Representing the Foreign National in Criminal Court: Deportation Consequences of a Criminal Convict
Representing the foreign national client in criminal court presents a variety of challenges. First of all, the client may be in jeopardy of deportation if “convicted” of a criminal offense.1 Secondly, there can be problems providing effective attorney-client communications due to language barriers and the fact that the foreign national client is not familiar with the United States legal system.
Florida Rule of Criminal Procedure 3.172(c)(viii) states that a judge accepting a plea to a criminal offense, as part of the plea colloquy, has to inquire whether the defendant is a United States citizen and has to inform the defendant that the entry of the plea might lead to deportation. Failure of the court to so advise can be grounds to set aside the plea as not freely and voluntarily given.
As a consequence, most written plea forms used throughout the state have a provision that the defendant has knowledge that the entry of the plea may lead to deportation. It clearly is the fundamental responsibility of the defense counsel to completely advise the client concerning all aspects of the plea form. That cannot be accomplished in the context of deportation consequences without a working knowledge of certain aspects of immigration/deportation law.
The cultivation and development of effective attorney-client communications also is of critical importance when representing a foreign national in criminal court. Most foreign national clients are from countries with legal systems entirely different from the United States system. The most widely used legal system in the world is the civil law system as used in Europe and Asia. When representing a foreign national from a civil law country, it is helpful for the practitioner to have a basic knowledge of the differences between the American legal system and the civil law legal system. This knowledge will place counsel in a much better position to effectively communicate with the client.
This article will provide an overview of the current law concerning the deportation consequences of a criminal conviction for a foreign national client. Also discussed are the legalities of setting aside the guilty plea of a foreign national client if the sentencing judge fails to conduct a proper plea colloquy under the Florida Rules of Criminal Procedure. Lastly, the article will outline some areas of fundamental distinction between the American common law legal system and the civil law system in order to facilitate more effective attorney-client communications.
Deportation Consequences
of Criminal Conviction
Certain criminal convictions will render a foreign national client deportable under the Immigration and Naturalization Act (INA).2 The classification of different immigrant status is a complicated process. The different categories include legal permanent resident, nonimmigrant visa holder, and illegal alien.3 For the criminal defense counsel, specific knowledge of all the various categories is unnecessary. The most important thing to remember is that any client who is not a United States citizen is at risk of deportation as a result of certain criminal convictions.
After determining that the client is not a United States citizen, the next step is to establish whether the offense charged is a “deportable offense” within the federal law. The criminal provisions for deportation are codified at
8 U.S.C. §1251(a)(2) and §241(a)(2) of the Immigration and Naturalization Act. Additionally, the Anti-Terrorism and Effective Death Penalty Act of 19964 and the Illegal Immigration Reform and Immigration Responsibilities Act of 19965 also have potential deportation consequences for a foreign national convicted in criminal court.
The criminal deportation grounds fall within three principal categories: 1) general crimes; 2) controlled substances; and 3) firearms offenses and miscellaneous crimes.
General Crimes
• Misdemeanor offenses
Deportation for misdemeanor offenses occurs when the foreign national is convicted of two or more “moral turpitude” crimes not from a “single scheme of criminal misconduct.”6
When advising the foreign national client of deportation consequences of a misdemeanor conviction, it is essential to know the client’s prior record as well as the nature of the current charge. If the client has a previous misdemeanor conviction, it must be determined whether the prior is a “conviction” under the act and whether the crime is one of “moral turpitude.”
