One of the most misunderstood areas of criminal practice by attorneys is the effect that a conviction may have on a non-citizen’s immigration status. As a criminal defense attorney, I have handled many cases where a conviction would result in my client’s deportation. Unfortunately as well, I have witnessed many other lawyers advise their clients to take plea deals which immediately cause the client to get deported.
Recently, the Supreme Court of the United States released the groundbreaking opinion of Padilla v Kentucky, 130 SCt 1473 (2010). In Padilla, the Court held that the Sixth Amendment requires that a defendant’s attorney must advise the defendant of the possible immigration consequences of a plea. If the attorney either completely fails to advise the defendant or misrepresents the immigration consequences of a plea, then the representation could be considered ineffective assistance of counsel.
Specifically, the Padilla Court held that when deportation resulting from a plea will clearly happen, the defendant’s attorney has a duty to inform the defendant that they will be deported. Ultimately, the Padilla Court referenced that the failure to properly advise one of the immigration consequences of a plea may constitute ineffective assistance of counsel under Strickland v Washington, 466 US 668 (1984).
In Michigan, when considering a claim of ineffective assistance of counsel in the context of a guilty plea, the court must determine whether the defendant tendered a voluntary and understanding plea. Accordingly, “[t]he question is not whether a court would, in retrospect, consider counsel's advice to be right or wrong, but whether the advice was within the range of competence demanded of attorneys in criminal cases.” People v Thew, 201 Mich App 78, 89-90; 506 NW2d 547 (1993) Further, “[d]efense counsel must explain to the defendant the range and consequences of available choices in sufficient detail to enable the defendant to make and intelligent and informed choice” between accepting a plea and going to trial. People v Jackson, 203 Mich App 607, 614; 513 NW2d 206 (1994) A guilty plea may be rendered involuntary due to ineffective assistance of counsel where defense counsel fails to explain the nature of the charges or discuss possible defenses thereto. Id
Although too numerous for this arcticle, there are many different types of criminal convictions which are automatically deportable. Stemming from 8 USCS § 1227(A)(2), below are some of the most common automatic deportable offenses:
- Controlled Substance Convictions – nearly every type of criminal conviction involving controlled substances, except for certain types of low level marijuana cases, are automatically deportable.
- Crimes Involving Moral Turpitude – this section of the law creates a broad classification of convictions which may be automatically deportable. Specifically, a crime of “moral turpitude” may include those which the conduct is dishonest, fraudulent, and contrary to morality. The bottom line is that an immigration attorney must be consulted to determine whether a certain charge is considered a crime of moral turpitude.
- Aggravated Felonies
- Crimes Involving Domestic Violence
This is a short list of what is an extremely broad area of law. Because of this, any time I have a case in which the client is not a United States Citizen, I speak with an Immigration Attorney who specializes in Immigration Deportation Hearings. Doing this allows me to give competent advice regarding what will happen when a plea is taken. Because of this, I have had many jury trials for the sole purpose to avoid the immigration consequences that may result from a plea.
Working with an immigration attorney is an extremely important part of the puzzle when dealing with immigration consequences. Even more important is finding an immigration attorney who actually understands the intricacies and nuances of Immigration Deportation Hearings and procedures. It took me a number of years before I finally was able to find an immigration attorney who truly understands this area of law. Now, with advice from Michigan Immigration Attorney Brad Maze, I am very confident I am providing the right advice to people in this situation.
Even prior to Padilla, I would always advice non-citizen clients of the possibilities of immigration consequences associated with guilty pleas to certain charges. Because of this, I have had jury trials both in State and Federal Court because of the negative consequences a guilty plea would create on a client’s immigration status.
With all of this in mind, anybody who has pled guilty and is facing deportation has a very good legal argument that they received ineffective counsel from their defense attorney. I have been successful in filing Padilla motions and saving people from deportation based on the same arguments that Mr. Padilla made in his case.
For more detailed information regarding understanding the specifics of Immigration Deportation hearings, click here to download the Immigration Consequences of Criminal Convictions by the Office of Immigration Litigation.
Jim Amberg is a partner at the lawfirm of Amberg & Amberg, PLLC. Jim has tried and won misdemeanor, felony, and federal jury trials and routinely handles everything from Major Narcotics Conspiracy to Murder cases. He argued and won the legally significant case of United States v Presley in the 6th Circuit Court of Appeals. Jim also has sued courts to stop the practice of illegally incarcerating minors. Jim is an active member of the Criminal Defense Attorneys of Michigan, the Michigan Association for Justice, and the National Association of Criminal Defense Lawyers. He has been named a Superlawyer by Superlawyer Magazine, a Top Lawyer by DBusiness Magazine, AV Rated by Martindale-Hubbell, and has a rating of Superb by AVVO.com.
If you have any legal questions regarding your case, please feel free to contact Jim at (248) 681-6255 or email at firstname.lastname@example.org.