Sometimes, after a defendant has been arrested for a crime, an Immigration and Customs Enforcement (ICE) officer will file an immigration detainer with the agency that has custody of the defendant. The detainer asks the agency to notify ICE when the defendant would otherwise be eligible for release — for example, because the defendant has posted bond, or because the charges against the defendant have been dismissed — and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant. I have often wondered about the authority for holding a defendant pursuant to such a detainer. Recent developments indicate that courts are increasingly wondering about that too. Continue reading
Tag Archives: immigration
Prosecutors have wide discretion to decide how to charge defendants. In exercising that discretion, a prosecutor certainly may consider the sentence associated with each possible charge, and may choose to pursue the charge or charges that is most likely to result in the outcome that the prosecutor sees as just. But the criminal sentence may not be the only outcome of a criminal case. A variety of collateral consequences may be imposed by law, such a change in immigration status, a requirement to register as a sex offender, or loss of professional licensure. Other consequences may also follow certain convictions, such as loss of employment or housing. May prosecutors consider collateral consequences when making charging decisions and when evaluating possible plea bargains? Should they do so? Must they? Continue reading →
The title I gave this post is actually not quite accurate. Five years ago, in its 2010 decision in Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court established that criminal defense attorneys have an obligation, as part of the Sixth Amendment guarantee of effective assistance of counsel, to advise noncitizen clients about the immigration consequences of the criminal charges against them. In its recent decision in State v. Nkiam, ___ N.C. App. ___ (Nov. 3, 2015), temp. stay allowed, ___ N.C. ___ (Nov. 23, 2015), the North Carolina Court of Appeals found that the defendant’s counsel failed to meet this obligation. Although Nkiam seems like a straightforward application of Padilla, it has caught people’s attention because it is the first North Carolina appellate decision to address the merits of a Padilla claim of ineffective assistance of counsel. (In previous cases, the North Carolina Court of Appeals found it unnecessary to address the merits of the defendant’s claim, holding that Padilla did not apply retroactively and did not afford relief to a person whose conviction was final before Padilla was decided. State v. Alshaif, 219 N.C. App. 162 (2012); accord Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103 (2012).) Continue reading →
In the last in this series of posts on pretrial release I’ll address two issues that continue to create problems for judicial officials: defendants who refuse to identify themselves and setting conditions for noncitizens.
Defendants Who Refuse to Identify Themselves
Sometimes defendants refuse to identify themselves. Without knowing a defendant’s identity, it is almost impossible for a judicial official to determine what conditions of pretrial release should be imposed. The judicial official will not be able to determine, among other things, whether the defendant has a record, has previously failed to appear, or what connections the defendant has with the community that are relevant to flight risk.
If the relevant local policy does not address the situation, a judicial official probably may delay the initial appearance while a law enforcement officer completes an investigation into the defendant’s identity. Such an investigation may not be feasible in all cases, particularly when the crime is not a serious one. Note, however, that if a person (1) is charged with an offense involving impaired driving, as defined in G.S. 20-4.01(24a), or driving while license revoked when the revocation is for an impaired driving revocation, as defined in G.S. 20-28.2, and (2) cannot be identified by a valid form of identification, then the arresting officer must have the person fingerprinted and photographed. G.S. 15A-502(a2). This requirement does not necessarily result in an identification of the person, but it does impose additional duties on law enforcement. If the judicial official delays the initial appearance to allow the officer to investigate and the officer’s investigation is unsuccessful or cannot be done quickly, the judicial official should consider the other option set out below; a judicial official should not allow an indefinite delay of the initial appearance.
A second option for dealing with a defendant who refuses to identify himself or herself is to hold the initial appearance, set conditions in light of the potential flight risk associated with a person who will not identify himself or herself, and include as a condition of pretrial release that either the defendant adequately identify himself or herself or that there is an adequate identification of the defendant.
Regardless of which procedure is used, it is probably not permissible and it is not advisable to require a defendant to produce a United States government-issued picture identification. Also, any reasonable form of identification may be satisfactory even if the defendant does not have any written form of identification—for example, when a responsible member of the community vouches for the defendant’s identity.
