Several months ago, the federal government implemented numerous changes in the immigration laws and regulations, many of which directly impact attorneys who regularly appear in traffic and or criminal court with their non-citizen clients. After attending several immigration law seminars and the American Immigration Lawyers’ annual convention last June, I became acutely aware that information regarding the changes was not trickling down to many lawyers, thereby drastically increasing their risk of committing malpractice. This article is an update of some of the changes in immigration law that affect any attorney who appears in traffic or criminal court representing any person who is not a U.S. citizen. Attorney General John Ashcroft has brought immigration law to a local-state level, and hopefully this advisory will give you an awareness of what your potential exposure is, at least with respect to the issues of criminal convictions and crimes of so-called "moral turpitude."
Just so there is no misunderstanding from the beginning, an alien is ANYBODY who is not a United States citizen. At least 15-20% of our population falls into this category. As far as legally admitted aliens are concerned, there are of course permanent resident aliens but millions of tourists also visit America each year on tourist visas. And there are illegal aliens who either came into America without being legally admitted or somehow violated their status. It is estimated by CBS News that there are 8,000,000 people living in America who are here illegally. DuPage County has literally thousands of legal and illegal aliens living and working here. As soon as they set foot on DuPage County soil, their fate rests with you and in your ability to recognize that once arrested, new and very heavy burdens automatically attach to their status and possible removal (previously known as "deportation") from America.
It is now extremely important that you as an attorney determine the immigration status of any prospective and existing clients if there is any question in your mind as to their status. Clients who give you any indication of being here on a visa, should be asked directly whether they are U.S. citizens. This may be rather awkward, but a simple explanation that your aim is to protect them and their future will definitely increase their regard for you. It will also spare you problems in court.
II. Criminal Convictions and Crimes of Moral Turpitude
Under the new immigration rules, any conviction may lead to removal proceedings against the unfortunate defendant, regardless of the presence of mitigating factors. How the government views the conviction will determine whether removal proceedings are instituted. Any criminal violation that provides for up to 1 year in jail and more than 6 months actual imprisonment is considered a removable offense. Any crime with a punishment of under 6 months’ imprisonment is deemed a petty violation. 2 Thus, a DUI disposition of court supervision, fine of $350.00, alcoholic counseling and a 1-year return date, may be now a one-way ticket out of America. It is considered a conviction because of the plea and the penalty. Whether the defendant alien is removed now depends on how your state law characterizes a DUI. Under Illinois law, a simple DUI with no aggravating circumstances is a class A misdemeanor, but a DUI with physical injuries may end up being charged under the felony DUI statute, which provides for a penalty of imprisonment in excess of 1 year and now qualifies for removal.
Even if the conviction does not result in a sentence of one year, there are certain crimes for which a conviction alone can lead to removal of the defendant from the country. These are the so-called crimes of moral turpitude. 3 For example, leaving the scene of a personal injury accident is a Class A misdemeanor that is also a crime of moral turpitude and conviction may qualify the alien for removal. Similarly, any alien convicted of simple shoplifting, a class A misdemeanor, may undergo removal proceedings. To give an example, a Mideastern woman called me a few months ago. She had gone into her local supermarket, and picked up 3 bottles of spices, one of which she put into her purse. Her motivation doesn’t even matter, because the store manager nailed her right after she checked out but before leaving the store. He accused her of shoplifting, had her arrested over a $2.95 bottle of spice. Her attorney was already working a deal of getting her 6 months non-adjudication, but shoplifting is a Class A misdemeanor involving theft, which is considered a crime of moral turpitude, and convictions of such crimes mean automatic removal. If she pled guilty to shoplifting in your jurisdiction, and you arranged court supervision and a $100 fine, given that it was her first criminal offense, you would have effectively signed her removal order, and she and her husband would be separated. Certainly, removal from the country is an excessive punishment for the crime of stealing a bottle of spice. Fortunately, her lawyer got the offense reduced to a breach of the peace- disorderly conduct, a Class C misdemeanor, and not a predicate for removal.
As described above, a DUI conviction may or may not lead to removal, depending upon how the DUI is charged under the state statutes. However, a defendant who receives a second conviction of DUI may be removable because the second conviction is a crime involving "moral turpitude," as a person who commits a second DUI offense should have known better and therefore has committed an act that is contrary to the accepted rules of morality. A second conviction shows that the defendant drove while under the influence while knowing that he was endangering other drivers. Anything more vague than "contrary to the accepted rules of morality" cannot be imagined.
A D.W.L.S.(driving while license suspended) used to be a Class A misdemeanor. I assume it still is. Consider this scenario. The driver is suspended for financial responsibility, because he didn’t pay a judgment. If that person appears in court, most judges will probably give him a stern lecture, fine him $500.00, and warn him that if he comes back to court, he will go to jail. The real problem is that he will be removed from the United States because D.W.L.S. is a crime of moral turpitude. He knew that he was driving with a suspended license and he therefore was committing an act of willful violation, not to mention the possible endangerment of other drivers. That knowledge constitutes moral turpitude. He stands convicted, and from the federal government’s perspective, he is removable. Getting him court supervision will not help either. Any disposition by the court constitutes a conviction under the new immigration rules.