Under the Illegal Immigration Reform and Immigration Responsibilities Act of 1996 (IIRIRA), a conviction is defined as a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, when: 1) a judge or jury has found the alien guilty or has admitted sufficient facts to warrant a finding of guilt; and 2) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.7
The provisions of the IIRIRA mean that any plea of guilty or no contest by a foreign national client to a misdemeanor, regardless of whether adjudication is withheld, when the judge imposes any type of sentence, is going to meet the act’s definition of a “conviction.” Therefore, defense counsel is not protecting a client from deportation merely by obtaining a withhold of adjudication in a misdemeanor case.8
The definition of the term “moral turpitude” crime is unclear. Surprisingly, the INA and implementing regulations do not define the term. The Board of Immigration Appeals has held that a crime involving “moral turpitude” is “[i]nherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”
Crimes which courts have recognized as involving “moral turpitude” include murder, involuntary manslaughter, kidnapping, mayhem, assault, assault with a deadly weapon, rape, prostitution, lewdness, arson, blackmail, robbery, embezzlement, forgery, larceny, burglary, extortion, perjury, counterfeiting, mail fraud, and willful tax evasion.9
In determining whether a crime involves “moral turpitude” neither the immigration authorities nor the courts may go beyond the record of conviction to examine the circumstances under which the crime was committed. The determination must be made solely on the basis of the statutory definition of the crime and the record of conviction.10 Extrinsic evidence may not be considered in determining whether a crime involves “moral turpitude.”11 The question then is whether the inherent nature of the crime as defined by law and particularized in the charging document involves “moral turpitude.”12
In Florida, misdemeanor crimes that should send up a “red flag” for defense counsel to be acutely aware of deportation include prostitution, lewd and lascivious behavior, petit theft, bad checks, and child abuse. In any of those types of cases counsel should attempt to plea-bargain for the misdemeanor intervention program, or plea to a non-moral-turpitude crime.
In order to qualify for deportation on the basis of misdemeanor offenses the two convictions must not arise from “a single scheme of criminal misconduct.”13 This provision can give the well informed counsel an opportunity to prevent deportation when representing a foreign national client charged with two misdemeanor offenses. In such circumstances, counsel can word any plea agreement to stipulate that the two offenses do arise out of “a single scheme of criminal misconduct.” For example, a client charged with petit theft of two different retail stores could plea to both charges if it is stipulated in the plea agreement that the defendant’s actions were “a single scheme of criminal misconduct.” Prosecutors are not likely to object to the wording as it has no real effect on the actual plea. However, the details of the plea can have a profound impact on the client’s deportation status.
• Felony offenses
Foreign nationals who are convicted of felony offenses for a crime involving “moral turpitude” committed within five years after entry into the United States, for which a sentence of one year or longer may be imposed, are subject to deportation.14
The 1996 Terrorism Act drastically changed the length of sentence requirement.15 Before the Terrorism Act, for an alien to be deported a “moral turpitude” felony had to have included an actual sentence of confinement in a correctional institution of at least one year. Now the alien is deportable whenever a sentence of one year or longer may be imposed.16 Since all felonies in Florida are punishable by a prison sentence in excess of one year, it appears that a plea to any felony deemed to include “moral turpitude” will trigger deportation regardless of the sentence actually imposed.
The definition of “moral turpitude” in the felony case is the same as in misdemeanor cases. However, it is important to note that a far greater percentage of felony offenses are subject to being categorized as involving “moral turpitude.” It is a wise practice for a defense counsel to assume that any felony can possibly lead to deportation, and special effort should be made to plea to a reduced misdemeanor that is safely within the “non-moral-turpitude” misdemeanor offenses category. It is far more advantageous for a foreign national client charged with a felony involving “moral turpitude,” even when the score sheet places him in the probation category on the felony charge, to plea to a six-month jail sentence on a reduced misdemeanor. The client will serve six months in jail but he will avoid deportation. Those are the types of strategic decisions the well informed criminal practitioner can accomplish with working knowledge of the basic deportation laws.
• Aggravated felonies
The “aggravated felony” category with special deportation procedures dates from 1988 and was one of the most significant changes in the law of deportation.17 The most critical provision of the law, and the one with potential grave consequences for the foreign national client, is that an alien becomes deportable if convicted of an “aggravated felony” at any time after entry into the United States.18 The “moral turpitude” felony conviction does not require deportation if committed more than five years after entry into the United States. In contrast, “aggravated felony” convictions lead to deportation no matter how long the foreign national has been in the United States before the conviction.
An “aggravated felony” includes a conviction of murder, drug trafficking, firearms trafficking, money laundering, and certain crimes of violence.19 Crimes of violence are those offenses listed in 18 U.S.C. §16 for which the term of imprisonment is at least five years.
