Introduction

Many criminal defense attorneys, in advising non-citizen clients, may say something along the lines of, “I’m not an immigration expert, but pleading guilty could have immigration consequences, so if you want to hire an immigration attorney with your own money to ask your questions, then you can do that, and I’m sure the judge will allow time for that to happen.” This is better than not mentioning immigration but is often not enough to give the effective assistance of counsel that defendants deserve, as explained by the United States Supreme Court.

Although immigration law’s relationship to criminal law can seem complex and intimidating, providing effective assistance to non-citizen criminal defendants requires understanding only one statute and ICE enforcement provisions. To help with your understanding, this article will address the background on immigration law, criminal law, and ineffective assistance of counsel. It will then provide clarity around the governing statute and enforcement provisions.

Background

In Padilla v. Kentucky, 559 U.S. 356 (2010), the defendant pled guilty when his attorney erroneously assured him that he would not be deported. The United States Supreme Court vacated the resulting conviction based upon ineffective assistance of counsel. The talk-to-an-immigration-attorney approach fits precisely with Justice Alito’s concurring opinion in Padilla, who proposed that an attorney “(1) refrain from unreasonably providing incorrect advice and (2) advise the defendant that a criminal conviction may have adverse immigration consequences and that, if the alien wants advice on this issue, the alien should consult an immigration attorney.”[i]

However, recognizing that immigration law can be complex and uncertain, the majority opinion requires more: If the law is straightforward, the attorney need only advise the client of the risk of adverse immigration consequences. “But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”[ii]

            The “truly clear” deportation consequence in Mr. Padilla’s case was that “[a]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance …, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.”[iii]

Here in Idaho, our criminal rules can assist defense counsel to stay compliant with Padilla, providing various immigration warnings throughout the Idaho criminal process. For example, a “district judge … must inform all defendants that, if a defendant is not a citizen of the United States, the entry of a plea or making of factual admissions could have consequences of deportation or removal, inability to obtain legal status in the United States, or denial of an application for United States citizenship.”[iv]

Also, the guilty plea advisory form, which judges are not required to use, gives the advisal required by ICR 11(d) and later asks “If you are not a citizen of the United States, have you talked to your attorney about the impact of your guilty plea on deportation, on your legal status in the United States and on obtaining United States citizenship?”

It is argued here, however, that where the immigration consequences are clear (as in Padilla), the defense attorney should do more than simply read the advisal found earlier in the form. Far from forbidding criminal defense attorneys from discussing immigration consequences, the law requires that they provide guidance to their non-citizen clients regarding immigration consequences “where deportation consequences are truly clear.”[v] If the defense attorney is expected to give competent advice or act as an immigration expert, how do they do this? 

The first suggestion would be to determine the criminal defense client’s immigration status. Likely your client is aware of his or her immigration status or lack thereof.  You simply need to ask.  In most cases, a U.S. passport and/or US birth certificate indicates full U.S. Citizenship, and no consequences attach.  Otherwise, think about placing your defendant clients in one of the following three groups of noncitizen defendants: (1) Noncitizens who are permanent residents or visa holders, (2) Noncitizens with Potential Future Paths to Lawful Status, or (3) Noncitizens Who Want the Immigration Process Expedited.

Noncitizens Who Are Lawful Permanent Residents or Visa Holders

Lawful Permanent Residents (also called “LPRs” or “green card holders”) and other lawful visa holders are the noncitizens with the most at stake in criminal court.  Many are enjoying the full benefits of legal work, a driver’s license, and stability that is similar to that of a US Citizen. Many LPRs and visa holders know their immigration status can become vulnerable with a criminal charge, and they may already have a relationship with an immigration attorney.  If this is the case, you should contact their immigration attorney immediately upon appointment by the court or entering your appearance for them.

A lawful immigrant can lose status and be deported for any of the reasons listed in 8 U.S.C. § 1227. Problematic criminal convictions are listed in subsection (a)(2), “Criminal Offenses,” and that section can be read in about five minutes. It would be well worth a criminal defense attorney’s time to take those five minutes for any case involving an LPR or visa holder to determine if any charge might fit into a deportable category.

And no, this type of quick review does not make you know “just enough to be dangerous.” The fact is, criminal defendants cannot ignore immigration consequences, and a vague and uninformed comment to them about hiring a private immigration attorney, who they may or may not be able to afford, is much more dangerous.

Within 8 U.S.C. § 1227(a)(2), we propose the criminal defense attorney divide his or her knowledge into three groups of deportable crime.  Crimes involving moral turpitude and aggravated felonies under Part (A).[vi] Crimes relating to controlled substances, firearms, domestic violence, stalking, child abuse, and violations of civil protection or no contact orders under Parts (B)(C), and (E). And federal specific crimes related to human trafficking, espionage or sabotage against the US government, or crimes affecting the U.S. military under Parts (D) and (F).

