[author: Norton Tooby]
The following is a guest blog post by Norton Tooby, who has a national law practice in Oakland, California, providing expert consultation and representation on immigration consequences of criminal convictions, post-conviction relief, and criminal defense of noncitizens.
The Supreme Court has focused attention on the need to advise clients accurately on the specific immigration consequences of a guilty plea. Padilla v Kentucky (2010) 130 SCt 1473. But it’s also essential that defense counsel accurately advise clients about the sentencing consequences of his or her immigration status. Counsel must also do whatever is possible to prevent a defendant’s immigration status from destroying his or her opportunities for the alternatives to incarceration used in most criminal cases that result in sentences.
Here are six steps to help ensure that immigrant defendants actually get released to enjoy the benefits of work furlough, school furlough, anger management classes, drug and alcohol dependency programs, probation, parole, and all the other sentence elements that depend on the client actually walking out the door into freedom.
Determine the client’s exact immigration status. Roughly 25% of California residents were born in a foreign country. California lawyers who handle a significant number of criminal cases will inevitably have many noncitizen clients. The client’s immigration status will determine the immigration effects of a criminal disposition, which in turn will affect whether the client may be held in mandatory Immigration and Customs Enforcement (ICE) detention after release from the criminal custodial sentence. The client who remains in ICE custody can’t participate in non-custodial sentence programs, and the value of counsel’s sentence work is destroyed.
Obtain the client’s early release from criminal custody. If the client is released early enough, the client may avoid an immigration hold that would prevent release to any non-custodial sentence alternatives.
Determine whether the TRUST Act prevents the jail from complying with an ICE hold. California law now prohibits local jailors from honoring immigration detainers in many lower-level criminal cases. Govt C §§7282, 7282.5. Even if this Act doesn’t apply, the county has the discretion to decide whether or not to hold an immigrant defendant in immigration custody after criminal custody expires.
Check local practice on whether the jail informs ICE to arrest the client as he or she walks out the door. Preventing an ICE hold from being lodged or enforced doesn’t necessarily protect the client against ICE arrest. Even in cases or counties where the jail doesn’t detain defendants under ICE holds after their release from criminal custody, some jails call ICE to inform them when the client will be released, and ICE can arrest them on removal charges then or later. This is why it’s essential to make sure the substance of the criminal disposition protects the client against mandatory immigration detention. That way, even if ICE does arrest the client, the client would be released from immigration custody and could participate in the post-custodial sentence counsel has arranged.
Conduct research and consultation to identify an immigration-neutral criminal disposition. Counsel can use the many valuable practice manuals and other research aids to work this through themselves. In addition, active consultation with experts on the overlap between criminal and immigration law can assist counsel in navigating this difficult terrain. This important step can help the client avoid mandatory immigration detention, in which even the immigration judge presiding over removal proceedings lacks the power to release the immigrant from ICE custody.
Mobilize all resources to obtain a disposition that doesn’t trigger mandatory ICE detention. For example, a letter or declaration from immigration counsel can show court and prosecution the full scope of the immigration and criminal disaster that would be avoided by an immigration-neutral disposition. Counsel can gather and present evidence of the harm to innocent family members and use the immigration pressure as an argument that the client will surely comply with the sentence requirements now that he or she is aware of the immigration catastrophe that would follow a violation.
Following these steps will also protect the client against adverse immigration consequences of the criminal case.
The problem with focusing only on immigration advice for criminal defendants, as Padilla requires, is that mere accurate advice doesn’t in itself protect the client. It’s not enough to tell the client, “The axe is coming down on your neck.” Effective counsel must try to stop the axe. This means not only the immigration axe of deportation or other adverse immigration consequences, but also the criminal axe of sabotaging all non-custodial sentences in the many cases in which the criminal disposition results in mandatory immigration detention.
For more on the overlap of criminal and immigration law, check out CEB’s new California Criminal Defense of Immigrants. For information on preventing immigration damage caused by prior convictions, see the companion volume, Tooby’s California Post-Conviction Relief for Immigrants, available from CEB. And learn the essential steps for protecting a client’s immigration status from Norton Tooby in CEB’s program Criminal Defense of Immigrants, available On Demand.
© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.