Thursday, October 1, 2015

Career Track Series*: Crimmigration - Ethical Obligations of this Practice Trend

By Erica L. Morris
Law Career Development Graduate Fellow

Crimmigration Or Crimmigation - Ethical Obligations to Know What It Is

Crimmigration is a word coined by legal scholars, and it describes the commingled consequences and practice demands of two important areas of law: criminal and immigration. Crimmigration is more than just knowing these two distinct practices, it is understanding "'...how they intersect. That is a crimmigation lawyer.'" (Steven Crighton, "'Crimmigation' Law Practice Niche on the Rise," San Francisco Daily Journal, Vol. 121 No. 180, published 09/17/15, quoting Cesar C.G. Hernandez, a law professor at University of Denver Sturm Collge of Law.")**

Crimmigration may also be described as "crimmigation" (as seen in Mr. Crighton's article), but from my findings, the former is the most commonly used term.


The Significance Of Crimmigration

In 1986, the Immigration and Naturalization Services (INS) removed 1,978 immigrants for criminal convictions. That number rose and kept rising over the past decades. INS removed 36,909 immigrants in 1996 and removed 240,000 immigrants in 2013 for the same reasons. (Crighton.) During the Obama Administration, where the President has vowed "to deport only criminals and repeat immigration violators," the numbers grew at a still startling rate. According to Migration Policy Institute,
95 percent of the immigrants deported from 2009 to 2013 met Mr. Obama’s stated national security priorities for deportations, meaning only about 77,000 of the 1.6 million illegal immigrants removed by U.S. Immigration and Customs Enforcement (ICE) over the last five years were rank-and-file border-crossers with clean records.

Thus, the impact that a criminal conviction has on an immigrant is significant and it affects nearly every single immigrant charged with a crime.


Criminal Defenders Risk Mal Practice If They Are Not Competent In Crimmigration Practice

Criminal defense attorneys have not always understood the legal ramifications a guilty plea has on an immigration, and immigrants have been shocked with the realities of such consequences time and time again after pleading guilty to a crime. Crighton's article describes on such instance when "one Mexican immigrant came to the shocking realization that the plea deal he accepted would result in the revocation of his green card." This particular immigrant had lived in the United States for 30 years with a clean record, and his attorney did not "advise him of the effects the deal could have on his immigration status." (Crighton.)


Some immigrants victim to this non-disclosure have fought back in the courts. And the courts listened. California was among the first of the States to develop case law on the matter. In People v. Soriano, 194 Cal. App. 3d 1470 (1987), Soriano sought to withdraw his guilty plea in a habeas corpus action and the court ruled in his favor because he "was denied effective assistance of counsel in entering his guilty plea by counsel's failure to adequately advise of immigration consequences of plea, warranting habeas relief."

While California was at the forefront of supporting the basic rights of immigrants accused of crimes, it took the country nearly three more decades before the 9th Circuit established clearly that "defense attorneys who do not clearly inform clients that a plea bargain will result in a deportation are providing ineffective counsel." (Crighton.) United States v. Elizabeth Rodriguez-Vega, 797 F.3d 781 (9th Cir. 2015) is this landmark case. However, there are several other keynote cases such as "Padilla v. Kentucky, [that could] stand as a landmark in the Supreme Court’s right to counsel jurisprudence, right up there with Gideon v. Wainwright."

These cases will carry great weight for defense attorneys as they advise future immigrant clients of whether or not to plead guilty. Defense attorneys also will need to become familiar with how to go about drafting the details of a plea in order to avoid potential deportation for their clients. Otherwise, if defense attorneys do not take caution and adhere to Rodriguez-Vega in advising immigrant clients of the dangers of a guilty plea in regards to their immigration status, then these attorneys may face malpractice suits. Their cases will be overturned for ineffective assistance of counsel, and the prosecution's case will have to begin again. Therefore, being competent in crimmigration law is the only way for a defense attorney to escape such troublesome consequences.

The Growing Trend

The blending of criminal and immigration law may be thought of as a trend of the past - it has existed for several decades. The U.S. government hit criminally convicted immigrants hard starting in the mid-1980's as part of the war on drugs. This section of history was a critical point in which competency in crimmigration became a necessity. However, with recent attention brought by the Ninth Circuit and outspoken attorneys concerned about immigrants' rights, the crimmigration niche is growing in popularity and importance. As the article below indicates, demand for crimmigration assistance also has followed heightening criminalization and punitive response toward migrants.
First, there is the expanded number of crimes that can lead to immigration problems. Second, there is the increasing amount of migration-related activity that can and does lead to criminal prosecution. And third, there are unique or uniquely harsh methods of regulating the lives of migrants that can not realistically be described as criminal law enforcement or civil immigration law enforcement techniques as we’ve traditionally understood those categories.
Some also theorize that crimmigration demand is growing because the government's "reliance on the criminal justice system to regulate migration continues" to grow. (Crighton, quotation marks omitted.)

Whatever the root cause for the demand for crimmigration services, "roughly 95% of convictions these days result from pleas, not trials, [so] we’re left with a picture in which the most important advocate for a migrant is often not the attorney who appears before an immigration judge, but the attorney who appears before a state criminal court judge." Thus, in order to preserve the rights of immigrants charged with crimes, criminal defense attorneys must take on the additional responsibility of ensuring that these defendants are properly educated of their liberties and how a potential guilty plea or verdict could impact their lives. And, it is not a choice nowadays, it is an ethical responsibility thrust upon defense attorneys that likely will extend to a constitutional one if ever the Supreme Court takes this issue into its own hands.

The Battle of Costs Has Already Begun

It is the opinion of some attorneys is that "since it is the government that requires an immigrant should be notified of any effects a plea would have on their immigration status, it is their responsibility to cover whatever costs necessary to ensure that they receive consultation on any potential criminal or immigration ramifications." (Crighton.)

These sources indicate that crimmigration is not only a growing field, but it is becoming so essential that the battle of who should bear the burden of the costs is already ensuing. Should the burden of costs fall on the government? The immigrants? Good-willed attorneys? Or the public?

The Impact is Real

No matter the reason, it is common knowledge that the U.S. immigration system is flawed and has impacted thousands of immigrant families. This intersection between criminal law and the immigration system contributes to the difficulties these families continue to face going forward. The basic rights of immigrants are at stake. This is why the legal community should care. And it is the legal community's duty to ensure that these rights are protected in an effective, consistent manner.

In the end, it is immigrants who suffer the most severe of consequences if they are uninformed and ill-advised during a criminal proceeding. The impact is very real and affects the personal lives of thousands of individuals across our nation every year. In the worst case scenario these individuals will be deported. They may be forced to live in a country they do not want to reside in, and they may lose access to their families, friends, jobs, and livelihoods because of it.

However, these devastating results may be easily avoided by simply discussing these potential outcomes with a criminal defendant prior to entering a guilty plea. As Rodriguez-Vera discusses, there may be alternative avenues a plea-bargain may take that will not result in or even risk deporting an immigrant so long as it is not done blindly. Criminal defense attorneys have the duty to be informed of these alternatives and help keep their clients from suffering unjustly for crimes that do not deserve to be repaid by stripping them of their immigration status and their entire lives.

*The Career Tracks Series provides information on accessing common legal employment tracks. Keep a look out for new installments on this series. If you would like us to focus on a specific career track for a future installment, contact Law Career Development
**Hard copies of Steven Crighton's article are available in the Law Career Development office.