Even when the criminal lawyer does a good job of minimizing the crime and the penalties, if he does not inquire as to the immigration status of his client, the disposition will be a ticking time bomb. The immigration damage, usually permanent, often outweighs the criminal penalties the client will face. In these cases, the strategy should be directed primarily to avoiding the immigration consequences. In the last 20 years the number of non-citizens deported on criminal grounds has increased more than 36 times.
The immigration authorities are frequent visitors of jails and prisons, placing immigration holds on anyone who appears deportable. Even a traffic stop can bring someone to their attention. All immigration applications will trigger a criminal history check. The immigration officials at airports or any ports of entry have access to the NCIC (the immigration databases and criminal state/federal databases). Thus, many people who have never had problems traveling before are now being arrested at the airport, returning from abroad, and placed in removal proceedings.
Most non-citizen defendants with criminal convictions are placed in mandatory immigration detention, without possibility of bond. For those convicted of an offense considered an “aggravated felony,” deportation is mandatory, no possibility of release on bond and is barred from nearly all forms of relief.
I am working on a case in which the defendant had pled guilty to a drug trafficking charge for the low term sentence but as I just articulated above, this is the worst charge that her public defender could have negotiated for her. It is an aggravated felony offense coupled with the underlying charge of drug sales making it nearly impossible to keep her here in the United States.
However, there is a remedy, albeit, it will be an uphill battle. This remedy is to file a motion to withdraw and vacate the guilty plea due to ineffective counsel and/or lack of being advised by the attorney, the judge and in writing that she will be deported. The standard for ineffective counsel is what is “reasonable under prevailing professional norms.” Strickland v. Washington (1984) 466 U. S. 668.
People v. Soriano (1987) 194 Cal.App.3d 1470, requires “informed decisions…reached after meaningful consultation” concerning immigration consequences. The Soriano and Bautista cases define what is considered “adequate advice.” In Soriano, advising a defendant that a plea “might” have immigration consequences is not adequate effort. If a defendant is advised that he “would” be deported for a plea to an “aggravated felony” but other immigration consequences such as permanent banishment and alternative dispositions were not discussed would still be unacceptable.
In vacating the conviction, the defendant must also show prejudice. The defendant would never have entered this plea if properly advised concerning the immigration consequences of the conviction. If proper advice had been given, the defendant would presumably have inquired of court or counsel about the consequence of the plea and upon discovering, would have refused to enter the plea bargain.
While this article is not meant to cover all the issues, as a general rule of thumb, you will be involved in the deportation process, if you plead (1) to a charge involving drugs or firearms; (2) crimes of moral turpitude like domestic violence; (3) aggravated felonies like possession of drugs for the purpose of sales (4) any felony which you are sentenced to more than 364 days.
As a practical matter, recent case laws open up to scrutiny virtually all pleas entered by non-citizens which triggers immigration consequences. The remedy will be to set aside the plea and conviction and litigate the matter anew. However, this remedy is very costly and difficult. It is best to invest in a good lawyer that will know the nuts and bolts of both the criminal and immigration system up front instead of later.