Legal fictions: collateral consequences edition

Back in the day, I posted about two different legal fictions: rehabilitation during voir dire and the difference between the standard of proof in trials and VOP hearings. Here’s another that’s been stuck in my craw for a week or so now: collateral consequences that really are direct consequences but no court will acknowledge that.

Most specifically, I’m referring to immigration consequences of pleas – and no, not illegal immigrants. There are plenty of legal residents of this country that get deported after obtaining convictions. The standards for deportation are so low: almost anything can be an aggravated felony that results in deportation (yes, even possession of marijuana).

But that’s not the problem. If you’re aware of that pre-trial, you can deal with it or make an informed decision. What really gets me is when defendants have absolutely no clue that if they plead guilty to a particular crime, they will face almost certain deportation and courts simply throw up their hands and say “too bad!”

The law in this area is absolutely terrible and almost all of it because immigration consequences are deemed “collateral”. There is very little more direct (besides the actual incarceration) than facing deportation as a result of a conviction. In most cases, it is the legal resident who has lived here his entire life, whose “home” country has no connections for him, who gets screwed.

In fact, the law is so terrible that attorneys have zero obligation to actually inform their clients about the immigration consequences of their convictions. They can say absolutely nothing about a possible deportation and yet they would have performed adequately. It is only if there is a misrepresentation about immigration consequences will courts look at the performance of attorneys.

There is nothing more absurd than protecting an attorney for failing to advise his client about a very real and very important consequence of a conviction. Yet, this is prevailing law of the land.

As an attorney, wouldn’t you want to know if the conviction will result in deportation? How difficult is it to ask if the client is a citizen and if not, know and understand the consequences of a conviction. It is our job as counsel to adequately and effectively advise our clients about their options and the consequences of their actions. Certainly the very real possibility of deportation is something that we should add to our checklist of things to do. Sure, immigration law is complex, but as with all things, it becomes clearer once you familiarize yourself with it. It should be made a part of every attorney’s training and practice.

The courts certainly aren’t going to help our clients in this arena; shouldn’t we?

3 thoughts on “Legal fictions: collateral consequences edition

  1. Jon Katz

    Thanks, Gideon, for this. Not only are many non-U.S. citizen criminal defendants unaware of the negative immigration consequences of their potential convictions and sentences, but one day in a Virginia court a year ago, at least two or three otherwise very good lawyers looked at me like I was crazy when I said that there’s no way my client could accept the first-time offender marijuana program, because the immigration authorities treat it as a deportable guilty finding (unless the defendant can avoid deportation through the under-30-grams of marijuana exceptiont that did not apply to him, as an F-1 student visa holder).

    My articles on the topic include:

    Take care. Jon

  2. appellate pd

    I had a client who was trying to withdraw a plea on a similar “collateral consequence” issue. The client told his trial attorney that he needed his criminal case to be decided so he could reinlist in the military. He lives in a part of the country where there are not a lot of jobs, and he belived that the military was the only way he could adequately provide for his large family.

    At the plea hearing, the attorney stated on the record that the reinlistment was the reason for the defendant taking a plea agreement. However, the plea was for a crime that actually prevented the client from reinlisting (in addition, there was a decent defense to the charges as well). There was a pre-sentencing plea withdrawal motion, and the trial court and the appellate court said that this did not constitute “good cause” to withdraw the plea. The courts both cited the “collateral consequences” rule.

    It took me one phone call to a recruiter and 10 minutes on google to find the regulation that prevented the reinlistment.

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