The “aggravated felony” category was expanded by §22 of the Immigration and National Technical Corrections Act of 1994.20 Under the act, aggravated felonies now include certain crimes involving RICO, theft and burglary, child pornography, prostitution, alien smuggling, sabotage and treason, firearms, and other violations.21
Special immigration restrictions apply to aggravated felons. The Attorney General must place aggravated felons in custody if they are released from confinement and aggravated felons must meet stricter standards to be released from custody pending a determination of deportability.22 also, aggravated felons who are deported are excludable from the United States for 20 years, rather than the five-year ban normally applied to the deportee.23
As the severity of the crime charged increases, the deportation consequences of a conviction also magnifies. Obviously, a foreign national charged with an “aggravated felony” has the immediate concern of a lengthy prison term in the United States. Counsel should make every effort to plea-bargain the client out of the “aggravated felony” category.
Drug Crimes
A foreign national client will face deportation for any crime, misdemeanor, or felony involving the possession, manufacturing, or sale of any illegal narcotic.24 Any client who after admission or entry is convicted of a violation of, or conspiracy or attempt to violate, any law or regulation of a state, the United States, or a foreign country relating to a controlled substance as defined in §102 of the Controlled Substances Act is subject to deportation.25 The lone exception is when a foreign national has one conviction for simple possession of 30 grams or less of marijuana.26
Immigration laws contain special provisions concerning the impact of expunction of criminal drug convictions. In cases involving narcotics and marijuana unconditional pardons, erasures of criminal records, expunction, annulment of records, or destruction of records do not affect deportation.27 Therefore, state expunction statutes of general applicability have been held not to insulate a narcotics offender from sanctions of deportation. Furthermore, an alien who is convicted of a drug offense is subject to removal even though the conviction is expunged under state law allowing for setting aside a plea of guilty, the entry of a plea of not guilty, and the dismissal of the indictment or information upon fulfillment of conditions of probation.28 Even an absolute unconditional pardon from the Governor will not stop the deportation of a foreign national convicted of a drug offense.
In reviewing the above stated law concerning the deportation of a foreign national client it is easy to see why many scholars consider narcotics cases as the most damning conviction under the immigration laws. However, the perils of representing the foreign national for narcotics violations extend far beyond mere convictions. Under federal law, any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.29 Drug addiction is defined under 42 U.S.C. §201 as a person who has “lost the power of self control” over the addiction, or whose habitual use poses threat to the public morals, health, safety, or welfare. However, a mere user is not an addict.
Firearms Offenses and Miscellaneous Crimes
Firearms and weapons offenses are covered by 8 U.S.C. §1251(a)(2)(c). It lists the deportable offenses in that category as felony possession of a firearm or ammunition, possession of a firearm or ammunition by an illegal alien, or possession of a stolen firearm or ammunition.
The Immigration and Nationality Technical Corrections Act expanded the definition of “aggravated felony” to include “illegal trafficking in firearms or destructive devices by aliens.”30 Thus, for those types of offenses, counsel will have to traverse the minefield of Florida’s three-year mandatory minimum prison term for felonies involving firearms as well as balance the deportation consequences of a conviction.
Under “deportable miscellaneous crimes,” one of the most expansive areas is crimes involving domestic violence. The Immigration Act of 1996 adds crimes of domestic violence, stalking, child abuse, and child neglect or child abandonment to the grounds for deportation.31 Even a dependency action brought against a foreign national by the Department of Children and Family Services can lead to deportation if the child abuse or abandonment is alleged in the petition. Also, the basic divorce case can have deportation consequences when a spouse violates a domestic violence injunction.
Setting Aside Criminal Conviction for Foreign Client
On occasion, defense counsel may represent a foreign national client who has already entered a plea of guilty or no contest to a “deportable offense.” In those circumstances, representation will include an evaluation of the plea to determine whether it was freely and voluntarily given. Rule 3.172(c) of the Florida Rules of Civil Procedure mandates eight separate areas of inquiry for the sentencing judge to utilize during the plea colloquy to ensure the plea is free and voluntary. The relevant area of inquiry for the foreign national client is contained in §3.172(c)(8) which states:
That if she or he pleads guilty or nolo contendere, the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Services. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as the admonition shall be given to all defendants in all cases.
