Collateral Consequences for Non-Citizen Defendants: When a Criminal Conviction Results in the Loss of All That Makes Life Worth Living

Criminal Law Practitioner Volume 2 Issue 2 Article 8 2015 Collateral Consequences for Non-Citizen Defendants: When a Criminal Conviction Results in the Loss of All That Makes Life Worth Living Sara Elizabeth Dill Law Offices of Sara Elizabeth Dill Follow this and additional works at: https://digitalcommons.wcl.american.edu/clp Part of the Criminal Law Commons, and the Immigration Law Commons Recommended Citation Dill, Sara Elizabeth (2015) "Collateral Consequences for Non-Citizen Defendants: When a Criminal Conviction Results in the Loss of All That Makes Life Worth Living," Criminal Law Practitioner: Vol. 2 : Iss. 2 , Article 8. Available at: https://digitalcommons.wcl.american.edu/clp/vol2/iss2/8 This Article is brought to you for free and open access by Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Criminal Law Practitioner by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact . Dill: Collateral Consequences for Non-Citizen Defendants: When a Crimin Criminal Law Practitioner COLLATERAL CONSEQUENCES FOR NON-CITIZEN DEFENDANTS: WHEN A CRIMINAL CONVICTION RESULTS IN THE LOSS OF ALL THAT MAKES LIFE WORTH LIVING by Sara ElizabethDill of time. The system has become unforgiving, resulting in even first time offenders facing This article seeks to provide a brief consequences for the rest of their lives. In the overview of the most common immigration last two decades, following harsh changes to consequences of criminal convictions and immigration law, non-citizens facing criminal strategies for practitioners representing noncharges created a new wrinkle in the system, citizen defendants.While not every immigration one that in 2oo the United States Supreme consequence is examined, nor is a complete and Court recognized was an important and in-depth analysis provided, this article should necessary part of the criminal justice process. provide practitioners with a general overviewand I For most non-citizens, a criminal conviction starting point for ensuring that defendants are results in deportation, banishment from a properly advised pursuant to the Constitutional country that many have spent a majority requirements set forth in Padilla c. Kentucky. of their life in, and in the words of the Supreme Court, "loss of both property and ABSTRACT life, or of all that makes life worth living."2 I. INTRODUCTION Modern American society has seen an exponential growth in the number of crimes a person can commit. Previously, violations considered to only be actionable in the civil context have now become criminal offenses, frequently at the felony level. Criminal sentencing has expanded to include a wide range of punishments. The most common is prison time, with a recent expansion to include drug treatment or other punitive sanctions. However, beyond what may be imposed by a criminal court judge upon pronouncement of sentence, state and federal legislatures have enacted additional penalties, not described at sentencing, that are often a direct and automatic result of a criminal conviction. II. PADILLA v. KENTUCKY: NEW RESPONSIBILITIES FOR PROSECUTORS AND DEFENSE ATTORNEYS Immigration law, as it applies to noncitizens, is complex and often unforgiving. Even more problematic is that few attorneys in the criminal justice system have the knowledge of immigration law to effectively advise their clients. The lack of appointed counsel in detained immigration cases further exacerbates the problem, especially in those cases where an individual has pending cases before the criminal and immigration courts at the same time. Many of these penalties are permanent and do not allow for exceptions or their elimination after a passage 1 (2010). See generally Padilla v. Kentucky, 559 U.S. 356 2 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). Published by Digital Commons @ American University Washington College of Law, 2014 Summer 2015 Washington College of Law 1 a Criminal Law Practitioner, Vol. 2 [2014], Iss. 2, Art. 8 Criminal Law Practitioner In Padilla v. Kentucky, the United States a defendant's decision whether to plead guilty or go to trial. For example, "[preserving the client's right to remain in the United States Supreme Court held that criminal defense attorneys for non-citizen defendants have an affirmative duty under the Sixth Amendment may be more important . . . than any potential to provide competent advice regarding the jail sentence." 6 Additionally, deportation immigration consequences of a plea. I The proceedings "practically . . . are [criminal] Court acknowledged that deportation is a for they extend the criminal process of "particularly severe penalty" that is "intimately sentencing to include on the same convictions related" to the criminal process; therefore, as additional punishment,"7 and "deportation is advice regarding deportation and immigration a drastic measure and at times the equivalent consequences of conviction fall within the ambit of the Sixth Amendment right to effective assistance of counsel.4 Unfortunately, many individuals in the criminal justice system do not have access to learned counsel and are unable to navigate the two systems on their own. This is further hampered by the fact that there is no statutory right to appointed counsel in the immigration courts, even when an individual is detained pending his or her merits hearing. Defense attorneys, whether privately retained or court appointed, must ensure that the advice given to clients includes a full consideration of the immigration consequences of a conviction. Prosecutors must also consider these consequences, presented as mitigating evidence in support of proposed plea offers or sentences. One notable authority on the matter, and a former prosecutor, stated it best "[h]owever 'justice' might be defined by a prosecutor, the Supreme Court's recognition of the importance of collateral consequences to ajust resolution of a matter should influence a prosecutor's views."5 Courts repeatedly acknowledge the unique role that immigration penalties play in 3 See Padilla, 559 U.S. at 388. Id at 365. 4 Robert M.A. Johnson, A Prosecutor s Expanded 5 Responsibilities Under Padilla,31 St. Louis U.Pub. L. Rev. 129, 136 (2011). https://digitalcommons.wcl.american.edu/clp/vol2/iss2/8 72 Washington College of Law Summier 2015 of banishment or exile."' "Everyone knows that to be forcibly taken away from their home, their family and friends, their business, their property, and sent across the ocean to a distant land, is punishment. Oftentimes, that is most severe and cruel."9 It is through this lens that defense counsel must proceed in any criminal case involving a non-citizen defendant. 'o III. UNDERSTANDING THE IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS Immigration law is complex, confusing, and fact-specific. Even two individuals with seemingly sim (...truncated)