Noncitizens and Pretrial Release
A judicial official has no authority to hold an arrestee simply because he or she is not a United States citizen. G.S. 162-62 (as amended by S.L. 2010-97) provides that whenever a person charged with a felony or an impaired driving offense is confined to a jail or a local confinement facility, the person in charge of the facility must attempt to determine if the prisoner is a legal resident of the United States by questioning the person and/or examining documents. If the prisoner’s status cannot be determined, the person in charge must, if possible, make an inquiry to the Immigration and Customs Enforcement of the United States Department of Homeland Security (ICE). However, G.S. 162-62 also provides that it cannot be construed to deny bond to a prisoner or prevent the prisoner from being released from confinement when the prisoner is otherwise eligible for release. Of course, citizenship status may be relevant in determining conditions of pretrial release, such as when the arrestee has no contacts in the community and was planning on returning to his or her home country shortly, thus creating a flight risk.
Another immigration issue sometimes arises when the arresting officers informs a judicial official that there is an ICE detainer or that ICE is “interested” in the defendant. One of ICE’s responsibilities is detaining and removing noncitizens who are not legally present in the country. An ICE detainer refers to a document issued by ICE, frequently to a local jail, asking the jailer to hold a person for up to forty-eight hours so that ICE can take custody of that person. For example, suppose a defendant is in jail on a $5,000 secured bond. Normally, when the defendant is able to make that bond, he or she must be released. However, if an ICE detainer is in place, the jailer will hold the defendant for up to forty-eight hours after the defendant makes bond so that ICE can take custody. When an officer brings a defendant to a judicial official and an ICE detainer is in place, the judicial official should follow the normal procedure for conducting the initial appearance and setting conditions of pretrial release. There is no special hold to implement, and the judicial official is not authorized to hold the defendant. The detainer is in place, and if the defendant meets his or her conditions of pretrial release, the jail will hold the defendant per the detainer. However, the fact that a detainer is in place may affect the judicial official’s decision about appropriate conditions. For example, if the defendant is facing deportation, there may be an elevated flight risk.
Likewise, when an officer brings a defendant to a judicial official and informs the official that ICE is “interested” or is “investigating whether a detainer should issue,” the official should follow the normal procedure for conducting an initial appearance and setting conditions of pretrial release. There is no special hold to implement, and the official is not authorized to hold the defendant for this purpose. However, in this situation the official may learn of facts that will be relevant to the determination regarding the appropriate conditions of pretrial release.
In a post here [editor’s note: the post shows up with my picture for technical reasons, but it was written by Sejal Zota], a former colleague discussed Padilla v. Kentucky, 130 S. Ct. 1473 (Mar. 31, 2010), a U.S. Supreme Court decision dealing with ineffective assistance of counsel in connection with advice regarding the immigration consequences of a plea. In Padilla, after pleading guilty to a charge of transporting a large amount of marijuana, the defendant, a lawful permanent resident of the United States for more than forty years, faced deportation. He challenged his plea, arguing that his counsel rendered ineffective assistance by failing to inform him that the plea would result in mandatory deportation and by incorrectly informing him that he did not have to worry about his immigration status because he had been in the country for a long time. The Court concluded that when, as in the present case, “the deportation consequence [of a plea] is truly clear,” counsel must correctly inform the defendant of this consequence. However, the Court continued, where deportation consequences of a plea are “unclear or uncertain [t]he duty of the private practitioner . . . is more limited.” It continued: “When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” The Court declined to rule whether the defendant was prejudiced by his lawyer’s deficient conduct.