Any crime involving theft such as N.S.F. checks, fraud where the amount exceeds $10,000, or theft of property, will all be viewed as crimes involving moral turpitude, leading to removal. 4 Any type of fraud, resulting in a possible jail term of more than 1 year, or where the amount exceeds $10,000 is removable as an aggravated felony. 5 Beware that if your client is charged with multiple offenses whether arising from a single scheme or others and the aggregate penalty could be more than 5 years, is subject to removal even if "moral turpitude" is not at issue. 6
Any crime involving domestic violence is considered a predicate for removal. Crimes of violence can cause a spouse in a domestic violence case to be removed because it may be considered an aggravated felony or a crime of moral turpitude. It really depends upon the characterization of the offense under state statute. 7
III. Legal Implications for the Criminal Defense Attorney
Once you have negotiated a plea for an alien criminal defendant, without making certain that he is aware and understands that the court’s disposition may result in removal proceedings, don’t be surprised to have a motion filed by a newly created lawyer, dubbed a "Guerrilla Lawyer" by immigration experts. 8
You will recognize who he or she is, because the A.S.A. may request a conference in chambers regarding that case that was already heard. Now remember, the alien will have hired this attorney without your knowledge. That attorney will advise the judge that because you failed to advise the alien of the immigration consequences of the plea, the conviction must be vacated and the State must decide whether to re-prosecute or drop the case. In your mind, you will be asking: "What alien? What is this lawyer talking about?" If the state objects and the judge refuses to vacate the conviction, the alien may file suit in federal court accusing you of violating his or her due process rights. Ultimately, if the case gets into this mess, you will have failed to protect both your client and yourself. 9
There are 19 states that require the sentencing judge to advise the alien criminal defendant of the immigration consequences of a plea and any type of penalty or sanction. Although I spent 1.5 hours reading the Illinois Sentencing guidelines, I could not determine whether Illinois is one of the 19 states. 10
Previously, judges only were required to advise defendants of the direct consequences (fines and or prison) but not collateral consequences such as immigration removals. But before the new immigration rules, removals were rare, but not at present. Because removals are now immediate, they are no longer considered collateral, but the direct result of a conviction. The U.S. District Court for the Northern District of Ohio has ruled that judges and criminal defense attorneys have an obligation to advise alien defendants of the immigration consequences of a plea and sentencing. 11 The First Circuit has refused to adopt that rationale, 12 but times are changing rapidly and it is only a matter of time before you will be held accountable for failing to advise alien clients of immigration consequences of a plea or conviction.
Being aware of the problem is half the battle. My purpose is not to make you instant experts, but, rather, to create awareness so that you do not fall into an I.N.S. trap. Creating a solution when representing a client who is not a U.S. citizen, is entirely another problem and up to you. Conventional wisdom from immigration attorneys is: if in doubt, contact an immigration attorney. His or her knowledge of Illinois criminal or traffic law is not important. You need to know whether your client is heading down a very lonely road back to his home country. The input you receive, though, could well be life saving for that client.
1 Section 101(a)(48)(A) of the Immigration and Nationality Act ("INA") defines "convictions." 8 U.S.C. § 1229b(d)(3) (2001). A deferred prosecution is a conviction. In re Punu, Int. Dec. No. 3364 (BIA 1998).
2 Section 212(a)(2)(A) of the INA differentiates between petty and major crimes. 8 U.S.C. § 1182(a)(2)(A) (ii)(II) (2001).
3 Section 212(a)(2)(A)(i)(I) of the INA refers to crimes of moral turpitude but does not define the term exactly. Courts have defined crimes of moral turpitude as crimes involving dishonesty, inherently debased, vile or depraved behavior, moral wrongness, or some act contrary to the accepted rules of morality or considered basically wrong. Matter of Franklin, 20 I&N Dec. 867 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1985).
4 Section 101(a)(43)(G) of the INA defines "theft."
5 For a description of aggravated felonies, see section 101(a)(43) of the INA. See also Matter of Ponce de Leon, 21 I&N Dec. 154 (BIA 1996).
6 INA § 212(a)(2)(B), 8 U.S.C. § 1182 (a)(2)(B); INA § 237 (a)(2)(ii), 8 U.S.C. § 1227(a)(2)(ii).
7 See Section 237(a)(2)(E) of the INA for a description of crimes of domestic violence. 8 U.S.C. § 1227 (a)(2)(E).
8 2 Immigration and Nationality Handbook 440 (1999-2000). See also Lea McDermid, Deportation is Different: Noncitizens and Ineffective Assistance of Counsel, 89 Calif. L. Rev. 741 (2001).
9 See McDermid, supra note 8.
10 See R. Weingerter, Challenges to Removal Based on Criminal Convictions:Post-Conviction Relief and Immigration Proceedings, 02-02 Immigration Briefings 1, at 5 (2001).
11 United States v. El Nobani, 145 F. Supp. 2d 906 (N.D. Ohio 2001). Contra People v. Pozo, 746 P.2d 523 (Colo. 1987).
12 United States v. Amador-Leal, 276 F.3d 20 (1st Cir. 2000).
Fred DePasquale, a resident of Cape Coral, Florida, is in private practice and commutes to DuPage County on an as needed basis. A graduate of I.I.T. Chicago-Kent College of Law, he served as an ASA in Cook and DuPage Counties, an Asst. Attorney General in Revenue Litigation in Chicago, and an Administrative Law Judge for the Illinois Department of Revenue. Before becoming an attorney, he was a federal officer in Chicago, assigned to the U.S. Attorney’s Office in its Organized Crime Strike Force to investigate labor union embezzlements and fraudulent elections.