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Preventative Lawyering: How Defense Counsel Can Defend Immigrants' Rights

by Lory Diana Rosenberg

Based on the view that defense counsel can — and must — make a difference in cases having immigration consequences, the Defending Immigrants Partnership was launched October 1, 2002 as a joint initiative of the National Legal Aid and Defender Association, the Immigrant Legal Resource Center, the Immigrant Defense Project of the New York State Defenders Association, and the National Immigration Project of the National Lawyers Guild. In the article that follows, Director Lory Diana Rosenberg, who joined the NLADA staff to lead the Partnership, discusses analyzing offenses with an eye to immigration consequences.

Immigrants and refugees often face an additional penalty once they engage in criminal activity or are convicted of a crime in the United States: permanent exile. Over the past decade, the type and number of criminal offenses that trigger such immigration consequences have increased exponentially. At the same time, since 1996, administrative discretion to waive these consequences, and federal court jurisdiction to review administrative action enforcing the immigration laws, has been restricted dramatically. World events since September 11, 2001 have only heightened the emphasis on immigration enforcement relating to criminal activity of all kinds.

Immigration consequences are frequently misunderstood. On the one hand, immigrant defendants and defense counsel are often shocked by the harsh and unexpected immigration consequences of criminal convictions, particularly for crimes defined as "aggravated felony" offenses. On the other hand, it is not uncommon for defense counsel who are aware of the immigration laws related to crime to believe that nothing can be done to avoid immigration consequences. Yet, alternative pleas and sentences may be available to resolve certain criminal charges, and competent representation can mean the difference between deportation or removal and the chance to obtain refugee protection, to immigrate, or to continue working and living with one's family in the United States.

It is imperative that criminal defense counsel understand the fundamental laws governing the immigration consequences of convictions. Armed with these basics, and a methodology to assess specific criminal charges in relation to individual immigration violations, an informed and creative defender can go for the most immigrant-advantageous outcome for his or her client.

Competent defense counsel
The advent of the Supreme Court's decision in INS v. St. Cyr[1] placed the issue of competent criminal defense in relation to immigration consequences center stage. In St. Cyr, the Court agreed that in the absence of express language in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 depriving all removable non-citizens of an opportunity to apply for a waiver under 212(c),[2] the statute "imposes an impermissible retroactive effect on aliens who, in reliance on the possibility of 212(c) relief, pled guilty to aggravated felonies."[3]

Addressing the settled expectations of non-citizens who pled guilty to criminal offenses prior to the change in the law, the Supreme Court acknowledged that these defendants could be expected to be "acutely aware of the immigration consequences of their convictions."[4] Equally as important, citing the amicus brief submitted by NACDL, the Court noted that "[e]ven if the defendant were not initially aware of 212(c), competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision's importance."[5]

Indeed, the Court referred to a leading treatise, which instructs that "[p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence."[6] Such statements reflect the Court's view that competent defense counsel would be aware of subsequent immigration consequences, as discussed in various manuals and treatises, and would advise the defendant accordingly.

Fundamental immigration consequences and alternatives
After St. Cyr, it cannot be denied that criminal and immigration consequences are linked, not only in law, but in practice. Defense counsel are expected to have at least some familiarity with immigration law as it relates to advising criminal defendants about relief from removal influencing a defendant's assertion of the right to trial. Optimally, criminal defendants will be informed by consideration of all applicable immigration consequences.

It is critical that defense counsel understand that for immigration purposes, a "conviction" exists even if adjudication of guilt has been deferred, so long as the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty.[7] Given this definition, certain community court arrangements in which a defendant must enter a plea of guilty or admit to sufficient facts, might be disadvantageous, even if the plea is later vacated. In contrast, adjudication under a pre-plea diversion scheme in which no plea is entered, but some form of pre-trial probation or community service is ordered, might avoid collateral immigration consequences.

It is equally critical that defense counsel understand certain distinctions in sentencing that later may impact both removability and relief from removal. In particular, a suspended sentence of incarceration or confinement is nonetheless considered a sentence to imprisonment under the immigration laws.[8] It will "count" whenever immigration consequences are applied to the length of a sentence that is imposed. For example, a sentence to imprisonment of a least one year following a conviction for a burglary or theft offense,[9] or a "crime of violence" (as defined in 18 U.S.C. 16),[10] renders any of those crimes an aggravated felony offense for which no relief from removal is available, even if the defendant never serves any time in jail, and even if the crime is a misdemeanor and one year is the maximum penalty.

Although a sentence of 364 days for the same conviction would not necessarily preclude subsequent charges of deportability on another ground, a long-time lawful resident who is sentenced to less than one year may not be disqualified from seeking cancellation of removal on the basis he has been convicted of an aggravated felony offense.[11] Defense counsel's understanding of the immigration laws and persuasive lawyering could give his or her client the opportunity to present to an immigration judge compelling individual circumstances of rehabilitation, family and employment ties, and the individual, political, religious or social hardships associated with removal.

