Considering Immigration Consequences When Defending Criminal Charges
Noncitizens who are not properly advised of the immigration consequences of criminal charges often suffer irreparable damage to their current or potential lawful immigration status. As you'll see below, deportation can result from even a single minor offense. The unintended but inevitable consequences of criminal cases handled without regard to immigration effects include mandatory detention, deportation, and permanent separation from close family, including citizen children and spouses. In some cases, these consequences could have been avoided had counsel provided informed advice and attempted to defend against such consequences.
Many criminal charges trigger mandatory detention once the person is in removal proceedings. Immigration judges often lack the power to consider whether the person should remain in the US in light of equitable factors such as serious hardship to US citizen family members, length of time living in the US, or rehabilitation. Thus, immigration consequences of criminal convictions have a strong, often disproportionate, and often unavoidable impact on noncitizens defendants and their spouses and children.
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Real World Examples of Immigrant Lives Impacted by Criminal Charges
by Rose Cahn, Criminal and Immigrant Justice Attorney; Director ILRC. Testifying to the US Commission on Civil Rights May 2017
On May 19, 2003, Angel Ramirez was pulled over while driving home from work. A careful driver, Angel was sure he hadn’t been speeding, but during this “routine stop,” police asked for proof of citizenship. Having none, he was immediately arrested, transferred to immigration custody, and placed in removal proceedings. At the time of his arrest, Angel had lived in the United States for thirty years. He was a well-liked, civically engaged, small-business owner. He and his U.S.-citizen wife had four children together and a fifth on the way. But, due to a single marijuana conviction from 1999—when he was eighteen and represented by counsel who never told him the lasting immigration consequences of a plea—Angel faced losing his family, his business, and the only country he had ever called home. Barred by his conviction from lawful permanent residency and any opportunity for discretionary relief, he was deported to Mexico.
In August 2008, Maria Sanchez, a long time lawful permanent resident, was convicted of growing a marijuana plant in her back yard. Born in Mexico, Maria had lived in the United States for over three decades, raising her children and grandchildren here. Maria suffered from arthritis and turned to the same remedy her mother and grandmother had used: she grew a single marijuana plant, soaked it in rubbing alcohol, and rubbed the alcohol tincture on her painful joints. This was Maria’s first and only arrest. Her public defender got a good deal from a criminal perspective: four months of house arrest. Unbeknownst to Maria, however, that plea was the functional equivalent of signing her own deportation order. Considered an aggravated felony under immigration law, the conviction subjected Maria to mandatory deportation and mandatory imprisonment, with no opportunity for discretionary relief. She suddenly faced the real likelihood of being separated from her family forever.
When he was 12 years old, Richard left his home country of Jamaica to join his parents in the United States as a lawful permanent resident. He loved this country and volunteered to serve in the U.S. Army during the Vietnam War. He had a tough time reintegrating after he returned from his tour of duty. He was convicted for a small-scale drug offense for which he served twenty-three days in county jail. Richard eventually sobered up, got his life back on track, and decided to apply for U.S. citizenship. Instead of receiving his citizenship, however, Richard was placed in removal proceedings, and threatened with deportation to a country he hadn’t called home in over fifty years.
The US legal system leads to fast-track, discretionless deportations of people with criminal convictions
For immigrants like Angel, Maria and Richard, the lasting consequences of a criminal conviction—causing permanent separation from family, lifetime banishment, and denial of any form of discretionary relief—are not “collateral” at all, but the direct and mandatory consequences of their criminal convictions.
As the U.S. Supreme Court has recognized, the immigration consequence of a conviction “is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants.”
An estimated 65 million people have prior convictions
This country’s immigration system, which today is more focused than ever on swiftly deporting noncitizens who come into contact with law enforcement, is colliding with an epidemic of mass incarceration. An estimated 65 million people suffer the lifelong consequences of a prior conviction. Indeed, when President Obama released 6,000 people convicted of nonviolent drug offenses, a third of those released were immediately sent to immigration detention facilities to await their deportation. While people talk about the need for “second chances,” the unforgiving nature of federal immigration law makes that notion illusive for most immigrants.
Immigrants face all of the barriers to reentry that citizens face plus an additional, compounding horror: lifelong banishment and permanent separation from their families. While this threat is particularly acute under the current presidential administration, the legal framework dates backs many decades.
3 million people have been deported in the last 8 years
The years 2008-2016 saw more people deported than any other in the course of our nation’s history. The 3 million people deported in the last eight years are more than all the people deported from the United States between 1892 and 1997 combined. Immigration and Customs Enforcement recently reported that a record-high 91% of interior deportations were of individuals who had criminal convictions. This is consistent with a fifteen-year trajectory during which the number of removals of noncitizens convicted of, or even just charged with, any crime has increased by a staggering 317%.
The federal immigration framework that makes this possible was laid out in two laws passed in 1996 that dramatically altered the U.S. immigration system: the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA). The 1996 Laws make the immigration system so severe that a single marijuana conviction can lead to deportation for many green card holders, regardless of their time in the country or ties to U.S. citizen family members.
The 1996 Laws made three broad changes to the U.S. immigration system:
- First, they vastly expanded the criminal grounds of deportation.
- Second, many of the newly deportable offenses trigger mandatory detention and deportation. This bars immigration judges from considering people’s life circumstances before ordering them to a foreign country. This means that many noncitizens will never even see an immigration judge before they are deported. In addition, even if a noncitizen is lucky enough to see an immigration judge, the 1996 Laws severely restrict the relief that the judge can grant.
- Finally, the 1996 Laws significantly reduced the power of the courts to ensure the laws are fairly enforced. They make relief from deportation extremely difficult by creating fast-track deportation procedures that allow low-level Department of Homeland Security officers to bypass the immigration court system.
The 1996 Laws act as one-strike laws. Noncitizens who commit certain crimes can be subject to mandatory deportation even when there is no jail sentence imposed. In some cases, noncitizens can face mandatory deportation based on the maximum sentence that could be imposed for their offense, rather than what was actually imposed. The 1996 Laws also allow the federal government to ignore state expungement laws and treat suspended sentences as if they were served.
The rate of removal for immigrants with criminal convictions will likely only increase under the current presidential administration, which has frequently reiterated its intent to expand the number of immigrants in removal proceedings. The current president has said that anyone even accused of a criminal offense will be prioritized for deportation. The 1996 laws give the administration the legal framework to execute on this promise.
Last updated 7.23.18
Do Not Delay if Charged With a Crime
If you are a noncitizen charged with a crime, it is critical to quickly seek legal advice to minimize potential immigration consequences. We invite you to call 844 325-1444 to speak with our experienced immigration and criminal defense attorneys.
This information does not constitute legal advice and is not a substitute for individual case consultation and research. No representations are made as to the accuracy of this information and legal counsel should be consulted before taking any actions.
Chudnovsky Law is a California based law firm practicing in the areas of immigration, criminal defense, DUI defense & injury law. Our firm offers a rare team of experienced multi-lingual immigration attorneys and top criminal defense and injury attorneys.
The intersection between immigration and criminal law is one of the most complex areas of US law. Chudnovsky Law is recognized as a leader in criminal defense for clients from all countries and addressing the immigration consequences of criminal charges.
Chudnovsky Law services immigration clients nationwide and all other cases in Los Angeles county, Orange county, Harbor Justice Center, Riverside county, Santa Barbara county, Santa Monica and Ventura county.