It is incumbent upon defense counsel when representing a foreign national who has pleaded to a “deportable offense” to order the transcript of the plea colloquy and determine whether the sentencing judge properly advised the client that the plea may subject the client to deportation pursuant to the laws and regulations governing the U. S. Immigration and Naturalization Services. If the transcript shows that the sentencing judge did not so advise, then counsel must evaluate the legal consequences of the breach of Rule 3.172(c).
The failure of the sentencing judge to inform a foreign national client that the plea may subject him or her to deportation is not, in of itself, enough to allow for a withdrawal of the plea. A showing of prejudice is required under Rule 3.172(1) of the Florida Rules of Criminal Procedure.32 Several Florida cases have visited the issue of the standard of prejudice required in order to set aside the plea due to the failure of the court to advise the defendant of deportation consequences.
In the 1996 case of Perriello v. State, 684 So. 2d 258 (Fla. 4th DCA 1996), the Fourth District Court of Appeal held that a defendant was prejudiced by the trial court’s failure to warn him of the deportation consequences of his plea. The facts of the case are instructive not only to enhance counsel’s knowledge of the legalities of withdrawing a plea obtained in violation of Rule 3.172(c), but also to illustrate the potentially devastating consequences of the uninformed entry of a plea by a foreign national client.
Albina Perriello, an Italian citizen, was a 45-year-old immigrant who came to live in the United States at the age of 12.33 After living as a permanent legal resident in the United States for 32 years, he was charged with the offense of capital sexual battery.34 He entered a plea to a reduced charge of lewd and lascivious or indecent acts.35 After his conviction, the Immigration and Naturalization Service instigated deportation proceedings against him.36 The record established that during the plea colloquy the sentencing judge did not warn Mr. Perriello of the deportation consequences of the plea.37 The court held that threatened deportation resulting from a plea is a sufficient prejudice to meet the requirement of Rule 3.172.38 Additionally, the court ruled that the signing of a written plea form which mentions understanding of deportation consequences does not meet the requirements of the rule.39 The court must inform the defendant of deportation consequences in an oral plea colloquy to comply with the rule.40
The Perriello case exemplifies the critical importance of counsel’s understanding of the deportation consequences for a foreign national of entering a plea to a deportable criminal offense. Apparently, Mr. Perriello entered a plea to a reduced charge without any knowledge of deportation consequences. This led to instigation of deportation proceedings against a permanent resident who had lived in the United States for 32 years. Mr. Perriello was very fortunate that his plea was set aside.
Similarly, in Hen Lin Lin v. State, 683 So. 2d 1110 (Fla. 4th DCA 1996), the Fourth District Court of Appeal held that use of a written plea form which notes the possibility of deportation does not comply with Rule 3.172(c)(8) absent an oral plea colloquy informing the defendant of the possible deportation consequences of a plea.
Other district court cases in the state have not been as accommodating to foreign national clients who have pleaded guilty to deportable offenses without benefit of a proper plea colloquy from the court. In Chaar v. State, 685 So. 2d 1037 (Fla. 3d D.C.A. 1997), the Third District Court of Appeal upheld a plea of nolo contendere to possession of cocaine and drug paraphernalia charges even though the sentencing judge did not inform the defendant that the plea could have deportation consequences. The court reasoned that since Mr. Chaar voluntarily left the country under the threat of deportation, it was his own decision rather than a direct consequence of the plea.41
Another case adverse to the interests of a foreign national attempting to set aside a criminal conviction is Ross v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998). In that case, the defendant alleged that the sentencing judge did not properly advise him of the deportation consequences of his plea. However, the court ruled that since the transcript of the proceedings was lost, the defendant was precluded from asserting that claim.42 Furthermore, the court held that Ross would not only have to assert “he would not have entered into the plea agreement, but in addition, that had he gone to trial, he probably would have been acquitted.”43
As a result of the rules of law concerning setting aside a criminal conviction, outlined in the above cases, counsel should take the following steps in representing a foreign national client who has entered a plea to a “deportable offense”:
1) Order and review the transcript of the plea colloquy to determine if the sentencing judge informed the client of the deportation consequences as required in Rule 3.172(c)(8).
