Day 192: Crimmigration

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I got a call today from a former Immigration Law Clinic student who now works as a state public defender. Her colleague’s client has been offered a plea bargain and the prosecutor wants the client to enter a plea tomorrow. Fortunately, the former student knew that the client, a noncitizen, could face removal based on certain types of criminal convictions, and she and her colleague reached out to me.

Although the client would plead to misdemeanor instead of felony charges, that definitely doesn’t mean he couldn’t be removed. “Crimmigration” — analyzing the immigration consequences of criminal convictions — is one of the most complex and technical areas of immigration law (and that’s saying a lot). The law sets up hundreds of traps for the unwary.

While I was able to immediately point out a couple of red flags they could probably avoid (such as negotiating a proposed sentence down from 365 to 364 days to avoid triggering aggravated felony grounds of removal), I emphasized that a competent analysis would require more than an afternoon.

I encouraged the attorney to bargain for additional time to advise his client. The prosecutor (and ultimately the court) should agree to it, because the Supreme Court, in a case called Padilla v. Kentucky, held that the Constitution guarantees a right to competent advice on the immigration consequences of a conviction. If defense counsel doesn’t get adequate time to do that analysis (or to hire a consulting immigration attorney to do it), the conviction would be invalid under the Constitution anyway.

Fortunately, the attorney thought the prosecutor would agree to give him time. I provided them with a few names of attorneys who might be able to do the case on short notice.

Immigration Law Clinic students will be trained on crimmigration analysis this semester. The former student who called me plans to engage with immigration lawyers more regularly so that she can spot these issues and help train her colleagues to do so. I’m excited about that, since West Virginia badly needs more criminal defense attorneys who know how to spot basic crimmigration issues. One of our goals in the Immigration Law Clinic is to be a resource to point those attorneys in the right direction.