Steven A. Goldstein
The Supreme Court of the United States in their recent decision, Padilla v. Kentucky, 130 S. Ct. 1473 (2010), held that a lawyer representing a non-citizen client for charged criminal activity, must advise their client if a plea to the charge may make them deportable. The Court went a step further and held that if, in fact, the plea would certainly subject their client to deportation, it is required that the lawyer advise their client that the plea they are about to accept “will” trigger deportation from the United States. This decision creates a duty among criminal defense practitioners to either advise their clients in immigration law or seek an opinion from an experienced, competent immigration lawyer in order to properly advise their clients on the immigration consequences of a plea.
Under Section 101(a)(48) of the Immigration and Nationality Act, a “conviction” is defined as a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. Simply stated, a withhold of adjudication is treated as a conviction for immigration purposes. Like withhold of adjudication, expungements, sealed convictions, or any conviction dismissed pursuant to a post-conviction rehabilitative statute remains a conviction for immigration purposes. Pre-trial diversion programs where the alien does not have to admit guilt and where the case is ultimately dismissed does not constitute a conviction for immigration purposes. Where a juvenile is in juvenile court and is adjudicated delinquent and not actually convicted of the offense are not convictions for immigration purposes.
Generally, the most common immigration violation is that of a conviction for a “crime involving moral turpitude”. Incredibly, crimes involving moral turpitude (“CIMT”) are not defined by statute. Rather, they are determined on a case by case basis and by case law. The case law says that CIMT’s are generally acts that are inherently evil, debase and vile and wrong by any society’s standards and those offenses that violate man’s duty to man. Some examples of CIMT’s are violent crimes, thefts, fraud crimes and sex crimes. It is important to note that regulatory crimes are generally not CIMT’s.
There is another category of deportable crimes known as “aggravated felonies”. Aggravated felonies are defined and can be found in Section 101(a)(43)(A)-(U) of the Immigration and Nationality Act. Aggravated felonies are considered more serious than CIMT’s because, for the most part, there are no waivers for aggravated felonies where the conviction occurred after April 24, 1996.
Immigration law is in a constant state of flux as decisions from the Board of Immigration Appeals and the individual Circuit Courts of Appeal Criminal create new and revised case law almost weekly. Criminal defense attorneys are urged to consult with an immigration lawyer before advising their client on the immigration consequences of a plea before allowing their client to make a decision on the plea offer. This is mandated from the Supreme Court decision in Padilla.