Anything that appears it may fall into the definition of an Aggravated Felony at 8 U.S.C. § 1101(a)(43), or has the key words: controlled substances, firearms, domestic violence, stalking, child abuse, and violations of civil protection or no contact orders, are red flags.  These are crimes with immigration consequences that are, in Padilla’s words, “truly clear.”

In Padilla, the defendant was an LPR with a drug conviction. For the purposes of advising clients, any conviction “related to” any controlled substance could be ruinous, resulting in immediate immigration detention and allegations of deportability. Although the immigration attorney’s job is to argue that a status of conviction is not “truly clear,” defense counsel should not make this sound easy or advise how successful the immigration argument might be. 

Proving that state criminal offense “categorically”[vii] does or does not match the federal code and determining what parts of the state court’s record may come into evidence to determine deportability, is a long and arduous journey. In Idaho, we have had very few litigated immigration cases, and, as most criminal defense attorneys are keenly aware, immigration law is complex, contradictory, and ever changing. [viii] 

Following conviction of a controlled substance offense in Idaho, an LPR will have a long, expensive, and uncertain battle in arguing whether immigration consequences attach to his or her conviction and may still lose the war. Even something as seemingly innocuous as drug paraphernalia “relates” to a controlled substance, and only after a hard-fought battle up to the US Supreme Court in Mellouli v. Lynch,[ix] did a non-citizen in Kansas receive some assurances that it would not affect his immigration status.

It’s worth repeating, in addition to crimes relating to controlled substances, representing a non-citizen client against an accusation of an Idaho crime that involves firearms, domestic violence, stalking, child abuse, or violations of civil protection or no contact orders, the criminal defense attorney’s advice should probably be that it is very likely that those convictions will result in deportation.

Note, too, that an Idaho withheld judgment fully counts as a conviction under the immigration code and will not save your noncitizen client.^[x] So, advising a client that there may be a vague immigration consequence to their plea deal, the minimum required of the Idaho Criminal Rules, is likely misleading and not in compliance with Padilla, and simply put, understates the risks.^[xi]

Noncitizens with Potential Future Paths to Lawful Status

Those criminal clients who have no legal immigration status are deportable[xii] simply by being physically present in the U.S. without proper immigration documentation. In those cases, the criminal defendant is often more concerned about simply being found by Immigration and Customs Enforcement (“ICE”) officials, instead of any statutory negative immigration consequences attached to the crime itself. If this is the situation, the criminal defense attorney should be familiar with current enforcement priorities and what types of convictions could make them more vulnerable to arrest by ICE.[xiii]  

Noncitizens who may have a pathway to lawful status, such as through a petition by a U.S. citizen family member, need to avoid convictions that make them inadmissible under the federal statute. The grounds of inadmissibility related to crimes are found at 8 U.S.C. § 1182(a)(2), and it takes just about five minutes to read that entire subsection, “Criminal and related grounds.”

It also is helpful to take a little more time to read the criminal waivers and exceptions for those crimes at 8 U.S.C. § 1182(h). The most common criminal grounds for inadmissibility are for controlled substances and crimes involving moral turpitude (discussed above). Convictions that are markedly absent from grounds of inadmissibility are aggravated felonies, and offenses related to firearms, domestic violence, stalking, child abuse, and violations of civil protection or no contact orders. This is not to say that such a conviction may not also be classified as a crime involving moral turpitude (“CIMT”).

A CIMT has been defined as an immoral act, not merely illegal, with a mens rea of at least recklessness.[xiv] CIMTs include a gamut of different serious criminal behavior, namely theft crimes (involving fraud or intent to permanently take property), and crimes against a person such as battery or rape, and most other sexual crimes.[xv] For a better understanding of CIMT look to case law or guidance online in the policy manuals of the Department of State (“DOS”)^[xvi] and United States Citizenship and Immigration Services (“USCIS”).^[xvii] Even some misdemeanors may be considered CIMTs. Suffice it to say, look out for cases involving theft and lewd conduct. 

Immigration law is unclear regarding whether an Idaho misdemeanor conviction of petit theft, Idaho Code § 18-2403 or 18-2407(2) is considered a CIMT. Although there is case law that says the Idaho definition of theft, Idaho Code § 18-2403 is not a categorical match to the federal definition of a CIMT,[xviii] due to section (5) (regarding temporary theft that may have not substantially eroded the property), the US Department of State has been known to challenge this.  If the Idaho theft statute is divisible—which remains an open question—the noncitizen’s record of conviction[xix] must show under which section of the definition of theft the crime was committed.

Specific to Idaho, the common misdemeanors of simple assault or battery^[xx] (no weapon, serious injury, or special class of victims), driving without privileges or insurance,^[xxi] and driving under the influence of alcohol^[xxii] (even with the excessive .2 concentration) are, for now, unlikely to be considered CIMTs.

