You Just THOUGHT You Didn't Need to Take Immigration in Law School

This decision may impact the curriculum at U.S. law schools, where immigration law is ordinarily viewed as an arcane academic backwater, offered as an elective, and perhaps not available every semester. Now it would behoove every urban criminal defense practitioner to have a working knowledge of immigration law, lest this abstract new development of ineffective assistance of counsel doctrine ripen into more tangible legal malpractice claims.

Criminal Defense Lawyers Weigh in on New Requirements
By Sylvia Hsieh, Staff Writer
LawyersUSA

Criminal defense lawyers are weighing in on Wednesday’s Supreme Court decision, which held that they must inform non-citizen clients about the risk of deportation when taking a plea deal.

Such notification is a constitutional requirement for effective assistance of counsel pursuant to the Sixth Amendment, the Court said.
Many lawyers welcomed the ruling, saying it resolved an issue plaguing many criminal cases.

“It impacts so many of our clients. … Clearly the immigration consequences are enormous, sometimes even more serious than the criminal consequences,” said Tova Indritz, a criminal defense attorney in Albuquerque, N.M. and an expert on the intersection of criminal and immigration law.

“It’s an historic decision, because prior to [it] almost every lower court said the Sixth Amendment doesn’t require competent advice on deportation consequences,” said winning attorney Stephen B. Kinnaird, an appellate litigator and partner at Paul Hastings in Washington, D.C.

(Earlier in the week, an appeals court in Maryland refused to overturn a plea by a Latvian national who was not warned by his lawyer about the risk of deportation.)

Immigration attorneys also applauded the ruling.

“Immigration consequences of a plea are part and parcel of the [criminal] defense. It’s high time it be recognized,” said David W. Leopold, a Cleveland immigration attorney and president-elect of the American Immigration Lawyers Association.

He predicted that cases where a defendant has already taken a plea and faces deportation because he or she wasn’t warned about the risks may be reopened as a result of this decision, including two recent queries that came through his office involving federal pleas.

“They will have to be re-advised,” Leopold said.

‘Raised stakes’

The case before the justices involved a lawful permanent resident of 40 years and Vietnam War veteran who faced deportation to Hondurus, where he was born, after he pled guilty to a drug charge.

His attorney had told him he “did not have to worry about immigration status because he had been in the country so long.”

The Kentucky Supreme Court denied post conviction relief, finding that the risk of deportation was merely “collateral” to the criminal conviction.

But the Supreme Court said that recent changes in the immigration laws that broaden the class of deportable crimes and take away a judge’s discretion in deportation decisions have “dramatically raised the stakes” of a noncitizen’s criminal conviction and put it “within the ambit” of the Sixth Amendment right to competent counsel.

“The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part - indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes,” wrote Justice John Paul Stevens for the majority.

“It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the ‘mercies of incompetent counsel.’ To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation,” the Court said.

However, the Court noted that while in this case the attorney could have easily looked at the statute and found that nearly all drug crimes require mandatory deportation, in cases where the deportation consequences are “unclear or uncertain,” a criminal defense attorney “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

Some 28 states already have a requirement that a criminal defendant be warned generally of immigration consequences, often by the judge during the plea colloquy, said Indritz.

The ruling now applies to criminal cases in every state, as well as in federal cases, which did not have a rule about warning defendants of immigration consequences, she added.

Kinnaird predicted that federal prosecutors will make it explicit in plea agreements that a plea may carry immigration consequences “so their pleas aren’t at risk.”

‘White, pink or green’

For some lawyers, the new obligations may require a wholesale rethinking from the moment a client walks in the door.

“We have to get over our stereotypes. I don’t care if you’re white, pink or green, right after I ask your name, my next question is, ‘Where were you born?’ said Indritz.

Given the complicated maze of this area of law, experts suggest that criminal defense lawyers get up to speed on immigration law or work with an immigration lawyer.

“This requires that in every case, a criminal defense lawyer ask the client what his citizenship status is, then keep in mind if you’re pleading to something that [makes your client] removable,” said John Wesley Hall, immediate past president of NACDL, who practices in Little Rock, Ark.

In some cases, knowing about the immigration risks and then renegotiating a plea deal can keep your client from being banished. For example, a client could plead to a lesser crime in exchange for actual jail time, or a prosecutor could agree to reduce a sentence from one year to 364 days, thereby taking a crime out of the “aggravated felony” category for purposes of deportation.

But the calculus depends on a dizzying variety of factors, and jurisdictions are split on some definitions of what makes a crime deportable. In addition, a plea can carry a panoply of risks aside from deportation, including the risk of not being allowed back in the U.S. if a defendant travels abroad or the risk of ineligibility for citizenship.

“It’s an absolute minefield. A criminal defense lawyer is well-advised to give a detailed analysis to her client prior to engaging in a decision to take a plea or go to trial,” said Leopold.

Experienced criminal defense attorneys will get advice from an immigration specialist before a client pleads to a crime, said Ira Kurzban, an immigration attorney at Kurzban, Kurzban, Kurzban, Weinger & Tetzeli in Miami.

More ‘collateral consequences’ to come?

The ruling could lead to a further expansion of the Sixth Amendment right to the effective assistance of counsel.

“It’s a transformative decision and at least opens the door for further decisions on whether any other collateral consequences are also within the Sixth Amendment,” said Kinnaird, who argued the case for the defendant.

The biggest example would be the consequences for a defendant pleading guilty to a crime requiring registration as a sex offender; lesser examples include losing the right to serve on a jury or the right to carry a firearm as the result of a plea.

“Those are all questions for the future,” Kinnaird said.

