Did Our Sixth Amendment Obligations Just Get Simpler?

August 10, 2019 | Comments (0)

A woman called the other day concerned about her boyfriend, who is living in the United States without citizenship. She wanted to know the immigration consequences of a conviction in light of President Trump’s 25 January 2017 Executive Order on immigration policy within the United States.

The Standard

Our obligations to advise our clients about the immigration consequences of their decisions in criminal courts are settled: “The importance of accurate legal advice for [non-citizens] accused of crimes has never been more important.” Padilla v. Kentucky, 559 U.S. 356, 364, 130 S.Ct. 1473, 1480, 176 L.Ed.2d 284 (2010). Where the immigration consequences of a decision are clear, the Sixth Amendment requires counsel to give correct advice about potential immigration consequences after a conviction. Id. at 369, 130 S.Ct. at 1483.

In State v. Nkiam, 778 S.E.2d 863 (2015), the North Carolina Court of Appeals left little room to waiver. A lawyer was ineffective when he offered equivocal advice regarding the immigration consequences of a guilty plea to aggravated felonies as defined by 8 U.S.C. 1101(a)(43)(G) & (U), which made the client’s deportation “presumptively mandatory.” Id. at 871. Unless the statute leaves some doubt as to the consequences of a conviction, counsel must advise a client facing deportation that he should expect the government to carry out the removal. Id. Potential remedies or defenses to deportation in collateral proceedings do not render the deportation consequences unclear, according to Nkiam. Id. at 871.

The Eligible

The Executive Order does not change who is legally subject to deportation, or removal, because that requires congressional action. A person is subject to deportation if he is removable. The first thing to determine is whether the boyfriend is removable.

If the boyfriend is undocumented, he is removable and subject to deportation at any time. The question is whether he is a priority for deportation, which we will discuss later.

If the boyfriend has immigration status, (green card holders, refugees, visa holders) the Executive Order is irrelevant unless the person becomes removable. According to 8 USC 1227(a)(2), a person with immigration status becomes removable after a conviction for certain crimes, including the following:

  • Crimes involving moral turpitude committed within five years (or ten years in certain cases) after the date of admission and a sentence of one year or more may be imposed;
  • Two or more crimes of moral turpitude committed at any time;
  • An aggravated felony committed at any time;
  • High speed flight from an immigration checkpoint;
  • Failure to register as a sex offender;
  • Controlled substance offenses with the exception of possession of 30 gram or less of marijuana for the person’s use;
  • Crimes related to firearms violations;
  • Crimes related to espionage;
  • Crimes of domestic violence
  • Trafficking as defined by 8 USC 1182(a)(2)(H) (human trafficking offenses)

The Reality

Quite likely, the most dramatic implications of the Executive Order are that they replace an emphasis on deporting people convicted of serious crimes with a mandate to prioritize a much larger group of people and give authorities broad discretion to determine whom to deport. According to the Executive Order, immigration authorities must prioritize for deportation the following categories of ‘removable’ people:

  • Those with any criminal conviction(s);
  • Those with pending criminal charges – even if such charges have not been resolved;
  • Those who have “committed acts that constitute a chargeable criminal offense;”
  • Those believed by immigration officers to pose a threat to public safety or national security;
  • Those who have a final order of removal; and
  • Those who have engaged in fraud/misrepresentation in applications to government, or who have “abused” public benefits.

The Executive Order elevated a broad range of low priorities to high priorities for removal. Any removable person who has been accused or convicted of a crime is a priority for removal, as well as any person who has “committed acts that constitute a chargeable criminal offense.” The Executive Order does not distinguish between types or levels of criminal offenses, leaving lower level offenders at risk of deportation.

As criminal defense lawyers, almost all removable clients have a high risk of entering deportation proceedings because nearly every client is charged, convicted, or under investigation for a criminal offense. Consider the Executive Order’s impact on the following examples:

  1. A client is cited for speeding 77 in a 45 mph zone. He is a resident alien with no prior record. The speeding charge is a misdemeanor. Although it’s a criminal offense, the client is not removable and not affected by the Executive Order.
  2. An undocumented client is charged with speeding 77 in a 45 mph zone. Although she has no criminal record and a low priority for removal under the Obama policies, the Executive Order includes her as a priority for removal.
  3. A resident alien without a criminal record is charged with domestic assault. She is not removable. If convicted, however, she becomes removable and a priority for deportation under the Executive Order.
  4. A scientist and resident alien was convicted of misdemeanor possession of schedule II three years ago. Under 8 U.S.C. 1227, he is removable. Although he kept his job doing cancer research, he is a high priority for removal under the Executive Order, even without a pending charge or new conviction.
  5. An undocumented construction worker without a criminal record lives with several men in a home in Alamance County. When he returns from work one day, investigators are in the home conducting a search. They find several bags of cocaine in his roommates’ bathroom. When everyone denies ownership of the drugs, the investigators arrest the construction worker along with his roommates. Because he is removable and has pending charges, the Executive Order makes him a priority for deportation.

In a way, the Executive Order makes our Sixth Amendment obligations simpler. Past confusion about immigration consequences often had more to do with priority than whether the person was removable. A person may have been removable, but not prioritized by ICE. Now, if our clients are subject to removal, we have to advise them that they are a high priority for removal.

Whether it’s practical or achievable for ICE to remove the entire group targeted by the Executive Order is not for us to decide. While the Executive Order increases the net of people designated as priorities for deportation, their rights under the immigration process remain. According to Nkiam, however, the possibility of obtaining relief from deportation in a collateral proceeding does not relieve us of our obligation to advise the client that he is deportable and a priority. 778 S.E.2d at 871. Based on that analysis, we must emphasize to our removable clients that charges, much less convictions, make them a priority.

The Strategy

Of course, that advice could lead clients to make poor decisions in their criminal cases in hopes of avoiding immigration consequences. Is there a uniform strategy for handling the criminal case? I suspect not.

One consideration is to fight until the end. Plead not guilty no matter what the options. Focus on the immigration consequences, instead of the implications of a criminal conviction. At the same time, the Executive Order does not change the criminal implications in State or Federal Courts in North Carolina. It creates collateral punishments in immigration proceedings, but the elements of the offense and the sentencing charts remain the same.

We should continue our efforts to negotiate pleas that reduce the immigration consequences or exposure to immigration enforcement agents, but the immigration consequences are only one facet of the case. Developing an overall strategy is as critical now as before the Executive Order. The clients must weigh the immigration consequences against the impact of criminal convictions based on accurate advice about both issues. The collateral punishments from immigration consequences may be dramatic and heart-breaking, but will not always outweigh the damage from a criminal conviction or prison sentence.

Amos Tyndall is a criminal trial lawyer, who represents people accused of serious crimes in state and federal courts throughout North Carolina. He has successfully defended people against a wide range of charges, including vehicular homicides, white collar offenses, and first-degree murder. Amos has taught trial practice with the National Institute of Trial Advocacy and Gerry Spence’s Trial Lawyer’s College and been listed in The Best Lawyers in America© since 2013. Call (919) 967-0504.

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