By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Immigration is such a major topic in criminal defense the topic has been given it’s own name: Crimmigration.
Criminal defense lawyers have a non-delegable duty to advise their clients about immigration consequences. The point was made clear in the landmark US Supreme Court case Padilla vs. Kentucky, 559 US 356 (2010). Padilla holds it is ineffective assistance of counsel for a lawyer handling a criminal case not to advise a client about the immigration consequences and dangers which come with the criminal case. This is because erroneous advice – or not giving advice at all – can lead to a client’s deportation, removal or ineligibility to renew immigration status. It is not enough for a criminal defense lawyer to tell their client, “your immigration issue is not my problem – I’m just handling your criminal charges.”
I’ve blogged before on the complexity of immigration issues in the criminal context and you can read it here.
Being Aware of Immigration Tripwires in Criminal Cases
Immigration law is it’s own completely different practice of law from criminal law. I explain to clients that me giving immigration advice in many ways is like a foot doctor giving advice about your shoulders. Nonetheless, Padilla and the cases which have followed require criminal lawyers to educate themselves in immigration law enough to effectively advise clients about what can and can’t happen because of things like guilty pleas, conditional dismissals, or specific sentences.
Some immigration rules require detailed analysis about facts and issues which are easy for a criminal lawyer to over-look.
For instance, immigration courts have different classifications for drug possession than Texas criminal courts. The Texas criminal courts have their own scales for charging drug possession cases which don’t necessarily correlate to the federal court’s or immigration court standards. Many Texas criminal lawyers may just skim the amount ultimately weighed just to make sure it comports with Texas law – but the lawyer must also beware the tripwire of the immigration consequences if applicable too.
Being Extremely Cautious in Decisions Which Affect Immigration
I tend to be extremely cautious when dealing with immigration issues and complications. It’s because immigration has been and will probably always will be a white-hot legislative topics in the federal government. Just because the law says pleading guilty offense x in 2021 is fine doesn’t mean the laws can’t change in 2026 and take a completely different view of what we did 5 years before.
What Happens When My Lawyer Gives Me Bad Immigration Advice?
It’s common for our office to get phone calls when someone has taken a plea deal of some sort and then they get detained, removed, or are not allowed to renew their citizenship status. It’s often the first time the client had any inkling there would be a collateral immigration problem connected with their criminal case.
When a lawyer doesn’t give immigration advice either because it scares them or they just didn’t spot the issue at all – or if a lawyer gives bad immigration advice it can be “ineffective assistance of counsel.” Ineffective assistance of counsel in an immigration setting means the lawyer didn’t give proper advice and as a result – the client’s decision was rendered “involuntary.” An involuntary decision – usually to plead guilty or no contest – is nullified in the event there was ineffective assistance.
Ineffective assistance of counsel can be addressed through different legal mechanisms such as a “Motion for New Trial” or a “Writ of Habeas Corpus.”
Ask Your Lawyer About Immigration Consequences
If you have any questions in a criminal case setting about immigration consequences – ask your lawyer. It’s your criminal defense lawyer’s job to properly advise you about immigration consequences. Often times it may take a joint session between criminal and immigration lawyers working together to make sure the client fully understands.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.