Last Updated: 11.05.2020
At the Law Office of Eldridge, Nachtman & Crandell, LLC, many of our cases involve non-citizen clients with criminal matters in the Maryland state courts. Some of our non-citizen clients are facing pending criminal charges, while many others have already pled guilty or been convicted of an offense that is causing them to suffer adverse immigration consequences. In either scenario, our criminal defense attorneys and immigration attorneys work in tandem to provide representation that considers the client’s whole matter. For us, there isn’t only the criminal case or only the immigration case; rather, it is all one case with consequences and considerations that often reach far beyond the final disposition of the criminal charges in the Maryland state courts.
To be sure, representing and advising non-citizen criminal defense clients is a complicated endeavor that often involves complex statutory interpretation, knowledge, and understanding of current precedent cases in the immigration courts, and an understanding of the client’s immigration, family, and criminal backgrounds. Notwithstanding these complexities, at Eldridge, Nachtman & Crandell, we have observed five common mistakes that criminal defense practitioners often make when representing their non-citizen clients in criminal proceedings:
- Not understanding the difference between clients with immigration status and without immigration status
It should go without saying that the term “non-citizen” does not automatically imply that your client is “undocumented.” In fact, only about 27% of Maryland’s estimated immigrant population is undocumented. The other 73% are comprised of, for example, lawful permanent residents (“LPRs” or “green card” holders), refugees and asylees, DACA recipients, holders of Temporary Protected Status (TPS), or individuals on various types of student or work-related visas. For these folks, a conviction in a criminal case can have devastating consequences which could lead to a loss of their immigration status and removal (i.e., “deportation) from the United States.
On the other hand, a client who is undocumented is already removable from the United States simply on the basis that he or she is here without status. And especially under the country’s current hyper-strict immigration enforcement policies, mere contact with the criminal justice system will often be enough to trigger removal proceedings. However, this does not mean that the criminal defense attorney’s job in defending that client is any easier! In fact, a multitude of extra considerations come into play, chief among them, whether the client can maintain eligibility for release on bond in the removal case and whether he or she will be eligible for any form of relief from removal in the Immigration Court (i.e., what application or applications can they make to try to stay in the United States).
Understanding the fundamental difference between clients with and without immigration status is an important first-step for criminal defense practitioners and can go a long way in helping understand how best to defend the client in the criminal case.
- Removability vs. inadmissibility: two sides of (kinda) the same coin
There are essentially two distinct sets of laws in the immigration act that impact non-citizen criminal defense clients – those that govern removability from the United States (i.e., deportable offenses) and those that govern admissibility to the United States. More simply, one set of laws (removability) applies generally to individuals who have (or had) valid immigration status in the United States and are charged with or convicted of an offense for which they can lose their status and be deported. The other set of laws (admissibility) applies generally to individuals who are applying for some form of immigration status, most commonly a green card. And in the infinite wisdom of the United States Congress, the types of criminal offenses that can make someone removable from the country do not always match the types of criminal offenses that can make someone inadmissible to the country.
It should be clear that the issue of removability versus inadmissibility is very closely tied to the issue discussed above regarding the non-citizen client’s actual immigration status. In sum, the client’s posture within the immigration system will most often dictate what, if any, adverse immigration consequences will follow from the outcome of the criminal charges that he or she is facing, and simply “avoiding deportation” is not the only objective of the criminal defense attorney.
- The Great 364-Day Fallacy
Perhaps the most common, well-worn misconception of all among criminal defense practitioners is the Great 364-Day Fallacy, i.e., the old “Your Honor, if we could keep the sentence less than a year, then my client won’t face deportation.” In reviewing a transcript for a post-conviction petition, discovering this line may cause the post-conviction attorney to display sudden, uncontrollable symptoms of euphoria.
To be sure, in some cases, a sentence of less than one year may help avoid adverse immigration consequences. But in the vast majority of cases – including all types of CDS-related cases – simply keeping the sentence to under one year will not cause the ICE agents waiting outside the courtroom to turn tail and retreat.
- A PBJ is a conviction, expungements do not necessarily help, and no one in the immigration system cares whether Maryland classifies an offense as a misdemeanor of a felony
For many people facing criminal charges in Maryland, a probation before judgment (PBJ) is a wonderful disposition that the State of Maryland does not consider to be a conviction. However, under the definition of a “conviction” that governs on the immigration side, A PBJ IS A CONVICTION. It just is.
Also of note, a conviction is still a conviction for immigration purposes even after it has been expunged. In fact, an expungement may hinder a non-citizen’s ability to apply for certain immigration benefits where he or she has the burden of establishing eligibility and proving the disposition of prior criminal charges. If a non-citizen client needs to have a conviction expunged for employment, school, or other reasons, it is vitally important to obtain certified copies of the underlying disposition prior to expungement and to keep and maintain all criminal case-related documentation.
Lastly, in general, the immigration system follows the Federal definitions concerning which crimes are considered felonies and which are classified as misdemeanors. How Maryland – or any other state – chooses to classify its criminal offenses simply does not matter.
- Bring in the expert
It is cliché to say in the legal world, but it is absolutely a fact that every case is different. There is no list, no cheat-sheet, no single immigration law primer, or book, or chart for the criminal defense practitioner to consult when representing a non-citizen client. The immigration law is comprised of an incredibly dense and complex legal landscape that includes statutes, regulations, policy memoranda, as well as administrative and Federal Appeals Court precedent decisions. And the law is constantly evolving – sometimes daily, it seems, under the current administration. Beyond an up-to-date understanding of the law, knowledge of a non-citizen client’s immigration history (What is his or her current immigration status? When did he or she enter the United States? In what status did he or she enter? What, if any, immigration benefit applications has he or she filed in the past?), family history (Does he or she have family members with immigration status? If so, what status, and how did they obtain that status?), and criminal history (Any priors?) are vitally important in determining how best to represent the client in the criminal case that he or she is now facing. Moreover, in Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court made it part of the criminal defense counsel’s Constitutional duty to advise non-citizen clients of the immigration consequences of their criminal case.
The safest and easiest way to ensure that a non-citizen client is receiving the best possible representation in his or her criminal matter is to simply refer the client for a consultation with a knowledgeable immigration attorney. At Eldridge, Nachtman & Crandell, our non-citizen clients understand that part of their legal fee includes consultation with and access to an immigration practitioner who can provide complete advice concerning the possible immigration consequences of the criminal charges that the client is facing. We provide the same, in-depth immigration advice and analysis to other criminal defense practitioners around Maryland who understand the complexities of the immigration law and want to provide the best possible defense for their non-citizen clients.
If you find yourself charged with a crime or you are an attorney representing a non-citizen client in a criminal defense matter, contact us for a consultation!