Considerations When Representing Foreign Nationals in Criminal Proceedings

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1 Considerations When Representing Foreign Nationals in Criminal Proceedings by Jeffrey Y. Bennett (www.jybennettlaw.com) Padilla v. Kentucky, 130 S. Ct (2010), is a case in which the US Supreme Court decided that criminal defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea. The case extended the Supreme Court's prior decisions in criminal defendants' 6th Amendment right to counsel context. The duties of Counsel recognized in Padilla are broad and include where the law is unambiguous, attorneys must advise their criminal clients that deportation "will" result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation "may" result. Finally, attorneys must give their clients some advice about deportation counsel cannot remain silent about immigration. It is yet unclear what satisfies as proper notice and advise to clients of these consequences and if it shall extend to other areas of law. Here's a link to the case opinion: 1) Determine if your client is a foreign national. Do not assume your client is a US citizen. If your client is in fact a foreign national, find out exactly what non-citizen category they fall into (for example, immigrant-lawful permanent resident or green card holder, non-immigrant such as a F1 student visa holder or H1B skilled worker etc.). The type of foreign national the client is is important because the immigration consequences of the crime and possible resolutions of the matter vary depending on the specific status of the client. For example, lawful permanent residents have certain protection from deportation that other visa holders do not. It also important to identify what country your client is from, as specific countries may offer the client certain benefits and protections. 2) Do your research. Start with obtaining a copy of the statute which details the essential elements of the crime your client is charged with and that which lists the maximum possible sentence, punishment or fine. This will be extremely important when analyzing the immigration consequences of your client's alleged actions or activities. You should determine if your client s offense falls within the six big deportable offenses categories: aggravated felony, crimes involving moral turpitude (CIMT), controlled substance act crimes, firearms crimes and crimes of violence and domestic violence. Some exceptions to mandatory deportation for the aforementioned offenses include the petty offense exception to deportation, which applies if an alien has committed only one CIMT offense where the maximum possible sentence of 55--7

2 imprisonment does not exceed one year, and the alien is not sentenced to more than six months of imprisonment (regardless of whether the sentence is suspended or the alien is released early on parole. 3) Understand the importance of misdemeanors. Although misdemeanors involve relatively minor consequences for U.S. citizens, one misdemeanor theft charge or bad check charge for a foreign national can cause that person to be deported or denied admission to the U.S. 4) Effectively use bonds.. Even when a criminal bond is posted the foreign national may still be held in mandatory detention by immigration authorities and given no credit for the custody. In such situations, counsel should attempt to post a bond quickly before the immigration authorities put an immigration detainer on the individual. 5) Make sure you understand the definition of conviction for immigration purposes and which plea arrangements can help avoid a conviction or minimize immigration consequences. A conviction, as defined by the Immigration and Nationality Act, Sec. 101(a)(48) ( INA ), requires BOTH: 1) an admission of guilt or a finding of guilt by a judge and 2) the imposition of some form of punishment by the court. Pleading no contest is still considered an admission of guilt. The second thing a good criminal defense attorney should know is that a suspended imposition of sentence ( SIS ) or a suspended execution of sentence ( SES ) is still a conviction for immigration purposes. The INA s definition of a conviction basically ignores an SIS for removal purposes. In other words, a defense attorney may recommend a client plead guilty, get an SIS, and save his client jail time. But when immigration authorities catch up with the client, they will be incarcerated again and subject to deportation proceedings. Accordingly, deportable offenses need to be plead down to a non-deportable crime. Indeed, in some cases, even a more serious charge may save an alien from deportation if it does not fall within the deportable offenses categories mentioned above. 6) Be sure to keep admissions of the essential elements of the crime or charge out of the record or transcript. Any admissions by a foreign national to any essential elements in the recitation of facts in the public record, court record, police report, diversion, plea agreement, court notes or otherwise can be used against them by immigration authorities and even aggregated to have the same effect as an adjudicated conviction for the purpose of deportation or non-admission. 7) Seek Immigration Co-Counsel for Advice or a Written Legal Opinion. Under the US Supreme Court decision in Padilla v Kentucky, every criminal defense attorney must advise their client who are foreign nationals of the specific immigration consequences to their plea agreements resulting in a conviction or otherwise. This means an attorney cannot just say there are consequences and then move onto plea agreement negotiations. Accordingly, a specific 55--8

3 analysis into each element of the crime and consultation with a competent immigration attorney is often necessary in order to properly evaluate a local, state or federal crime and correctly advise foreign national clients in criminal proceedings. 8) Marriage to a U.S. citizen does not preclude deportation. Foreign nationals receive no enhanced rights to stave off deportation if they are married to a U.S. citizen. They must still apply for a green card to remain the country. Of course, obtaining a green card is contingent upon the results of the requisite immigration and criminal background checks, so attorneys must advise clients who are convicted of certain crimes that they will likely be unable to obtain a green card or other immigration status in the U.S. 9) It Ain't Over Until It's Over and Even Then... Foreign nationals who successfully obtain legal immigration status in the U.S. can be still be stripped of such status if convicted of certain crimes even up to the very point they take the oath of allegiance at their naturalization ceremony. Additionally, in cases of fraud and certain other offenses, a naturalized citizen can be denaturalized and lose their citizenship. Divorce to a foreign national who has been granted lawful permanent resident status through their US citizen spouse does not relieve the US citizen spouse's financial responsibility as the sponsor under immigration law. Also in divorce cases a GAL (Guardian Ad Litum) should be immediately appointed to the children's passports taken away so as to prevent international child abduction and if this does happen what can be done depending on whether the abductor is from a Hague or non-hague Convention country. 10) Tell Your Client to Shop Around for Counties or States When Trying to Obtain a Marriage License, Driver's License, or Even Business Licenses. Each state and locale is different, less or more strict in issuing licenses of all kinds and it helps to shop around by city, county, state or even branch office. Representing foreign nationals in criminal proceedings requires an attorney to have a good understanding of the immigration consequences of the outcome of such proceedings. Accordingly, attorneys who wish to represent a broad range of clients in criminal proceedings should have a working knowledge of immigration law or align themselves with a competent immigration attorney. About the Author: Jeffrey Y. Bennett is a business, family, and criminal immigration attorney in Kansas City, Missouri. He is available to provide criminal defense attorneys written legal opinions for their clients on specific immigration consequences of criminal conduct (convictions or admissions) which will satisfy the requirements imposed on criminal defense attorneys under Padilla v KY. For more information about him please visit or contact him at 55--9

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