Padilla has generated a lot of post-conviction litigation nationally. And in North Carolina it’s no different—numerous motions for appropriate relief have been filed alleging that counsel was ineffective under Padilla by failing to properly advise defendants regarding the immigration consequences of their pleas. For defendants whose convictions became final prior to Padilla, retroactivity is a preliminary issue presented by those motions. As I discuss in more detail in a bulletin available here, under federal law a new rule of criminal procedure does not apply retroactively unless it is a watershed rule of criminal procedure. Put in visual form, retroactivity analysis for Padilla follows this path:
A number of courts in other jurisdictions have addressed the issue of whether Padilla is retroactive and a split of authority is emerging at the appellate level. Compare United States v. Hong, __ F.3d __, 2011 WL 3805763 (10th Cir. Aug. 30, 2011) (Padilla is a new rule but not a watershed rule and thus is not retroactive), and Chaidez v. United States, __ F.3d __, 2011 WL 3705173 (7th Cir. Aug. 23, 2011) (as a new rule, Padilla is not retroactive; because the parties agreed that the rule was not a watershed rule of criminal procedure, the court did not address that issue), with United States v. Orocio, 645 F.3d 630 (2d. Cir. 2011) (Padilla is not a new rule and thus applies retroactively), and Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011) (same). The North Carolina appellate courts have not yet dealt with the issue. But given the post-conviction motions before the trial bench, it is only a matter of time before we see a decision. When we do, I’ll post an update.
The State House of Representatives recently passed H 33, “An Act to Provide that Certain Consulate or Embassy Documents May Not be Used to Determine a Person’s Identification or Residence for Governmental and Law Enforcement Purposes.” Among the provisions the bill would amend if enacted is G.S. 20-7(b4), which currently permits the North Carolina Division of Motor Vehicles (NCDMV) to rely on consular documents as proof of North Carolina residency. Other types of documents that may be used to establish residency for driver’s license purposes include pay stubs, utility bills, bank statements, and rental contracts.
While H 33, which was supported by the Americans for Legal Immigration PAC, has stirred debate (see news reports here, here and here) on the issue of unauthorized immigration, it does not purport to regulate immigration—the exclusive province of the federal government. Moreover, the law does not affect the ability of unauthorized immigrants to obtain a North Carolina driver’s license. Unauthorized immigrants already are ineligible to obtain a North Carolina driver’s license, learner’s permit, or identification card. This has been the case since enactment of the 2006 Technical Corrections Act, which eliminated a provision that allowed NCDMV to issue driver’s licenses to people providing an Individual Taxpayer Identification Number in lieu of a Social Security number. The requirement that a license applicant provide a valid social security number removed people without such numbers, and consequently all unauthorized immigrants, from the people eligible to obtain a North Carolina driver’s license. The only statutory exception to this requirement applies to an applicant who presents valid documentation issued by, or under the authority of, the U.S. government that proves his or her legal presence of limited duration in the United States. NCDMV must issue to an applicant who presents such valid documentation and meets other licensing requirements a license of limited duration, which may not expire later than the expiration of the authorization of the applicant’s legal presence in the United States. See G.S. 20-7(f)(3).
Thus, G.S. 20-7 groups driver’s license applicants into two categories: those who have Social Security numbers and those who have legal presence of limited duration. There is, however, a third group of applicants who may not be included in either statutory category. Some immigrants, such as lawful permanent residents and refugees, are authorized to remain in the United States permanently, but may not have Social Security cards. Although NCDMV includes documents establishing permanent legal status among the documents that it accepts as establishing a legal presence of limited duration, immigrants with permanent legal status are issued driver’s licenses of regular duration (that is, five or eight years, depending on the applicant’s age) regardless of whether such persons also have a Social Security Card.
If you’d like to know more about North Carolina’s Driver’s License requirements and their history and relation to the REAL ID act of 2005, you can read more here.
I’ve been busy with New Prosecutors’ School this week. Working on the course, which we co-sponsor with the Conference of District Attorneys, is one of the best parts of my job. I’m always inspired by the enthusiasm, dedication, and professionalism of the assistant district attorneys who attend the school.
