Defending the Non-Citizen Client
Our law office frequently represents clients who are not citizens of the United States. Some of our clients were born abroad, yet have lived in the United States since they were small, and consider this their home. Others immigrated to the United States as students, or came legally to this country on professional or work visas. Some clients have applications pending for Naturalization, and others have a green card. Still others are undocumented aliens, yet have contributed to the economy and have paid taxes and supported their families for many years.
The one thing that all these people have in common is that they are facing a criminal charge of some kind, and their ability to remain in the United States is placed in jeopardy as a result. During the three decades in which I have practiced law, I have seen an increasingly harsh attitude on the part of our government toward non-citizens who run afoul of our laws. It has never been easy to immigrate to the United States, but at the present time we are seeing a very harsh legal climate confronting the non-citizen.
Even though criminal defense attorneys are not normally specialists in the complexities of our country’s immigration laws, it is incumbent on criminal defense counsel to be aware of the myriad ways in which a criminal charge can place in jeopardy the client’s desire to remain in this country.
In the groundbreaking case of Padilla v. Kentucky, decided in 2010, the United States Supreme Court considered a situation in which a 40-year lawful permanent resident of the United States faced deportation arising from a conviction for drug distribution charges. Mr. Padilla had been instructed by his defense attorney not to worry about being deported as a result of his criminal prosecution, because he had resided lawfully in the United States for such an extended period of time. Unfortunately, for Mr. Padilla, it turned out that his defense attorney was incorrect, and the government commenced a deportation action as a result of his criminal conviction. Mr. Padilla took his case all the way to the United States Supreme Court, contending that he did not receive effective assistance of counsel, arising from his attorney’s failure to warn him concerning the immigration consequences of his prosecution. The Supreme Court agreed with Mr. Padilla, and held that criminal defense counsel cannot be oblivious to the immigration consequences of a criminal prosecution.
The teaching of the Padilla case is clear: even though criminal defense counsel may not be an expert on immigration law, it behooves defense counsel to alert to the immigration consequences that may arise as a result of criminal prosecution. It has long been a standard practice of our law office, many years before Padilla, to consult with immigration counsel and acquire guidance as to how our client’s pending criminal charge can adversely impact the client’s immigration situation. In some cases, we have found that the potential immigration jeopardy facing the client can actually be leveraged in the client’s favor, resulting in a successful outcome for the client.