2) If the sentencing judge did not so apprise the defendant, file a motion to withdraw or set aside the plea as not freely and voluntarily given.
3) At the hearing, be prepared to prove with ample documentation that as a direct consequence of the plea, the client is under threat of deportation. That proof should satisfy the prejudice requirement of Rule 3.172(i).
Communicating with Foreign National Clients
Representing a foreign national client for a criminal offense carries special challenges for defense counsel. There often are language barriers which can infringe on effective attorney-client communication. However, perhaps the most significant and least recognized dilemma is that the foreign national client likely originates from a country whose legal system is drastically different from the United States legal system.
In order to facilitate more effective attorney-client communications, it is a wise practice for the defense counsel to gain an appreciation of the basic differences between the United States legal system and those used in other countries. This will serve as a basis for counsel to focus on critical areas of distinction in order to fully explain to the foreign national client all the rights granted a defendant in the United States legal system. This information will afford opportunity for the foreign national client to reach a more fully informed decision as to whether to plea or proceed to trial on the case.
The civil law system is the most commonly used legal system in the world. Most foreign national clients come from countries which employ the civil law system. Two of the most important distinctions between the civil law system and the American common law system in the area of criminal law are the availability of a jury trial and the role of the judge.
• Availability of jury trial
The vast majority of civil law countries do not utilize jury trials in criminal cases.44 Instead of the jury, cases are tried by a “mixed court” composed of a panel of professional and lay judges.45 The votes of the lay judges have the same weight as those of the professional judges.46 In contrast to the American system, unanimity is not required for a verdict.47 For example, in Germany a two-thirds majority is required for a decree that disadvantages the accused in a criminal trial with respect to the verdict or sentence.48
Lay judges are selected for a specific term, often four years, in which they hear a number of cases, sitting for several days a year.49 There is no right to “peremptory challenges” to either professional or lay judges.50 Therefore, in civil law countries there is no extensive process analogous to voir dire in the United States.51
Since civil law countries don’t utilize jury trials in criminal cases, it is important for counsel to explain to the foreign national client that unique American right. Care should be taken to inform the foreign national client of how the jury is selected and the role of the jury. It should be stressed to the client that the jury, not the judge, will be deciding the facts of the case. Only then will the foreign national client be in a position to assess whether he or she wants to take the case to a jury trial.
• The role of judges
The role of the judge in the civil law system is quite distinct from the judge’s role in the American system. Apart from deciding the merits of the case without the benefit of a jury, a trial court in the civil law system also conducts the trial and discovery of evidence differently. It is said that trial judges in civil law countries are “inquisitorial” compared to their American counterparts.52 This means, unlike the American system, judges in the civil law system actively participate in the questioning of witnesses and generally take a more active role in “fact gathering.” For example, in Germany the trial judge has the responsibility of determining the order of proof, examining the witnesses, creating a short record of witness testimony, and securing the testimony of expert witnesses if necessary.53 In France, the presiding judge calls the witnesses that the parties have designated in advance.54 The presiding judge often summarizes the evidence prior to the start of deliberations.55 Therefore, there is less partisan participation, examination, and cross-examination of witnesses. As a result some commentators have concluded that in civil law countries the trial process is less adversarial than in the United States with respect to the “fact finding” function.56
In explaining the differing roles of judges and discovery process to the foreign national client, it is important to emphasize that a defendant in the American system has greater latitude to discover and present evidence in court. An American defendant has the right to take sworn depositions of all state witnesses and to have counsel fully cross-examine all witnesses called to testify at trial. Those rights do not exist or are very limited in civil law countries. The foreign national client will be unaware of these important rights unless informed during attorney-client consultation.