Even though my full attention has been occupied by new prosecutors, the world of criminal law hasn’t stood still. A few news items that may be of interest:
1. I posted here about the possible criminal implications of Gizmodo’s purchase of a prototype of Apple’s next-generation iPhone. Since then, a criminal investigation has, in fact, begun. The basics are in this New York Times story. Some interesting legal issues surrounding the authorities’ seizure of computers belonging to one of Gizmodo’s editors are discussed in this post on the Volokh Conspiracy.
2. As most readers of this blog are probably already aware, Arizona has enacted a new law targeting illegal immigration. A New York Times story about the measure is here. Among other things, it requires officers to investigate when they have reason to suspect that an individual is in the United States illegally. The law has been enormously controversial, with some suggesting that it will deepen racial divides and others — like this columnist — arguing that immigration is a federal matter that should not be addressed by the states. Still others, like George Will, have argued that the law is a reasonable and lawful response to the federal government’s failure to respond effectively to illegal immigration. It appears that North Carolina may have nearly as many illegal immigrants as Arizona, so it is easy to imagine this issue resonating here.
3. Methods of execution continue to be in the news. Sentencing Law and Policy reports that an execution in Utah, in keeping with the preferences of the condemned, is scheduled to be carried out by firing squad. Meanwhile, Crime and Consequences notes that California is considering a bill that would follow Ohio’s lead in adopting a single-drug protocol.
4. Other stuff that some might find noteworthy: federal prosecutors have reportedly opened an inquiry into the conduct of Wall Street firm Goldman Sachs; the Wall Street Journal published an article about how prison “wardens nationwide are offering inmates the chance to order meatball subs, cheeseburgers, chicken parmesan” and other goodies from Aramark Corp., in exchange for a cut of the revenues; and finally, a kid in Rotterdam, Holland, got caught doing 100 m.p.h. in a 50 m.p.h zone and had his dad’s car seized as a result . . . and the car is a $2.4 million Bugatti Veyron. Sorry, dad!
by School of Government Immigration Law Specialist Sejal Zota
Is defense counsel constitutionally obligated to inform a noncitizen criminal defendant whether his guilty plea carries a risk of deportation? Yesterday, the United States Supreme Court said yes in a case called Padilla v. Kentucky.
In Padilla, the petitioner—a lawful permanent resident (green card holder) for over 40 years and Vietnam veteran—faced drug-distribution charges in a Kentucky trial court. His attorney advised him to plead guilty in exchange for a lighter sentence and not “to worry about [deportation] since he had been in the country so long.” Padilla took this advice. When he learned that his lawyer’s immigration advice was wrong and he would face deportation for his conviction, he sought to overturn it by arguing that he would have gone to trial but for counsel’s incorrect advice. The Supreme Court of Kentucky rejected his claim, holding that advice about deportation is a “collateral consequence” of conviction, and outside the scope of representation required by the Sixth Amendment.
Holding that deportation is an integral part of the penalty that may be imposed on noncitizen criminal defendants, the United States Supreme Court reversed. The Court found that the protections of Strickland v. Washington, 466 U.S. 688 (1984)—which entitle criminal defendants to effective assistance of counsel before deciding to plead guilty—apply to advice regarding deportation. The Court also found the Kentucky court’s distinction between direct and collateral consequences was beside the point.
In evaluating Padilla’s ineffectiveness claim, the Court found that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms—“This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could be easily determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.” Clear and unambiguous immigration law made the crime of drug distribution to which Padilla pled guilty a basis for deportation of noncitizens because it relates to a nontrivial possession of a controlled substance.
The Court’s ruling yesterday did not wholly resolve Padilla’s claim. The Court declined to address whether he had been prejudiced by his attorney’s actions and remanded for further proceedings. In assuaging a “floodgates” concern, the Court held that to establish prejudice, a reviewing court must be convinced that a petitioner’s decision to reject a plea bargain would have been rational under the circumstances.
What’s interesting about this case is the Court could have limited the holding to “affirmative misadvice”— finding representation may be constitutionally deficient only when defense counsel actually provides advice about deportation and that advice is patently wrong. Before yesterday, many state and federal courts had long held such a view. But instead, the Court’s ruling recognized the seriousness of deportation as a consequence of a criminal plea, and now obligates defense counsel to inform noncitizen clients about the risk of deportation. The Court has given defense counsel across the Nation an important responsibility that many had already undertaken in cooperation with immigration attorneys. But it will not always be an easy task.
