|By Susan E. Hill, July 11, 2017
A couple of weeks ago we filed a Ninth Circuit appeal that demonstrates how a sharp attorney can make a difference where criminal records are involved. Even minor criminal convictions could have serious consequences on an immigration case, after the defendant is finished in the criminal court system. Many criminal-immigration defendants have family living in the U.S. lawfully, and strong emotional/spiritual/financial ties. Deportation could mean that a young U.S. citizen boy or girl would be deprived of a father or mother for the remainder of childhood; a very harsh punishment to impose on a defendant’s family for his or her mistake or lack of judgement.
Therefore, it is important that the immigration laws “get it right” when deciding which people to exclude from the U.S. The immigration laws punish broad categories of criminal conduct with deportation, but the categories are generally described: for example, a “firearm offense,” or a “controlled substance offense.” For deportation, the government must prove which specific law was broken. Then the Immigration Judge examines the broken law, as written, to see if it is one described by the immigration categories. This may sound easy, but with fifty different states they have numerous complex laws with many components that could be broken—some parts may fall under the immigration description and some parts may not.
So how does the government “get it right?” The Judge is allowed to look at the documents in the criminal record and see for which parts of the law the defendant was charged, and whether ultimately he was found guilty of breaking those specific parts, as charged. But a nolo contendere plea can be a different animal because it doesn’t necessarily admit which parts were broken.
This is where the nitty-gritty details make a difference in the hands of an attorney with experience in criminal/immigration laws. In our client’s case, the government was trying to strip him of his permanent residency and deport him, after he’d been living here for more than 16 years with a citizen wife and 2 citizen children. The government was relying on just two words that appeared in the state criminal record, in the summary of his nolo contendere plea: a reference to “Count 01” of the criminal complaint, which charged our client with a specific crime.
Two words in this document, created during criminal court prosecution, opened up a can of worms down the road for deportation proceedings. Everyone involved in the deportation case had rolled over and assumed that those two words, “Count 01,” were an admission of guilt to breaking the law described by Count 01 of the criminal complaint. And the Immigration Judge determined that the law described in Count 01 was one punishable by deportation.
We took over this case and filed an appeal. In California, a nolo contendere plea does not automatically admit guilt to breaking the specific laws contained in the criminal charging document. Defendants enter a nolo contendere plea when they believe that the government does not have a good case to prove that the specific law, as charged, was broken. In return, the defendant avoids prolonged trial and detention, and avoids a finding that he or she definitely committed criminal acts to break that particular law (this could be important in the future for various legal consequences), but the government still gets a conviction.
A sharp attorney, aware of the immigration consequences, would not have allowed the two words, “Count 01,” to remain in the record without further clarifying language. Now this detail has raised a novel issue, and it could have been avoided with more precaution in criminal court, and more analysis in immigration court. We shall see how the Ninth Circuit addresses this issue; it never has published an opinion yet on the subject but we commonly raise these types of arguments and push for better clarification of the criminal/immigration intersection.
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