Published on:

What happens when a Criminal Defense Attorney does not know Immigration Law?

A criminal defense attorney who does not know immigration law can end up getting their non-U.S. citizen clients deported. But that is just the beginning. Having a former criminal client who gets deported and blames the defense attorney leads to bar complaints, bad online reviews, bad word of mouth and worse, 3.850 motions for ineffective assistance of counsel that can be a waste of time, money and embarrassing for criminal defense attorneys. So what are a non-U.S. citizen client and their criminal defense attorney to do to try and avoid all of these negative results? Consult with an experienced immigration attorney as soon as possible during the criminal case!

The Supreme Courts of the U.S. and of Florida have ruled that non-U.S. Citizen criminal defendants have a Constitutional right to have their criminal defense attorneys properly advise them of the truly clear immigration consequences of entering a plea in a criminal case. Padilla v. Kentucky, 559 U.S. 356 (2010); Hernandez v. State, 124 So. 3d 757 (Fla. 2012). The Florida Supreme Court has also said that a Judge cannot cure the prejudice that results from a criminal defense attorney’s failure to properly research and advise their non-U.S. citizen clients on the immigration consequences of their convictions. Hernandez, 124 So.3d at 763.

So a Judge cannot protect non-U.S. citizen defendant’s immigration rights, that leaves it up to the criminal defense attorney to do their Constitutionally-mandated duty to discover the immigration consequences of their clients’ convictions. Herein lies the problem, immigration law, especially crimmigration (the intersection of criminal and immigration law) is a constantly changing, ever-evolving beast that requires constant study and practice to stay on top of. An attorney who devotes their practice to criminal defense cannot also be expected to learn every nuisance of crimmigration jurisprudence and stay current with the new developments that happen on an almost-weekly basis.

Immigration law is complex and encompasses statutory law, administrative law, regulatory law, policy memoranda and local practices. Immigration attorneys must be able to interpret state convictions under federal criminal and administrative law. There is a vast array of case law on many different areas of immigration consequences of criminal convictions arising from the Board of Immigration Appeals, the Eleventh Circuit, other circuits and the U.S. Supreme Court. Individual immigration judges interpret these rulings differently and many areas of law are not yet decided.

The Courts have said that a criminal defense attorney cannot simply give the, “[T]his plea may subject you to deportation,” line, to protect themselves and their clients-they have an obligation to do more. An easy way for criminal defense attorneys to protect themselves from ineffective assistance of counsel claims and to protect their non-U.S. citizen clients is to work with an experienced and hopefully Board-Certified Immigration attorney. This can happen one of two ways, either the defense attorney knows an immigration attorney who will give them free, but limited advice, or the client or the defense attorney can retain the services of an immigration attorney.

Retaining an immigration attorney, preferably once who has extensive “crimmigration” knowledge and experience is a great way to protect both the attorney and the client. An immigration attorney can advise the client and the criminal defense attorney throughout the entire criminal case from detention and bond to ICE detainers to plea negotiations and sentencing. An experienced immigration attorney can help advise defense counsel and clients how to mitigate the negative immigration consequences of the criminal prosecution and sometimes how to remove them almost completely.

John Gihon is Board Certified by the Florida Bar in Immigration and Nationality Law and along with his partner Jeremy Lasnetski, who is Board Certified in Criminal Trial Law, they are the Crimmigration Consultants and purveyors of the http://http://www.floridacrimmigration.com website. Call them today for a Comprehensive Crimmigration Consultation for your criminal case.