“When the deportation consequences are truly clear, the duty to give correct advice is equally clear.” As someone who regularly consults in this area, I can tell you that determining deportation consequences can be complex stuff. Deportation may depend on various factors such as a client’s immigration status; the length of sentence; whether the state offense falls under broad grounds of deportation like crimes involving moral turpitude, whether a state disposition will be treated as a conviction for immigration purposes … you get the picture. It may often be the case that the deportation consequences of a particular plea are unclear to defense counsel. In those instances, the Court places a lesser burden on defense counsel: when the deportation consequences of a particular plea are unclear or uncertain, “defense counsel need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”
Fortunately, many defender offices around the country, including in North Carolina, are ahead of the curve. Many already train staff on immigration consequences with the help of networks of experts. Foreshadowing the Padilla decision, the School of Government has already published a manual on the Immigration Consequences of a Criminal Conviction in North Carolina. It appears that the manual may become required reading for the criminal defense bar. I am also available to help public defenders and assigned counsel determine the immigration consequences of convictions.
Crime victims who aren’t citizens may be reluctant to come forward, particularly if they are in the United States illegally. Congress attempted to address this problem in 2000, by creating a special category of temporary visa for crime victims who assist authorities in investigating and prosecuting those who victimized them. These visas, called U visas, have not been widely used, as I noted in this blog post. I suspect that’s partly due to uncertainty about how the visas work and about who has the authority to certify that the non-citizen has been helpful to authorities.
I am therefore thrilled to announce that the School of Government’s immigration law guru, Sejal Zota, has published a new paper on U visas. It’s entitled Law Enforcement’s Role in U Visa Certification, and it’s available as a free download here. It’s a must-read for law enforcement officers and prosecutors who are involved in cases with non-citizen victims, as well as for immigration lawyers and others who might be called on to represent such victims.
The Supreme Court (Washington, not Raleigh) has had a bit of a slow February so far, whether because of Justice Ginsburg’s well-publicized health problems or for some other reason. Still, it’s done a couple things of interest to criminal lawyers.
First, it adopted a broad interpretation of 18 U.S.C. 922(g)(9), which prohibits people who have been convicted of misdemeanor domestic violence crimes from having guns. The issue before the Court was whether domestic violence must be an element of the prior offense for the statute to apply, or whether someone who was convicted of, say, simple assault as a result of an episode of domestic violence was also covered by the statute. In United States v. Hayes, opinion here, the Court held that domestic violence need not be an element of the offense, so long as the government can prove beyond a reasonable doubt that the conviction was as a result of domestic violence. Interestingly, Chief Justice Roberts and Justice Scalia dissented, arguing that the statute is ambiguous and that the rule of lenity favors a narrower interpretation.
Second, it granted certiorari in Padilla v. Kentucky, where the issue is whether erroneous advice about the collateral immigration consequences of a criminal conviction constitutes ineffective assistance of counsel. If there are any defense attorneys out there who aren’t already attuned to importance of thinking about immigration consequences of criminal proceedings, this should be your wake-up call.
Finally, it heard oral argument in Flores-Figueroa v. United States, another case that is of particular importance to those who deal regularly with undocumented immigrants. The issue in that case is whether the federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), applies to someone who uses identifying information, like a Social Security number, that they make up out of whole cloth but that turns out to belong to someone else. In other words, they know it’s not theirs, but they don’t know whose it is, or whether it’s anyone’s. Undocumented immigrants are particularly likely to do this, usually in order to appear eligible for employment, and the case before the Court in fact involved such a defendant. News reports of the oral argument, like the one available here, suggest that the Court was skeptical of the government’s position, but trying to guess how the Court will rule from a news report is like playing baseball while blindfolded.
Expect a lot more from the Court over the next couple of months. I’ll keep you posted.