Criminal Defense Issues
Immigration Consequences for Criminal Charges - Assistance for Criminal Defense Attorneys
Many criminal charges and convictions may result in harsh penalties, such as removal (deportation), to noncitizens (immigrants, non-immigrants, and legal permanent residents, i.e. green card holders). We believe it is crucial that any noncitizen facing criminal charges consider these potential consequences at the earliest stages of the criminal proceedings, especially prior to entering a plea.
The attorneys at the Michigan immigration law firm of Antone, Casagrande & Adwers, P.C. are available to assist both noncitizen defendants facing criminal charges and criminal law attorneys regarding the potential immigration consequences of criminal charges.
If you are facing criminal charges of any kind, we recommend that you or your attorney contact us for a consultation to determine how best to proceed to protect your immigration status.
If you are a criminal defense lawyer, we are happy to consult with you about the complexities of immigration consequences of criminal charges and convictions, and about devising legal strategies for noncitizens in criminal proceedings.
If you have already been convicted of a crime, you may still be able to protect your immigration status, adjust your status, or naturalize. Please contact us for a consultation to determine your options.
The United States Supreme Court recently held that criminal attorneys must inform their noncitizen clients whether a guilty plea could risk removal (deportation). The decision reinforces the understanding of many in the U.S. that immigration laws have become increasingly complex and unforgiving. This is particularly true for noncitizens in criminal proceedings, which was the issue at hand in Padilla. “The importance of accurate legal advice for noncitizens accused of crimes has never been more important,” the Court recognized.
Although for the past several years criminal attorneys have generally understood they have an obligation to advise their noncitizen clients that deportation may be a consequence of his or her guilty plea, Padilla now establishes a duty to provide such advice. “The severity of deportation…only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.”
However, the Court explicitly noted the complexity of immigration law and that “it is a legal specialty of its own.” In light of this, the Court limited the affirmative duty of criminal attorneys in cases where the immigration consequences are unclear. “When the law is not succinct and straightforward… a criminal defense attorney needs do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” For those cases that are clear, for example with certain drug cases, “the duty to give correct advice is equally clear.” Failing to act, or misadvising the noncitizen, may result in a finding of ineffective assistance of counsel.
Justice Alito, agreeing that a duty does exist, wrote a concurring opinion in which he identifies limitations he believes should be placed on the duty imposed by the Court. He would require only that criminal attorneys advise their noncitizen clients to seek the legal advice of an immigration attorney. In his dissent, Justice Scalia argues that the issue of immigration advice is a collateral matter not directly related to a criminal case and therefore does not fall within the purview of the Sixth Amendment rights of criminal defendants. Based on this reading of the Sixth Amendment, he believes that misadvising a noncitizen of immigration consequences should not be considered inadequate legal representation that could be considered ineffective assistance of counsel.
We agree with the Court’s holding that an affirmative duty by criminal attorneys should exist. As the Court noted, removal is a severe consequence that can destroy families and lives, not unlike imprisonment. Immigration advice by a criminal attorney during criminal proceedings is essential for noncitizens because the outcome of criminal proceedings triggers immigration consequences and not vice versa. Waiting for post-conviction immigration advice can unnecessarily result in removal, a severe second sentence.
The full text of the opinion is available online at:
http://www.supremecourt.gov/opinions/09pdf/08-651.pdf
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The Law Firm of Antone, Casagrande & Adwers, P.C. helps individuals and businesses worldwide with all of their US immigration needs including employment visas, obtaining green cards for business and corporate employees and family members, visas for doctors, nurses, therapists, and other health care workers, together with waivers for physicians under J visa training program, labor certifications (PERM), national interest waivers, marriage-based adjustments and green cards, fiancee visas, family immigration preferences, students, naturalization and citizenship, including medical waivers, asylum, deportation, hardship waivers, voluntary departure and removal. We serve clients in southeast Michigan including the Detroit Metro area, Ann Arbor, and Lansing. With offices in Farmington Hills, MI, we are close to Southfield, Troy, West Bloomfield, Birmingham, Novi, Rochester and Auburn Hills in Oakland County; Canton, Plymouth, Dearborn, and Detroit in Wayne County; Warren, Sterling Heights, and Mount Clemens in Macomb County; Brighton and Howell in Livingston County; Lansing in Ingham County; City of Monroe in Monroe County, Ann Arbor in Washtenaw County; Grand Rapids in Kent County; Battle Creek in Calhoun County; Kalamazoo in Kalamazoo County; Benton Harbor in Berrien County; Holland in Ottawa County; Flint in Genesee County; Ludington in Mason County; Muskegon in Muskegon County; and Traverse City in Grand Traverse County, Michigan. Although many of our clients are located in the tri-county area of Wayne, Oakland and Macomb, we also serve clients in many cities and states in the U.S. including Cleveland, Toledo and Cincinnati, Ohio; Chicago, Illinois; Milwaukee and Green Bay, Wisconsin; Indianapolis, Indiana; Buffalo, New York; Los Angeles, San Francisco and San Diego, California; Phoenix and Tucson, Arizona; Dallas, Houston, El Paso and Galveston, Texas; Miami, Florida; Washington D.C.; Virginia, Minnesota, Pittsburgh and Philadelphia, Pennsylvania, and many others. In addition to the United States, we also serve Canadian nationals from numerous provinces in Canada, including Toronto and Windsor in Ontario; Montreal in Quebec; Halifax in Nova Scotia; and Vancouver, British Columbia. We also serve cities and countries such as London, England; Scotland and other countries of the United Kingdom (U.K.); Mexico, Paris, France; Frankfurt and Berlin, Germany; Tokyo, Japan; India; Brazil; Rome, Italy; Shanghai and Beijing, China; Belgium; the Philippines, and many other countries in Europe, Asia and South America. |