Conclusion
The representation of a foreign national client requires that the defense counsel learn the basic laws concerning the deportation consequences of a conviction. Armed with that information, counsel can effectively represent the best interests of his or her client. Knowledge in this area will enable the defense counsel to engage in “the preventative practice of law” and shield the foreign national client from the devastating consequences of ignorance—deportation from the United States. q
1 8 U.S.C. §§1101 et seq. (1994).
2 8 U.S.C. §1104 (1994).
3 See 8U.S.C. §1251(a) (1994).
4 Pub. L. No. 104-132, 110 Stat. 1214.
5 Pub. L. No. 104-302, 110 Stat. 3656.
6 8 U.S.C. §1251(a)(2)(A)(ii); INA §241(a)(2)(A)(ii).
7 Pub. L. No. 104-302, 110 Stat. 3656.
8 Id.
9 See Dan Kessel Brenner & Lory D. Rosenberg, Immigration Law & Crime, App. E. (1995) (lists the different immigration court decisions defining which given crime is one of moral turpitude.)
10 See Valenti v. Karmath, 1 F. Supp. 370 (N.D.N.Y. 1932); Hirsch v. Immigration and Naturalization Service, 308 F.2d 362 (9th Cir. 1962).
11 See Hirsch, 308 F.2d at 362.
12 See Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933); Manzella v. Zimmerman, 72 F. Supp. 534 (E.D. Pa. 1947).
13 See Pacheco v. Ins., 546 F.2d 448, 452 (1st Cir. 1976) (“Single scheme” is determined by a “temporary intragrated episode of continuous adversity” with no interruption that would allow the alien to consider his conduct).
14 8 U.S.C. §1251(a)(2)(A); INA §241(a)(2)(A).
15 Pub. L. No. 104-132, 435(b) (amending 8 U.S.C. §1251(a)(2)(A)(i)(III)).
16 Id.
17 Pub. L. No. 104-302.
18 Id.
19 8 U.S.C. §1101(a)(43).
20 Pub. L. No. 104-308 (1994).
21 Id.
22 Id.
23 Id.
24 21 U.S.C. §802.
25 Id.
26 INA §212(h); U.S.C. §1182(h) (1994).
27 Matter of Golsham, I & N Dec. 92, 1981 WL 158828 (BIA 1981).
28 See Tsimbidy-Rachu v. Immigration and Naturalization Services, 414 F.2d 797 (9th Cir. 1969); Garcia-Gonzales v. Immigration and Naturalization Service, 344 F.2d 804 (9th Cir. 1965).
29 8 U.S.C. §1227(a)(2)(B)(ii).
30 Pub. L. No. 104-302.
31 Id. at §350.
32 Fla. R. Crim. P. 3.172(i) (“failure to follow any of the procedures in this rule shall not render a plea void absent a showing of prejudice”).
33 Perriello, 684 So. 2d at 258.
34 Id.
35 Id.
36 Id.
37 Id. at 259.
38 Id.
39 Id.
40 Id.
41 Chaar, 685 So. 2d 1037.
42 Ross, 705 So. 2d at 1059, 1061.
43 Id. at 1059, 1063.
44 See Hans-Heinrich Jescheck, Principles of German Criminal Procedure in Comparison with American Law, 56 Va. L. Rev. 239, 243–44 (1970).
45 See Gordan Van Kessel, Adversary Excesses in the American Criminal Trial, 67 Notre Dame L. Rev. 403 (1992).
46 See John H. Langbein, Mixed Court and Jur. Court: Could the Continental Alternative Fill the American Need?, Am. B. Found. J. 195 (1981).
47 See Van Kessel, supra note 45.
48 See Langbein, supra note 46.
49 See id. at 206.
50 See Van Kessel, supra note 45, at 443.
51 Id.
52 See Langbein, supra note 46, at 828.
53 See John C. Reitz, Why We Probably Cannot Adopt the German Advantage in Civil Procedure, 75 Iowa L. Rev. 987 (1996).
54 See Edward A. Thomlinson, Non Adversarial Justice: The French Experience, 42 Md. L. Rev. 131 (1983).
55 Id.
56 Langbein, supra note 46, at 834.
