Practicing At The Intersection Of Criminal And Immigration Law (aka”Crim-Imm”)

Practicing At The Intersection Of Criminal And Immigration Law (aka”Crim-Imm”)

Practicing At The Intersection Of Criminal And Immigration Law (aka”Crim-Imm”) 1920 1440 Helen A. Sklar

What is crim-imm and why is it so important in the wider field of immigration law?

“Crim-imm” refers to the crossover area of criminal law and immigration law, where criminal and immigration law intersect. It is a field of law scholarship and practice that emerged as the traditional boundaries between criminal and immigration law began to fade.  The field encompasses (1) defending immigrants charged with inadmissibility, removability and/or benefit denials based on convictions or allegations of criminal conduct; (2) representing clients in bond and mandatory detention proceedings; (3) assisting criminal defense attorneys to investigate an individual’s criminal and immigration history and to construct an immigration-safe plea; and (4) seeking post-conviction relief to eliminate immigration consequences.

The work of crim-imm defense lawyers has grown increasingly important over the years with the criminalization of immigrants and the concomitant merger of criminal and immigration law.  This can be seen as immigration law and criminal law overlap, immigration and criminal enforcement are to an increasing extent done jointly and cooperatively, and the procedural aspects of prosecuting immigration violations have taken on many of the earmarks of criminal procedure.[1]  The federal government in partnership with state and local authorities has institutionalized prioritization of noncitizens with criminal convictions for deportation. Criminal defense attorneys – at times, with little to no knowledge of their client’s immigration status or the impact on that status of a particular plea – advise their clients on whether to plead guilty and what crime to plead to in plea negotiations.  State criminal courts in effect have become deportation courts, while immigrants are prosecuted in federal court for relatively minor immigration violations such as crossing the border outside an established checkpoint.

Although high rates of immigration are associated with lower rates of violent crime and property crime, regardless of country of origin, education level, and documented or undocumented status,[2] current policies place “criminal aliens” at the center of American immigration enforcement.  Under current laws and enforcement policies, noncitizens with relatively minor criminal history are being deported in record numbers.  The US Supreme Court has recognized that a broader swath of the immigrant population is susceptible to prosecution, and vulnerable to deportation:  “While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences.”[3]  The Court describes deportability as “virtually inevitable” for an ever-growing number of noncitizens convicted of crimes, and “as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”

The varying roles of the crim-imm practitioner

Assisting criminal defense attorneys to investigate an individual’s criminal and immigration history in the interest of achieving an immigration-safe plea

Criminal defense attorneys often seek advice from lawyers with expertise in analyzing the immigration consequences of criminal convictions.  A classic illustration of the difference pre-plea advice can make is the following:  Teenagers bent on joyriding decide to “borrow” the neighbor’s brand new car. Theft with intent to permanently deprive the owner is a “crime involving moral turpitude,” and if a sentence of a year is imposed the conviction constitutes an “aggravated felony” – both of these outcomes could have serious immigration consequences.   The criminal defense attorney would want to inquire about citizenship/immigration status, and to advise about immigration consequences of plea and sentencing alternatives.  In the pre-plea context, the role of a crim-imm expert is to advise the criminal defense attorney during plea negotiations with the objective of reaching an agreement as to an “immigration safe” plea.

Representing a noncitizen charged with inadmissibility or removability, and/or facing benefit denial, based on convictions or allegations of criminal conduct

The area of crim-imm law practice that perhaps is most familiar to people unfolds in the immigration courts, at the ports of entry, before the administrative appellate bodies, and before USCIS.  A typical legal problem one might encounter is whether and how a criminal conviction impacts a noncitizen’s right to remain in the United States. The issues that arise in this area are often extremely complicated, and their resolution can requires extensive research.  The field also includes making applications for waivers and raising other defenses to crime-based inadmissibility, removability and ineligibility.

Representing a noncitizen in, or facing, immigration detention

Representing a noncitizen in a bond hearing can involve crim-imm issues, and often is legally complex.  The stakes are high, the stress is palpable, and in many cases the detainee has landed in detention without advance warning or prior legal assistance.  Successfully representing a client in a bond case not only means helping the client to get back to family, job and community, but also makes possible a fair shot at raising an effective defense to removal.  The likelihood of success in removal proceedings goes up exponentially in non-detained cases.

Seeking post-conviction relief to eliminate immigration consequences

Post-conviction relief should be considered by a noncitizen with a conviction or convictions that subject him or her to inadmissibility or removability, or create ineligibility for immigration benefits.  This involves an investigation of whether the noncitizen is eligible to vacate the conviction in criminal court thereby improving chances of remaining in the United States. If, for example, a conviction is unlawful as a result of the defendant’s criminal defense attorney failing to advise of a conviction’s immigration consequences, a motion to vacate may be filed in the court where the conviction was entered.

SGG lawyers are well versed in the immigration consequences of criminal convictions, and in the intersection of criminal and immigration law.

[1] See Julie A. Dowling & Jonathan Xavier Inda, Governing Immigration Through Crime: A Reader, Stanford University Press, March 27, 2013.

[2] See Walter A. Ewing, Ph.D., Daniel E. Martínez, Ph.D., & Rubén G. Rumbaut, Ph.D., The Criminalization of Immigration in the United States Special Report, American Immigration Council  (July 2015).

[3] Padilla v. Kentucky, 559 US 356 (2010).