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February 15, 2022

Immigration & Crimes: Immigrants Facing Deportation | Legal Analysis

Immigration & Crimes: Immigrants Facing Deportation

Jacqueline Weiss

According to the U.S. Census Bureau, as of November 2021, there were reported to be approximately 46.2 million immigrants in this country including both legal and illegal immigrants. This number grew from the 44.8 million immigrants that were reported in 2020. About 61 percent of immigrants are of Hispanic heritage.

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They remain at risk of being subject to removal or deportation hearings for the commission of any crimes which can trigger ICE to become involved. They risk the potential for criminal convictions, incarceration, and the possibility of being removed from the United States to their country of origin.

Not all criminal convictions lead to deportation. The Immigration and Nationalization Act triggers removal proceedings for crimes of moral turpitude, aggravated felonies, drug convictions, firearms conviction, crimes of domestic violence, and others such as espionage, sabotage, and treason. For example, immigrants accused of fraud, larceny or theft, aggravated assaults, sex crimes, rape, or money laundering can be subject to civil forfeiture proceedings. 

It is interesting to note that there is no constitutionally guaranteed right to counsel in deportation hearings as in criminal proceedings. In 2020, only 66 percent of non-detained immigrants and 14 percent of detained immigrants retained legal counsel. Represented immigrants were much more likely to receive deportation relief in the form of asylum in their immigration and deportation appeal proceedings.

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However, only too often, many defense lawyers fail to focus on the primary goal for their immigrant clients: to remain in the United States rather than a guilty plea with a reduced sentence.  Although reduced jail time may be a priority for most defendants, that is not the case for immigrants. A guilty plea with no jail time may lead to deportation to their country of origin. Lawyers need to be aware of the fact that what is good for the typical U.S. citizen defendant is not always good for the non-citizen defendant. On the contrary, many immigrants would rather serve longer prison sentences in exchange for the security of being able to stay in the United States.

There is no constitutionally guaranteed right to counsel in deportation hearings as in criminal proceedings.

Often immigrants do not realize the grave impact that a guilty conviction can have on their lives until immigration begins deportation hearings. This may happen while someone is serving a criminal sentence in jail or after the sentence has ended.

Although defenses exist to deportation, its success is dependent on the amount of evidence available, as in witnesses, testimony, police reports, and medical and legal records. The immigrants face a tough challenge to provide supporting documentation in their defense, such as birth certificates, passports, police reports and court documents. However, one can try to avoid deportation by changing one’s criminal conviction. Given the right circumstances, the attorney can file a motion asking the criminal court to erase or vacate the guilty plea.

One possible defense could be the Sixth Amendment right to effective assistance of counsel. It protects non-citizen defendants with a duty to inform them of the impact a plea will have on their immigration status. For example, the defense lawyer may not have mentioned the consequences a guilty plea would have on their immigration status. For many defendants, this means a legal remedy may exist to overturn a conviction if the defendant was not warned of the immigration consequences of his guilty plea. The immigrant must also show that this lack of advice prejudiced him as he may otherwise have requested a jury trial, sought defenses to the charge, or negotiated a plea that would not deport him.

It's clear that if an immigrant has been charged with a serious crime, he should consult with criminal counsel to properly advise him as how to best proceed so as not to risk deportation.


Source for Statistics:

Abby Budiman, Key Findings about U.S. Immigrants, PEW RES. CTR. (Aug. 20, 2020) https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/

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