Widener Law Professor Says Immigration Waivers Excessive, We Say Such Chaos Must Surely Ripen Into Corruption

Widener Law Professor Jill E. Family has penned an article on explicit and implicit waivers in our civil immigration adjudication system, and concludes - not surprisingly - that it is out of control.

This cannot come as a shock to anybody who has paid more than five minutes' attention to our immigration system in the past 30 years.

She published her research in the Social Science Research Network online database, whose abstract of her paper is reproduced below.

A Broader View of the Immigration Adjudication Problem
Jill E. Family, Widener University - School of Law

Widener Law School Legal Studies Research Paper No. 09-02


Abstract:

Are too many individuals diverted from civil immigration adjudication? Each year, the government completes millions of diversions from civil immigration adjudication through explicit and implicit waivers, the expedited removal program and the increasing criminalization of immigration law.

By uncovering and analyzing this diversion phenomenon, this article exposes an important piece of the immigration adjudication problem that has been largely undiagnosed. While judges, scholars, government officials and practitioners have acknowledged serious problems within the civil immigration adjudication system, this article widens the view to incorporate the issue of whether too many are being sidetracked from the system altogether.

This article concludes that too many are being rerouted from the civil immigration adjudication system because some of the identified diversions are not true to the administrative process design criteria of efficiency, accuracy and acceptability.

The government should reevaluate its efforts to steer foreign nationals away from civil immigration adjudication under the four guiding principles proposed here: (1) not all diversions are bad; (2) government coercion, misinformation or a lack of information should play no role in the diversion process; (3) no-option waivers should not be implemented and (4) open-ended, prospective waivers also should not be used.

My Inaugural Post

This is probably a blog that's going to get me into some trouble, and maybe lose some friends. Immigration is a touchy subject, and I don't intend to steer clear of the controversies, or even the polemics. Yet few subjects cry out with more urgency for clear-sighted policy analysis and stubborn integrity. So we're probably going to rip loose a scab or two.

In my inaugural post, I want to refer you to The Hightower Lowdown, a populist newsletter edited by Phillip Frazier and the ever-quotable Jim Hightower, that attempts in its January 2008 issue (vol.10, no.1) to synthesize a middle-of-the-road position on illegal immigration.

Hightower is of course a ferocious partisan, so he prefaces his serious propositions with the standard accusations of xenophobia, racism and demagoguery that are de rigueur among Open Borders activists. But Lowdown goes on to cite polls that show "deep and genuine alarm about (illegal immigration) among the nonxenophobic, nonracist American majority."

"In particular, workaday families are fearful about what an endless flow of low-wage workers portends for their economic future - and they're not getting good answers from Republicans, Democrats, corporate leaders or the media."

Hightower broadens the discussion beyond mere enforcement of immigration laws. The title of his article, "Immigrants Come Here Because Globalization Took Their Jobs Back There," bears the subtitle "Stop Blaming Workers - the Bosses Made This Mess."

Even if there were no illegal workers in our country, Hightower writes, our economy would remain fragile. It was powerful, well-connected corporate interests, not powerless immigrants, who downsized and offshored our middle-class jobs, rewrote bankruptcy laws to let corporations break their union contracts, turned the National Labor Relations Board into a partisan of employers against workers, reclassified millions of employees as independent contractors to deprive them of labor rights and fringe benefits, and turned a blind eye to the re-emergence of sweatshops and child labor.

"Immigration reform cannot be separated from labor and trade reform," Hightower writes. He coins a new term, "NAFTAfication," to describe what he thinks is causing the rush of illegal immigration, mostly from Mexico.

"We must stop the exploitative NAFTAfication of such aspiring economies as Mexico and instead devolop genuine grassroots investment policies that give people there an ability to remain in their homeland. Then we must enforce our own labor laws - from wage and hour rules to the NLRB."

The Lowdown says if we would "go right at the corporate kleptocracy that now owns Washington and controls the debate," we could eliminate the need to migrate from Mexico and revive the American middle class. This, Hightower writes, is "an immigration policy that will work."

I use the Hightower letter as the starting point for this blog, not because I believe it sets out a realistic program, but because I think it assembles all the elements of the illegal immigration debate. The idea that we can eliminate unskilled Mexican and Central American workers' economic motive to escape their homelands is sheer pie in the sky. Mexico is a sovereign country, and its ruling elites will never consent to the sort of intervencion that that would require.

On the contrary, they seem to feel entitled to intervene in our country, negotiating immigration policy with municipal governments and police organizations, contrary to Article I, Section 8 of our Constitution, objecting - despite Article IV, Section 4 - to our construction of fences on our sovereign territory, issuing identification documents from their consulates in U.S. cities, and supervising the labor laws and enforcement of criminal laws against their citizens residing here. We are confronted with an extraterritorialism that no self-respecting republic can accept.

And so we must learn to respect one another again, beginning with one another's sovereignty. In the words of the poet's stolid Vermonter neighbor, "good fences make good neighbors."

I let my neighbour know beyond the hill
And on a day we meet to walk the line
And set the wall between us once again
We keep the wall between us as we go
To each the boulders that have fallen to each
Mending Wall, Robert Frost

Yet Hightower's class consciousness should not be dismissed. It's true, as he writes, that powerless Mexican immigrants did not engineer our government's disloyalty to the middle class or its indifference to upward mobility.

It is urgent that we fix the illegal immigration problem, but Hightower is right that even if we fix it, it's still going to be a tough, often unfair labor system. U.S. workers shouldn't delude themselves that their future is secure once they put the illegal aliens to flight. If they don't follow up by holding North American elites' feet to the fire on labor reform and trade reform, making the illegals go home will just be an exercise in cruelty.