When you speak Spanish and have an indigent defense practice, it will consist of many Spanish speaking non-citizen clients who have immigration holds due to entering the US without inspection, i.e., no documentation. Much to the chagrin of many, these clients will be in removal proceedings after the criminal case is completed. Many of these clients have no funds to retain an Immigration lawyer. In Austin, Travis County lawyers vetted to accept appointed cases are managed by a Managed Assigned Counsel group. Fortunately, the group provides an Immigration attorney to help us meet our obligations to the client as mandated by the Supreme Court case of Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). The holding in Padilla essentially states that a lawyer who has a non-citizen client charged with a criminal offense has a constitutional obligation to inform the client whether a guilty plea will result in deportation for the client.
However, the goal is not only to properly advise the client regarding deportation, but to craft a plea bargain that will give the client the best chance of: (1) being released on an immigration bond while removal proceedings are pending; (2) of remaining in the US; and/or (3) preserving the eligibility to apply for (a) Lawful Permanent Resident(LPR) status, commonly referred to as a ‘Green Card’ or (b) eligibility for US citizenship in the future.
II. Immigration Consultation
The Immigration consultation is key to the strategy for attaining an acceptable disposition on the criminal case. One of the first things to do with a non-citizen client is to make a referral to the Immigration lawyer, hereinafter referred to as ‘IL’. The next step is to prepare the client for the consultation.
The IL will need to know the following from your client: criminal history; date of entry into the US; immigration status, i.e., (a) LPR, (b) Refugee1 or (c) granted Asylum2; entered with a visa or entered without documentation; any immigration action including the date of action, i.e., (a) removed from US, (b) actual deportation, or (c) denial of admission into US; previous settings in immigration court; previously filed for immigration relief; any contact with an immigration officer; the immigration status of all family members including spouse, partner, children and their ages, the client’s parents, siblings and even grandparents; if client enrolled in High School, has a High School diploma, or a GED; has the client been a victim of crime that was report to law enforcement; and has the client been a victim of domestic violence or trafficking.
The IL will work up the case and prepare a legal memo. The memo will contain what forms of relief, if any, the client has from removal proceedings from the US and recommendations for the type of plea bargains that will support the client’s goals of bond eligibility and of remaining in the US or preserve eligibility for future LPR status or citizenship. This is where the work on the criminal case really begins.
III. Putting the Immigration Advice and Criminal Case Into Perspective
After all the necessary investigation, and of course, the discovery process, plea bargaining can begin with the option of setting the case on the jury docket…because of COVID-19 most of us have not had the benefit of a jury docket. In my experience, my non-citizen clients tend to be reluctant to participate in any criminal trial proceeding out of fear of ICE agents appearing to remove and detain them in immigration custody. Regardless of the reason for not going to trial – COVID-19 or client fear – the fact remains that you as the criminal defense lawyer have the task of handling your client’s criminal cases in a manner that meets your client’s immigration goals.
Here is an example of an actual case with a non-citizen client where we got what we needed without the specter of a jury trial. Mr. Garcia (not actual name) was charged with a DWI 1st (.12 blood test) and Evading Arrest on Foot.
The client was prepped for the immigration consultation. The consultation revealed that he had entered the US without inspection in 2008, was detained by ICE after his arrest for two Robbery cases that were dismissed, was placed in Removal Proceedings3, and was granted Voluntary Departure4, meaning that he was allowed to leave the US without an Order of Deportation. However, he re-entered the US in 2011 without inspection. He was arrested for the DWI and Evading Detention on Foot in 2020. An ICE hold was thereafter lodged against him. This client is not eligible for relief in the form of Cancellation of Removal for Non-LRP’s5 as he has no qualifying relatives such as an LRP or US citizen spouse, child, or parent. Cancellation of Removal would have allowed the client to apply to the immigration judge to adjust his status from deportable to one lawfully admitted for Permanent Residence. Assuming he has a credible fear of returning to his home country, his only remedies are to apply for Asylum, Withholding of Removal6, and Relief under the Convention Against Torture (CAT)7. It was further revealed that the client’s criminal history only consisted of a Juvenile Deferred Prosecution for Evading Arrest and the two dismissed robbery cases mentioned above.
