The intersection of criminal law and immigration law – crimmigration, for short – can be daunting. Add the tricky issues that pop up in intoxication cases, and you’ve got yourself a challenge. But considering the numbers, chances are most attorneys will encounter non-citizen clients at some point, so it’s important to know what to look out for. Estimates of the undocumented population currently living in the U.S. come in at 11.5 million (Paris, France has a population of about 11 million, for perspective). Importantly, this number does not account for people with some form of documentation – legal permanent residents (a/k/a green card holders), visa holders, or DACA Dreamers, for example.
There are more than 643,000 DACA (Deferred Action for Childhood Arrivals) recipients in the U.S., most of whom are relatively young with little, if any, criminal history. Th at is because one of the requirements to be eligible is the applicant cannot have ever been convicted of a “significant misdemeanor.”
WHAT DOES THAT MEAN?
Not surprisingly, the answer is: “It depends.” But there is a list of crimes that are already labeled as “significant” for DACA purposes, and one of these is DWI. Th is means most criminal defense attorneys have likely dealt with the case of a DACA recipient who stands to lose their status and expose themselves to deportation if they agree to any kind of DWI probation (even if it gets dismissed at the end!). Be wary, too, of deferred probation on DWIs. Even though it ends in a dismissal, deferred probation counts as a conviction for immigration purposes. Other pitfalls to watch for include avoiding anything that could be considered a “crime involving moral turpitude,” a mysterious phrase in immigration law that can include DWI with Child Passenger, or DWI when someone knows they have an invalid license. Th is is especially risky for those clients who never had a license, or who trigger one of the many license suspension laws. Always watch out for companion or ticket cases too. Drug paraphernalia can sometimes put someone at risk for deportation, and public intoxication can raise a red flag with immigration if there is a concern your client is a “habitual drunkard.” Also remember that your undocumented DWI 2nd client runs a risk of encountering ICE any time they get booked in, so those mandatory days in jail as a condition of probation just got much more dangerous.
WHAT TO DO?
Th e U.S. Supreme Court has announced that criminal defense attorneys have a legal duty to give accurate immigration advice to satisfy their non-citizen clients’ right to counsel. So, negotiate hard with prosecutors! Hand-in-hand with that duty comes the implicit but no-less-important mandate for prosecutors to “play ball” and consider a non-citizen defendant’s status during plea bargaining. Discuss extra conditions, classes, or even jail time (if it’s safe) in return for reductions and alternative pleas—not as a way to give non-citizens special treatment, but as a way to level the playing fi eld. Getting creative with alternative pleas (think: obstruction of highway, certain kinds of disorderly conduct, etc.) can save you and your client a lot of heartache.
When deportation means—as it often does—separation from someone’s family and home, it is hard to imagine it as anything but an additional punishment for the accused. Similarly, losing status or the ability to renew that status can have a more devastating impact than jail.
And if the prosecutor simply will not budge, set cases for trial when a plea agreement would expose the client to dangerous immigration consequences. Finally, always get an advisory from a (cr-)immigration attorney who can tell your client how certain results will impact their ability to stay in the U.S. Th is is the best way to stay ethically compliant, and make sure your clients get accurate advice on the things that matter most.