There are many collateral consequences to criminal convictions in California, such as barriers to employment, housing, and social services. An additional concern that criminal defense attorneys should consider when advising their clients is the possible immigration consequences of their conviction.
Under current immigration laws, even legal permanent residents can face deportation and bars on reentry following a conviction for a low-level drug offense.
A deportation order following a conviction can have a devastating impact on families, leaving children without parents and families without a primary income, and barring the deported person from returning to their family home in the United States.
While the immigration system is not designed to augment judicial sentencing decisions the immigration results can be punitive and are not only reserved for what the criminal justice system would consider serious offenders.
For example, under immigration law “aggravated felonies” include many traditionally non-violent offenses:
- Tax fraud of over $10,000
- Misdemeanor burglary
- Possession of drug paraphernalia
- Misdemeanor grand theft
- Possession of narcotics for sale
Additionally, for certain conduct-based crimes a conviction is not always necessary to initiate deportation proceedings.
For undocumented immigrants, just being arrested could expose them to deportation proceedings regardless of their guilt or innocence. Criminal defense attorneys and the court have a duty to consider the immigration consequences of criminal convictions and advice the defendant accordingly when making decisions about their case.
These immigration consequences apply for undocumented immigrants, non-resident aliens such as foreign employees and visiting students, and green card holders alike.
The laws are contrary to criminal justice priorities that focus on high-risk serious and repeat offenders, and contrary to Immigration and Customs Enforcement (ICE)’s stated priorities that include “the removal of criminal aliens, those who pose a threat to public safety, and repeat immigration violators.” The Center for Juvenile and Criminal Justice recently studied these priorities in practice, concluding that based on available data “immigration enforcement policy is irrationally applied in that it targets, holds, detains, and deports undocumented immigrants without regard for their dangerousness.”
Regardless of their immigration status, the immigrant population is overwhelmingly law abiding and contribute to community safety. Criminal justice stakeholders must be cognizant of these challenges when prosecuting, representing, and sentencing defendants in order to reduce the continuing punishment formerly incarcerated people endure upon the completion of their sentence. Moreover, detaining and deporting immigrants who do not pose a significant public safety threat wastes critical criminal and immigration resources, and places additional collateral barriers to successful reentry following a low-level criminal conviction.
Center for Juvenile and Criminal Justice
Tuesday, 22 October 2013