With as much talk as there has been over the last few years about immigration, you would think most criminal defense lawyers are sensitive to the potential consequences of a conviction for defendants who are not United States citizens. Unfortunately, I continue to see lawyers who believe certain dispositions will protect a client against removal proceedings. Generally, this occurs where the client is placed on deferred adjudication, or placed in some type of pre-trial diversion program. They mistakenly believe that if there is no conviction, there are no immigration consequences.
I’ve recently seen cases where a defendant was placed on deferred adjudication for a minor offense, and when they went to report for probation, were met by ICE officials. They had no idea that could happen until it was too late.
I’ve also seen too many cases where the lawyer fails to ask about a client’s immigration status. They may have grown up here, graduated from high school or even college, and have stable jobs. There is nothing to suggest they are not United States citizens. Some lawyers also ask the wrong question; they might be here under DACA, or have a valid work permit, and if asked if they are “legal” will truthfully answer yes.
The remedy is an application for writ of habeas corpus
Once a person is in immigration custody, the only option is to file an application for writ of habeas. Generally, that will be based on a claim of ineffective assistance or a claim that the plea was not voluntary. Since Padilla, the law is clear that a lawyer has the obligation to advise a defendant about the consequences of a conviction. The question becomes how extensive that advice should be; in other words, is it enough to say you “might” be deported, or do you need to go further? Under the current administration, do you have an obligation to advise a defendant that they will be deported, or removal proceedings will be initiated?
Writ claims can be divided into two categories:
- The failure to provide advice. The failure to provide any advice is rare. Most lawyers know enough to at least tell a client that they might have a problem if they are not a United States citizen. However, it might happen if the lawyer is not aware of the client’s status. There is an argument to make that a lawyer has the obligation to ask the questions and to ask the right questions.
- The failure to provide accurate advice. This occurs most often where a client is subject to mandatory deportation, and the lawyer simply tells them they “might” be deported. If the result is automatic, the client needs to know that. This can also occur where the lawyer incorrectly tells the client that they don’t have anything to worry about.
Simply having a claim is not enough to obtain relief though. There are two parts to an ineffective of counsel claim. You must first prove that the lawyer’s performance was deficient. You must also establish that you were prejudiced. In this context, that means establishing that you would not have pleaded guilty if you had received accurate advice. The ability to do that depends on the facts of the case; if you were caught “red-handed”, and have no possible defense, you are going to have a difficult time establishing you would have insisted on going to trial.
I believe there will be a wave of claims involving defendants who receive some type of deferred disposition. The reason is that very few lawyers recognize that placement into such a program can subject a person to removal proceedings. Additionally, enforcement has stepped up, especially in Texas. I’ve seen a lot of people who were probably subject to removal proceedings, but nothing was ever done. Now, you can expect even the most minor offense will result in some type of action. Until criminal defense lawyers understand this, there are going to be people who suddenly find themselves in a holding facility. At that point, the options aren’t great, but at least you have some.
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