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February 8, 2010

Clients Without Citizenship: What every Criminal Lawyer Should Know About Immigration Courts

An estimated 300,000 children of illegal immigrants are born in the United States every year, according to the Pew Hispanic Center. Because they are born in the United States, these children are automatically U.S. citizens.

In many cases their parents use their children’s citizenship to begin the process of securing citizenship for themselves.  However, there are more barriers to obtaining U.S. citizenship than loopholes.

Criminal defense lawyers need to make sure they are aware of the consequences of criminal convictions from both a criminal and immigration court perspective when working with immigrant clients as outcome could permanently affect their opportunities for citizenship.

Those were some of the messages presented at “Prosecuting and Defending Immigration-Based Criminal Offenses: What Prosecutors and Defense Attorneys Should Know,” an _ Criminal Justice program presented Feb. 5 during the ABA 2010 Midyear Meeting in Orlando, Fla.

Participants discussed the complications and loopholes – or lack thereof – in dealing with various levels of criminal based offenses under immigration law statutes. They recommended that lawyers working with clients who are immigrants should gather the following information:

  • Country of origin
  • Immigration status of family
  • Lawful status (i.e. green card, working visa etc.)
  • Criminal history
  • Illegal entry or re-entry
  • Alien File (A-File)

Panelists pointed out that anything in a client’s criminal history falling under the definition of an aggravated felony will keep that immigrant client from being granted relief from deportation.

Importantly, they stressed, in immigration, misdemeanors can be considered an aggravated felony, meaning that criminal laws for citizens and immigrants are not the same.  The definition of aggravated felony in immigration courts has changed many times based on decisions by Congress because the federal government confers citizenship.  They also noted that future congressional changes to the definition can be applied retroactively.

Another important factor is that the rights of citizens to counsel in criminal cases and to exclude illegally obtained evidence do not exist in an immigration court. However, due process applies to all persons in the U.S. including aliens.

Throughout the session, panelists emphasized that a criminal defense lawyer should either hire or consult with an immigration lawyer early on the in the criminal process because each discipline has a different objective.

Although in criminal law avoiding a conviction is the goal, it may not be such a great thing for an immigrant without citizenship status, panelists acknowledged. Also it is important to keep in mind that reversed convictions do not count in immigration court, but expunged convictions do.

Other tools for a defense lawyer that the panel discussed include awareness of opportunities to reopen the immigration court proceedings, knowledge of how to set aside a removal deportation order and understanding how to vacate prior convictions.

A potential upcoming change in immigration law is the case of Padilla v. Kentucky, a pending Supreme Court case that will determine whether an alien was denied effective assistance of counsel and thus entitled to a reversal of conviction based on failure to warn or advise of the immigration process and convictions.

Panelists included:

  • Julia Preston, reporter, National Immigration Correspondent, New York Times
  • Jason Linder, assistant United States attorney
  • Jaime Hawk, assistant federal defender
  • Andrew Feldman, Miami lawyer
  • Robert McWhirter, Maricopa County (Ariz.) Legal Defenders Office
  • Earle Wilson, U.S. Immigration Judge.

More information about the differences between immigration courts and criminal courts is available in a book written by panelist Robert McWhirter, The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers, published by ABA Publishing.

Learn More About:  Criminal JusticeImmigration