HOW WE HELP LAWYERS
AND THEIR CLIENTS
It’s a fact of legal practice: Criminal defense lawyers have clients with immigration issues, and immigration lawyers have clients with criminal issues.
Even wise and seasoned attorneys rarely have time to master a new and complex areas of law, but the Supreme Court says criminal defense lawyers must make certain our clients are properly informed about potential immigration consequences of criminal convictions.
These situations call for a lawyer with extensive knowledge and experience in both criminal and immigration law. Counsel without the specific expertise in both would be wise to consult or associate with one who does. In fact, this is what the United States Supreme Court advises.
Attorney Stephen Shaiken has practiced criminal defense and immigration law for decades, and is as familiar with immigration courts as with criminal courts.
WHAT EVERY LAWYER WITH A NON-CITIZEN CLIENT MUST KNOW
CRIMINAL LAWYERS MUST ADVISE NON-CITIZEN CLIENTS ON
IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS.
In Padilla v. Kentucky, 559 U.S. 356, 1305 S.Ct. 1473, 176 L.Ed2d 284 (2010) the Supreme Court of the United States imposed a new professional responsibility on criminal defense attorneys: the affirmative duty to advise non-citizens clients of immigration consequences of a guilty plea. Specific advice must be given where easily ascertainable. (As we lawyers know, what is reasonably ascertainable to an appellate judge with a staff of researchers may not be as ascertainable to a harried criminal practitioner).
The Supreme Court noted that “Immigration Law can be complex, and it is a legal specialty of its own.” 130 S.Ct. 2d at 1484. Nevertheless, criminal defense counsel is expected to determine whether they can provide specific and detailed advice about potential immigration consequences and do so where feasible; where they do not know, they must at a minimum advise that there is a risk. Clients in that second category should be encouraged to seek expert advice, or counsel should do so. Justice Alito recommended this in his concurring option:
“…an alien defendant's Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject.” 130 Sc.Ct. 2d at 1494
Often the immigration consequences are worse than the criminal punishment. The client who thought defense counsel had secured a great deal may not feel that way when ICE comes calling. Responding to a claim of IAC by saying you told the client it might be a risk may not sound convincing to a trier of fact. Counsel is far better off with a detailed analysis of consequences and potential reliefs spelled out and presented to the client to prevent and defend such claims.
WE PROVIDE THE FOLLOWING SERVICES:
We advise criminal defense and immigration attorneys of the immigration consequences a specific conviction triggers, and what relief might be available in the immigration and criminal systems. We will:
A. Examine the charges and plea offers. We will look for statutes with less severe or no immigration consequences;
B. Evaluate client’s status and immigration history;
C. Determine if immigration waivers or other relief is available to client;
D. Evaluate feasibility of post-conviction relief in criminal courts for immigration relief;
E. Provide counsel and their client a detailed written report;
F. Advise counsel during plea negotiations;
G. Provide counsel and representation in criminal and immigration court or agencies as needed;
H. We can advise counsel how to prevent unnecessary derogatory information from becoming part of the criminal record of conviction used in immigration proceedings.
Criminal defense lawyers can protect themselves against habeas, malpractice suits, bar complaints, and know that their clients were well-advised.
Many immigration lawyers have a basic knowledge of what crimes carry immigration consequences. The finely-nuanced distinction that determine immigration consequences are outside their areas of expertise. Business and family visas as well can turn on these issues. With the possibility of embarrassing Lozada or IAC claims, and rising malpractice suits against immigration lawyers, working with our office may be in the best interest of a client and their immigration lawyer. Whether criminal or immigration lawyer, we are here to assist you.
Everyone benefits when lawyers and clients have the best advice.