For noncitizens who find themselves in the criminal justice system, the stakes are especially high. In certain cases, a single criminal conviction can result in mandatory deportation – even if the person had previously been a lawful permanent resident. Other cases may render individuals inadmissible, meaning if they leave the country they will not be allowed back in. Still others may make a person ineligible to become a citizen, or may delay the citizenship process.
All defendants in criminal proceedings have the constitutional right to the effective assistance of competent counsel. In the 2010 case Padilla v. Kentucky, the United States Supreme Court explicitly determined that the duties of defense counsel include providing noncitizen defendants with advice about the immigration consequences of their cases.
Although Padilla was decided more than six years ago, and was based on growing consensus that defense attorneys should be advising their clients about the immigration consequences of their cases, too often the representation actually received falls short. In Minnesota, court rules require that courts and defense counsel ensure that criminal defendants understand: “If the defendant is not a citizen of the United States, a guilty plea may result in deportation, exclusion from admission to the United States, or denial of naturalization as a United States citizen.” While this generic warning helps ensure that individuals are aware of the possibility of immigration consequences, it does nothing to explain or analyze the actual impact of a particular case.
So what can noncitizen defendants and their families do to ensure that they get accurate and complete advice from their defense attorneys?
- Bring up the subject of immigration consequences early and often. Be sure your defense attorney knows your immigration status and your goals and priorities for the case.
- If possible, hire an immigration attorney. While some criminal defense attorneys practice immigration law, most do not. It is fair to expect your criminal defense attorney to have a basic understanding of the immigration consequences of criminal convictions, but most cannot provide the same depth of knowledge and experience as an attorney who regularly (or solely) practices immigration law. Similarly, most immigration attorneys have a basic understanding of criminal law, but if your ability to stay in the country is on the line, you need a defense attorney with the experience and skill to get you the best possible outcome. While hiring multiple attorneys may be costly, it is far less expensive to get a case done right the first time than to try to fix it later.
- Be sure your questions have been answered to your satisfaction before making decisions about how to proceed with your case. Do not allow your attorney, the prosecutor, the court, or anyone else, to pressure you into making a decision until you are sure you understand the immigration consequences.
Every noncitizen who is involved in the criminal justice system needs a defense attorney who is prepared to address the problems of immigration consequences head-on, including enlisting the help of a specialist. If you or someone you know is a noncitizen defendant, contact us today for a free consultation.