District judge explains immigration consequences of a criminal conviction

By Roberta M. Gubbins Legal News "John Smith comes into your office, he had been at a party, got into an argument, hit his girlfriend, drove away. When he comes home the police arrest him. He is drunk, his license is suspended and the police find a bag of marijuana in his car. What are you looking for when you talk to the prosecutor?" asked Kent County 62B District Court Judge William G. Kelly, beginning his discussion on the immigration consequences of a criminal conviction for the members of the Criminal Law Section at the State Bar of Michigan last month. Answers varied from careless driving to impaired, and deferred sentences where possible or plead to two or three and get the rest dismissed. Kelly then added the fact that the defendant was from Nova Scotia and in the United States with a green card. "Does that change things? Yes, it does." "One of the questions to be asked when a potential client comes in should be 'Are you a U.S. citizen?'" said Kelly. "What advice should you give to a non-U.S. citizen?" Kelly noted that in People v Davidovich 463 Mich 446 (2000), "the court ruled that Immigration consequences of a plea are collateral matters that do not bear on whether the defendant's plea was knowing and voluntary and the plea could not be withdrawn. For the same reason, a failure by counsel to give immigration advice does not render the lawyer's representation constitutionally ineffective." This was the situation until Padilla v Kentucky No. 08-651, decided on March 30, 2010. The defendant had been a lawful permanent resident for 40 years; pled guilty to drug distribution charges. His attorney advised him not to worry about deportation because he had lived in the U.S. for so long. The result was mandatory deportation and ineffective assistance of counsel. Ohio and 17 other states require that the judge advise the defendant of the possible consequences of a plea if not a U.S. citizen. Conviction of a crime can result in deportation, exclusion from admission to the United States or denial of naturalization. According to immigration law, a U.S. citizen is a person born in the United States, a person born to a U.S. Citizen, or a person naturalized as a citizen. An alien can be an un-documented or a documented alien who have visas and can be deported. A national is a person owing permanent allegiance to the U.S., even though not a citizen. A visa allows one to travel in the United States for a specific purpose such as to go to school. Aliens admitted into the United States fall into one of two categories--non-immigrants who wish to enter for a limited period and purpose or immigrants who want to become lawful permanent residents (LPRs) allowed to live permanently in the United States and have a "green card." Kelly explained the sanctions available under immigration law. "Removal or deportation is forced removal from the United States and prevents legally returning for five years. Exclusion may be based crimes committed in U.S. or abroad and may not require deportation but will bar re-entry. Those who are not deemed 'of good moral character' can be denied naturalization, which means they can live in the U.S. but can't be a citizen. Kelly made note of some points to remember. First, a disposition that is not a "conviction" under state law may still be a conviction for immigration purposes, and, second, an expunged conviction will not avoid the collateral consequences of a conviction in regards to immigration. The "kingpin of deportation is the aggravated felony, which can be a misdemeanor if the sentence is one year or more. A close second are crimes involving moral turpitude, which includes crimes involving conduct inherently base, vile or depraved and contrary to the accepted rules of morality. "Immigration consequences for drunk driving," he said, "is not generally a crime involving moral turpitude but may be such a crime if the drunk driving results in injury or if the driver knew that his license had been suspended or revoked. Remember it goes both ways--U.S. citizens can be denied entrance into other countries such as Canada." Some laws specifically call for deportation such as weapons offenses, domestic violence, child abuse, stalking, child abandonment, alien smuggling, document fraud, and false social security cards. Exclusion can be the result of drug trafficking, being a family member who benefitted from illicit drug trafficking, being a drug trafficker or abuser, and prostitution. Persons with criminal convictions that render them ineligible for naturalization should be cautioned about filing naturalization applications as those same convictions may also put them in jeopardy of being deported from the United States. Kelly concluded, "This is a very complicated and important area of the law. There are serious consequences. At a minimum, you need to advise your clients of the potential consequences and ask if they want an immigration lawyer. And you might want to warn a U. S. citizen that a conviction could result in exclusion from other countries." Published: Tue, Jun 8, 2010

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