Per the IL, a conviction for the DWI 1st charge under TPC §49.04 will not make the client ineligible for any relief for which he is otherwise eligible at this time. However, a single DWI conviction will reflect negatively on his request for bond from ICE custody. Many immigration Judges consider a DWI conviction as evidence that the client is a danger to public safety. If the Judge is so inclined, they can deny bond or set an exorbitantly high bond.
Per the IL, a conviction for the Evading Detention on Foot under TPC §38.04(a) is not considered to be a Crime Involving Moral Turpitude. This offense would place Mr. Garcia under discretionary detention. Therefore, he could be released from custody on bond if he is not a flight or security risk. Nonetheless, a conviction for the Evading on Foot may also cause the request for bond to be denied as he may be considered a flight risk.
IV. Immigration Lawyer Recommendations
The IL’s recommendation for resolution of the DWI case under TPC §49.04 is to negotiate the case to a non-DWI disposition in which the DWI is dismissed and the client pleads to TPC 1§42.03(a) Obstructing Highway or Passageway. Although a conviction for a single DWI 1st offense will not prevent the client from seeking Asylum, Withholding of Removal, and relief under the Convention Against Torture at this time, it could in the future. The Department of Homeland Security and the Department of Justice have issued a ‘Notice of Proposed Rulemaking’ which would make an individual ineligible for Asylum if convicted of operating a motor vehicle while intoxicated. In addition, a non-DWI disposition will improve the client’s chances of being granted bond by the immigration Court. Immigration Judges view individuals with DWI convictions as a danger to the community.
The IL’s recommendation for the Evading on Foot is to try to negotiate a dismissal. A conviction for Evading can negatively affect the client’s chances for bond. The immigration Court may consider an individual with such a conviction to be a flight risk.
V. Working the Criminal Case
Now the criminal defense lawyer has been tasked to negotiate the DWI to the reduced charge of Obstructing a Highway or Passageway and a dismissal for the Evading on Foot charge. No problem, right?
My strategy is to work the case up as though preparing for a Jury Trial. Comb through all the discovery. In these cases, there were 15,188,376 KB of discovery in the Discovery Portal, including 14 Body Cams, 1 DMAV (in-patrol car video) and the Blood Draw video. Locate and interview the lone witness. Investigate the scene of the alleged crimes, etc., etc. After this, I email the prosecutor in charge to give a heads-up regarding what I am seeking and why. I write a detailed fact-based memo explaining the vast weaknesses in the State’s cases. As we know there are usually many. Be specific and direct in pointing out the deficiencies in the State’s case if you believe doing so will help accomplish the desired plea bargain. It is helpful to include video references and times in the memo to support your position. Remember, too, in a case like Mr. Garcia’s with so much discovery, it is unlikely that the prosecutors will have reviewed it all thoroughly before receiving your memo and request. This gives the defense lawyer the advantage.
VI. Plea Bargaining
- Begins with what the harsh Immigration consequences are for Mr. Garcia. I explain what my tasks and obligations are to the client. I will elaborate on how I can accomplish them with their cooperation.
- Always obtain and tender to the prosecutor a letter from the IL explaining the immigration consequences and recommendations. I use this letter to bolster the arguments for the disposition that is needed.
- Numerous offers will be made that don’t quite meet my objectives, i.e., dismiss the Evading with a plea to the DWI, plead to Evading and Reduce the DWI, etc. Don’t despair and carry on.
- On occasion I will have to involve the upper chain of command. As in these cases, when the trial Court chief told me that the DWI case was not a reduction worthy case and we were at an impasse. I will remind the State that we cannot set the cases for Jury Trial because of COVID19.
- In the end, we prevailed. Mr. Garcia was elated with the result: Obstructing Highway or Passageway was filed to which Mr. Garcia plead to back time and the DWI and the Evading on Foot were dismissed.
- See 8 U.S.C. §1101(a)(42)
- See 8 U.S.C. §1158
- See 8 U.S.C. §1229a, INA §240
- See 8 U.S.C. §1229c, INA §240B
- See 8 U.S.C. §1229b, INA §240A
- See 8 C.F.R. §208.16, INA 241(b)(3)(B)
- See UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UN, Treaty Series, vol. 1465, p. 85