"AS been widely acknowledged, determining whether a particular crime is an ‘aggravated felony’ or ‘crime involving moral turpitude’ is not an easy task." - US Supreme Court Justice Samuel Alito, Jr.’s, concurring opinion in Padilla v. Kentucky (March 31, 2010).
Having practiced widely in both immigration and criminal law, it is refreshing to read a justice of the US Supreme Court recent decision acknowledging that the confusing interplay between criminal convictions and immigration law is a legal minefield. Criminal defense attorneys should be obligated to advise immigrants on both grounds to avoid immigration consequences to criminal convictions.
Consulting a single law book is usually insufficient to define whether a crime is "aggravated felony" or "crime involving moral turpitude." The determination of the immigration consequence of a crime is interpreted by several different statutes, courts and agencies. Just reading the Immigration and Nationality Act to decide the consequences of the aliens’ crimes, will likely give deficient advice that may lead to the deportation of their immigrant clients.
In the case of Padilla, the US Supreme Court held that criminal defense attorneys have a duty pursuant to the US Constitution’s Sixth Amendment’s assistance of counsel clause to give correct advise of the immigration consequences if the "deportation consequence is truly clear." However, when the deportation consequences of particular plea are "unclear or uncertain" then a criminal attorney merely needs to advise their client that there "may" be a risk of deportation.
Padilla was charged with transporting a large amount of marijuana. His criminal defense attorney told him that he "did not have to worry about immigration status since he had been in the country for so long." This was blatantly wrong advice, as convictions for most drug crimes besides some instances of simple possession make an alien removable without available defenses.
I believe this case creates a new open area of law to define which circumstances of crimes are "‘clear" and which are "not clear." Advocates for criminally accused or convicted aliens will now try to make the complex seem simple, the "unclear" to become "clear."
Justice Alito’s rightly opines that a criminal defense attorney should at least be required to advise a client to consult an immigration lawyer. However, a concurring opinion is not the law of the land.
If a non-citizen is charged with a crime they should always consult with a lawyer well versed in both immigration and criminal law. Sometimes criminal defense lawyers will not admit or realize they do not know all they should. Do not get caught in the trap of facing removal from the United States because your lawyer did not tell you to seek the advice of an experienced immigration professional.
Every alien should make sure their lawyer understands these issues before entering any plea. If they were not so advised, they might then have opportunities to vacate that conviction through a process called post-conviction relief. Padilla is now an additional weapon in the immigrant’s arsenal to stay in America. But its effects may be limited to the most egregious clear mistakes of criminal defense counsel.
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Please contact Atty. Joel Bander for any questions regarding immigration and criminal defense. Address: 13101 Washington Boulevard, Suite 231, Los Angeles, CA 90066. Tel: 310-390-7400 Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
( Published April 17, 2010 Asian Journal Los Angeles. p. C3 )
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