The immigration statute allows for two exceptions to inadmissibility where there is only one CIMT: (1) if the crime was committed before the age of 18; or (2) if the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of six months.[xxiii]

Although a simple DUI under Idaho Code § 18-8004 is not a CIMT, it may harm a noncitizen by making him or her an ICE priority. Like most state DUI statutes, Idaho’s simple DUI is not considered a CIMT,[xxiv] but a non-citizen with one DUI conviction will be flagged as a public safety concern by ICE. This means the noncitizen will likely have difficulty obtaining a bond in removal proceedings or proving good moral character for his or her potential removal defense, should the need for such an immigration defense arise.[xxv] Additionally, DUIs prevent renewal of a noncitizen’s case granted under Deferred Action for Childhood Arrivals (“DACA”). 

Noncitizens Who Want the Immigration Process Expedited

Some incarcerated noncitizens who have been flagged by ICE by the filing of Form I-247 Notice of Detainer (“hold” or “detainer”) may ask their criminal defense counsel to assist them in expediting their case so they may also expedite their immigration proceedings. As with any criminal defendant, the noncitizen’s criminal bail amount will be determined by either the Idaho Criminal Rules bail schedule or the judge at the defendant’s arraignment. An ICE hold does not deny an Idaho defendant his or her right to bail. ICE will make their custody decision only after the criminal bail has been paid.

Just like with any criminal defendant, the noncitizen will still be required to respond and report for his or her criminal case after release on the criminal bail, regardless of whether that release is into the hands of ICE. Therefore, noncitizens should be advised to attend their criminal proceedings no matter what ICE’s custody determination is.

If the noncitizen defendant is in federal custody or has been summarily removed from the U.S., a defense attorney should promptly notify the prosecutor and court to avoid further charges under Idaho Code § 18-7401 (bail jumping) or § 19-3901A (failure to appear) or the issuance of an arrest warrant. A zealous advocate might even be advised to file a Motion to Request an Order of Transport from federal custody to state custody or a Motion to Telephonically Appear for a defendant who is unable to secure a visa for their return to appear in-person for their Idaho criminal proceedings.

If a noncitizen, hopefully after discussion with immigration counsel and family, wants to pay bail in the criminal case to “expedite the immigration process,” a criminal defense attorney has an obligation to assist. Some jail staff may misunderstand and misinform family members that criminal bail cannot be paid for an individual who also has an immigration hold. If this occurs, defense counsel needs to assist in explaining to jail staff that the defendant has a legal right to pay the bail and wishes to do so despite the hold.

In cases involving probation violations, the question may arise whether to give another chance on probation or impose jail time. Sometimes Idaho judges and prosecutors are aware of the immigration hold and may be inclined to impose time (maybe even less than the maximum where the defendant is being agreeable) to assist with a clean release to ICE custody. This may be in a defendant’s best interest depending on the veracity of his immigration claims or their plans once ICE takes custody of him or her.

However, the existence of an immigration hold could also lead a judge to impose time against the defendant’s request, where somebody without a hold would be given probation. It would violate attorney-client trust and ethics rules for an attorney to disclose confidential information received from the client about the client’s immigration situation in a way that does not serve the client’s objectives. However, the court may learn about the immigration hold in other ways. Defense counsel should note that the ICE Detainer Form I-247 specifically says the notice “should not impact decisions about the alien’s bail, rehabilitation, parole, release, diversion, custody classification, work, quarter assignments, or other matters.”^[xxvi] If Idaho courts systematically treat defendants with immigration holds worse than other defendants, without having the full immigration picture, it may violate Equal Protection or Due Process under the Fourteenth Amendment.^[xxvii] Remember to zealously advocate for your client.

Conclusion

If the content of this article seems initially overwhelming to criminal defense counsel, think of it as not too different from the rest of your job. Ask about your client’s concerns and tell them you would like to know more about his or her immigration status to help advise on defense options. Create a relationship with the immigration bar and teach yourself about convictions that have a “truly clear” prejudicial impact on immigration status.

You need only add in one more statute to your research (the deportability statute for those with lawful status or inadmissibility statute for those who are deportable for being here without permission and who simply want to keep future admissibility available) and know where to find current ICE enforcement priorities.   Certainly, explain your lack of expertise, and indicate that for some or all questions, a consultation with an attorney who more regularly works with immigration law is advisable.  Taking these steps will keep you in compliance with Padilla.

Nicole Derden opened her own immigration law firm in Meridian, Idaho, in 2009.  She is a graduate of the University of Idaho College of Law, a member of the Idaho Chapter of the American Immigration Lawyers Association and a former professor of immigration law at Concordia University.  She recently opened a branch office in Hailey, Idaho, in 2023. When not practicing immigration law, she enjoys spending time with her husband and their four boys. 

