction. While lacking the force of law, this guidance clearly signals to attorneys their ethical and professional duties to clients. Additionally, in what appears to be a growing trend, several states require attorneys to discuss immigration consequences with their clients before entry of a plea.
Failure to advise clients about immigration consequences could also be the basis for a malpractice claim if such advisals are a generally recognized and accepted practice. Colorado law does not yet require defense counsel to inquire about immigration status or advise clients regarding immigration consequences. As the list of aggravated felonies grows and the U.S. Department of Homeland Security devotes additional resources to deporting immigrants
with criminal convictions, it is likely that Colorado by statute, caselaw, or malpractice insurance carrier rules may require such inquiries and advisals.
The Aftermath of the Padilla v. Kentucky Case
PADILLA v. KENTUCKY CERTIORARI TO THE SUPREME COURT OF KENTUCKY
No. 08–651. Argued October 13, 2009—Decided March 31, 2010
Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces 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. He also alleged that he would have gone to trial had he not received this incorrect advice.
The Kentucky Supreme Court denied Padilla post conviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from er-roneous deportation advice because deportation is merely a “collateral” consequence of a conviction.
The Court Held:
Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not in the case.
(a) Changes to immigration law have dramatically raised the stakes of a non citizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences.
Because the drastic measure of deportation or removal is now virtually inevitablefor 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.