Judge discusses immigration and the cost of a criminal conviction; Padilla v Kentucky changed the landscape

By Roberta M. Gubbins

Legal News

The law of unintended consequences can apply when criminal and immigration laws meet. Sometimes, the intended solution in a criminal case can make the problem infinitely worse for the non-citizen criminal defendant.

Those consequences fall in three categories, deportation, exclusion, or denial of naturalization. Judge William G. Kelly explained each category for the members of the Criminal Law Section at Gone Wired Café in Lansing on May 14th.

"Deportation is forced removal from the United States and prevents the individual from legally returning for five years.

Exclusion can bar re-entry. "For example, they go to Windsor for an evening at the casinos and they can't get back in. The exclusion may be based on crimes committed in the United States or abroad."

"Denial of naturalization means they can live in the U.S. but can't be a citizen. If, for example, you have a drunk driving on your record it can make the procedure to be a citizen more difficult."

Up until Padilla v Kentucky, courts and attorneys did not consider citizenship in criminal cases. In Padilla, the defendant had been a lawful permanent resident for 40 years when he pled guilty to drug distribution charges. When asked if the conviction would affect his residency status, his attorney advised him not to worry about deportation because he had lived in the U.S. for so long. The result was mandatory deportation and an ineffective assistance of counsel admonishment to the lawyer for not advising the client about the risk of deportation.

What advice must a court give?

There are two proposals for amendment of Michigan Court Rules (MCR) 6.302, Pleas of Guilty and No Contest and 6.610, Criminal Procedure Generally, before the Michigan Supreme Court. According to MSC Staff Comment:

"Proposal A would require a judge to ask a noncitizen defendant and the defendant's lawyer if they have discussed possible risk of deportation as a consequence of a guilty plea. The focus of this inquiry is whether the defendant is a noncitizen, and what the defense counsel has told the defendant.

"Proposal B would require a judge to give general advice to any defendant (whether or not the defendant is represented by counsel) that a guilty plea by a noncitizen may carry immigration consequences. This alternative would obviate the need to determine the defendant's citizenship status, which the defendant may not know or be willing to divulge."

What is a conviction in the eyes of Immigration?

"A conviction as viewed by Immigration and Customs Enforcement," Judge Kelly said, "is a formal judgment of guilt due to a plea or judge or jury verdict."

A diversion, if granted by the prosecutor, can be helpful. But if it's a court diversion where they come into court and state the facts on the record--the state court says it isn't a conviction but ICE says it is."

Kelly was asked if the defendant admitted what they did wrong to the Prosecutors office to be admitted to their diversion program, would that be a conviction? "That's the sort of thing you want to talk to an immigration lawyer about."

Expunging a conviction "doesn't help," he said.

Which crimes can lead to immigration sanctions for non-citizens?

"Deportation can be consequence of conviction of a crime of violence with a sentence of one year or more," Kelly said, "as will conviction of a crime of moral turpitude, whatever that is. For example, prostitution is a crime of moral turpitude while criminal trespass is not. This gives you an idea of how complicated immigration law is" and why an immigration lawyer is needed.

Crimes that can result in exclusion are those with a possible sentence of more than a year or the alien was actually sentenced to more than 6 months. Such crimes include being a drug addict or abuser or even if "you never used or sold drugs but your family did and you are benefiting from that business."

There are some offenses that can cause problems for those seeking naturalization. Persons such as habitual drunkards, gamblers, a person who has been in jail for a total of more than 180 days can be denied naturalization for lack of good moral character.

"Immigration law is complex," Judge Kelly said. He recommended that lawyers determine the citizenship of their clients and advise them to talk to an immigration attorney before they decide on how to proceed with the criminal charge.

Published: Fri, Jun 10, 2011