Rees Atkins works as a public defender in the Mini-Cassia area. He previously practiced immigration law at Echelon Law, and he continues to write his representatives to promote improvement in immigration law. He began his legal career as a law clerk to the Honorable Benjamin J. Cluff of Idaho’s Fifth Judicial District. Rees’s highest priority is his family. He hopes that immigrants and criminal defendants can also have the benefits of peaceful family life that he enjoys.

[i] Padilla v. Kentucky, 559 U.S. 356, 375 (2010) (J. Alito, concurring in the judgment).

[ii] Padilla v. Kentucky, 559 U.S. 356, 369 (2010) (emphasis added). 

[iii] Id. at 368, quoting 8 U.S.C. § 1227.

[iv] Idaho Criminal Rule 11(d).  

[v] Padilla, 559 U.S. at 369.

[vi] Crimes involving moral turpitude are defined by decades of case law and aggravated felonies  are defined in 8 U.S.C. § 1101(a)(43).

[vii] The categorical approach is fascinating, and extensively reviewed by immigration courts.  For a quick read, check Kathy Brady,’s “How to Use the Categorical Approach (ILRC, Oct 2021) https://www.ilrc.org/sites/default/files/resources/note_2021_categorical_approach.pdf.

[viii] For a recent case regarding controlled substances in Idaho, see Tellez-Ramirez v. Garland, No. 22-1168 (9th Cir. 2023).  

[ix] 575 U.S. 798 (2015).

^[x] Matter of Rodan, 22 I&N Dec. 512 (BIA 1999). However, a deferred-prosecution agreement may not count as a conviction, particularly if there is no admission (as admissions can create admissibility problems even where there is no conviction). If a prosecutor typically wants an admission, perhaps instead a waiver of the rights to a jury, present evidence, object to or cross-examine the State’s evidence, and appeal would be acceptable. For simple cases, that would allow the state to accomplish the same thing as an admission with a 20-minute bench trial. See Anita Gupta, Valerie Zukin & Kathy Brady Immigration Consequences of Pretrial Diversion and Intervention Agreement, Immigrant Legal Resource Center Practice Advisory.

^[xi] See Lilia S. Stantcheva, Padilla v. Kentucky: How Much Advice is Enough?, 89 N.Y.U. L. Rev. 1836 (2014) (“Optimism bias implies that noncitizen clients who have received advice about the “risk” of deportation might see it as an unlikely event.”).

[xii] If a noncitizen is an undocumented person, they are charged with deportability 8 U.S.C. § 1182 as “inadmissible.”

[xiii] Even without a conviction being the legal trigger during deportation proceedings, it may be the trigger that renders them an enforcement priority, given that immigration enforcement authorities are instructed to use their discretion in such a way that removability “should not alone be the basis of an enforcement action.” https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf. Challenges to that guidance failed in United States v. Texas, 599 U.S. (2023).

[xiv] Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008). 

[xv] See https://www.U.S.C.is.gov/policy-manual/volume-12-part-f-chapter-5 and Immigrant Legal Resource Center, www.ilrc.org, § N.7 Crimes Involving Moral Turpitude January 2013.

^[xvi] 9 FAM 302.3, accessed on Jan. 11, 2024 at https://fam.state.gov/Volumes/Details/09FAM. FAM stands for Foreign Affairs Manual.

^[xvii] 12 U.S.C.IS-PM F.5, accessed on Aug. 20, 2024 at https://www.is.gov/policy-manual/volume-12-part-f-chapter-5. This section discusses crimes involving moral turpitude as 5-year bars to permanent residents seeking to naturalize, but the definition of crimes involving moral turpitude is the same in the context of admissibility.

[xviii] Lozano-Arredondo v. Sessions, 866 F.3d 1082 (9th Cir. 2017).

[xix] “Record of Conviction” is a limited set of documents that may be reviewed by an immigration adjudicator in cases where the statute of conviction is found to be divisible—by using a modified categorical approach to determine if the conviction is a deportable or inadmissible offense.

^[xx] Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996).

^[xxi] Acts that are not inherently wrong but are wrong primarily because a statute says so (and thus talking to a government agency may be needed to ensure compliance), are quintessential examples of crimes that do not involve moral turpitude. See Matter of L-V-C-, 22 I&N Dec. 594 (BIA 1999).

^[xxii] Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001).

[xxiii] 8 U.S.C. § 1182(a)(2)(A)(ii).

[xxiv] Matter of Vucetic, 28 I & N Dec. 276 (BIA 2021).

[xxv] Specifically for Non-LPR Cancellation of Removal a non-citizen must show good moral character for a period of 10 years 8 U.S.C. § 1229b(b)(1).

^[xxvi] https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf, last accessed Jan. 18, 2024.

^[xxvii] See Graham v. Richardson, 403 U.S. 365 (1971).