In another example, one or more offenses for simple driving under the influence, which may not be deemed to be a either a crime involving moral turpitude or a "crime of violence" under the immigration laws,[12] still may result in immigration consequences if the defendant is confined to a penal institution for an aggregate period of 180 days or more.[13]Such actual confinement could seriously compromise an inadmissible or deportable non-citizen's eligibility for cancellation of removal, including the eligibility of an abused spouse or child to qualify for special cancellation of removal under the Violence Against Women's Act.[14] Defense counsel's ability to craft an alternative disposition resulting in a period of confinement under 180 days will allow his or her client to demonstrate in a subsequent removal proceeding that she should be allowed to remain in the United States and be accorded lawful resident status.

Step-by-step approach to construing individual offenses
Once defense counsel has examined the specific language in the immigration statute pertaining generically to convictions and sentences, there is a methodology that can be followed to assess specific provisions of the immigration statute and predict with some certainty whether specific criminal charges will later result in removal consequences. This methodology looks to existing law to limit immigration consequences to their minimum. Because this approach involves an expert assessment of the sections of the immigration statute corresponding to the offense in issue, the optimal analysis is one in which criminal defense counsel and immigration counsel work hand in hand.

In short, the first step is to assess the specific criminal offense charged, as well as any alternate charges to which the defendant might plead, and determine the elements necessary to sustain a conviction, as well as the sentence range and whether the offense is a felony or misdemeanor. Determining the nature of the conviction based on its elements often requires looking to state or federal decisional law interpreting the terms in the criminal statute.

The second step is to assess the immigration violation or violations potentially triggered by a conviction for the crime and to determine the elements necessary to establish the existence of such a violation based on such a conviction. If the elements of the offense for which the defendant stands to be or has been convicted do not correspond to the elements necessary to establish an immigration violation or to preclude relief from removal, it follows that Congress did not intend the defendant to be either removable or foreclosed from relief from removal.

Criminal and immigration law defenders as partners
The combination of immigration and criminal law consequences presents a tough area of law in which to provide representation. However, the area is as uncharted as it is tough.

Although there is no reason to expect needed reform of the harsh immigration laws in the near future, there are ways that an informed and creative defender can avoid or ameliorate the often irreversible immigration consequences that accompany a conviction. Under optimal conditions, defense counsel can work together with an immigration consequences expert to achieve a better outcome for his or her client. The Defending Immigrants Partnership stands ready to afford consultation and back-up in this effort.

Originally printed in the National Association of Criminal Defense Attorneys (NACDL), "Champion" (March 2003). Reprinted with permission.


[1] 533 U.S. 289 (2001).

[2] 8 U.S.C. 1182(c). Section 212(c) of the Immigration and Nationality Act of 1952, which had been interpreted to give the Attorney General broad discretion to waive deportation of resident aliens was restricted by Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, and later repealed under Section 304(b) of the IIRIRA.

[3]St. Cyr, supra, 533 U.S. at 315 (citing St. Cyr v. INS, 229 F. 3d 406, 416, 420 (2d Cir. 2000)).

[4]Id. at 322 (citing Magana-Pizano v. INS, 200 F.3d 603, 612 (9th Cir. 1999) ("That an alien charged with a crime ... would factor the immigration consequences of conviction in deciding whether to plead or proceed to trial is well documented")).

[5] Id. at 323, n.50 (citing brief for National Association of Criminal Defense Lawyers et al. as amici curiae 6-8).

[6] Id at 322 (quoting Bender, Criminal Defense Techniques 60A.01, 60A.02[2] (1999)).

[7] 8 U.S.C. 1101(a)(48)(A). See also Matter of Punu, 22 I&N Dec. 224 (BIA 1998).

[8] 8 U.S.C. 1101(a)(48)(B).

[9] 8 U.S.C. 1101(a)(43)(G).

[10] 8 U.S.C. 1101(a)(43)(F).

[11] 8 U.S.C. 1229b(a)(containing the statutory requirements for cancellation of removal for permanent residents).

[12] Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001); Matter of Ramus, 23 I&N 336 (BIA 2002).

[13] 8 U.S.C. 1101(f)(7).

[14] 8 U.S.C. 1229b(b).

About The Author

Lory Diana Rosenberg is director of the Defending Immigrants Partnership, a featured columnist for Bender's Immigration Bulletin (LexisNexis) and an adjunct professor at American University Washington College of Law, Washington, DC. She served as an appellate immigration judge on the Board of Immigration Appeals from 1995-2002.

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The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.