Last week I began constructing a working definition of “crimmigration law.” For all its currency in recent years, the reality is that the phrase largely goes undefined—as if we’re supposed to know it when we see it. In the six years that I’ve been writing about crimmigration law, I have been as guilty of doing this as anyone so I’m certainly not pointing fingers. Instead, I’m trying to bring some theoretical coherence to doctrine that evolves rapidly across jurisdictions.
As I wrote last week, one major aspect of crimmigration law as I see it is the frequency with which criminal adjudications lead to immigration consequences. An equally important but more often overlooked aspect of crimmigration law is its development within criminal proceedings involving migrants. This occurs at the state and federal level both through substantive criminal law and through criminal procedure. I go into a great deal of detail about all of this in Part II of my book Crimmigration Law. Obviously I won’t do that here. Instead, I’ll highlight a small number of major shifts within criminal proceedings that emblematize crimmigration law.
First is the sea change that has occurred within the Sixth Amendment right to effective assistance of counsel. In 2010, the U.S. Supreme Court announced that the right to counsel requires criminal defense attorneys to provide their noncitizen clients advice about the immigration consequences of a conviction. I’m convinced that this decision, Padilla v. Kentucky, will stand as a landmark in the Supreme Court’s right to counsel jurisprudence, right up there with Gideon v. Wainwright.
At the heart of the Court’s opinion in Padilla was a realistic recognition that the traditional division between criminal law and civil administrative immigration law has blurred to the point of irrelevance for many migrants. The ability to remain in the United States is often preserved or lost inside the criminal courthouse.
Add to this the fact that roughly 95% of convictions these days result from pleas, not trials, and we’re left with a picture in which the most important advocate for a migrant is often not the attorney who appears before an immigration judge, but the attorney who appears before a state criminal court judge. This led the Padilla Court to conclude: “we find it ‘most difficult’ to divorce the penalty [that is deportation] from the conviction.”
Since Padilla the state and federal courts have grappled with a host of thorny issues emanating from this newly recognized obligation. In its aftermath, for example, courts have had to decide whether Padilla’s holding applies to convictions that precede March 31, 2010, the date the decision was issued. They have had to decide whether a judge’s warning that pleading guilty might have adverse immigration consequences remedies a defense attorney’s failure to meet the Sixth Amendment demand to provide representation that meets prevailing professional norms. They have had to decide whether states can foreclose Padilla claims through quirks of state procedure whereby a migrant is convicted for immigration law purposes but not for state law purposes. Five years after Padilla and one follow-up decision later on the issue of just how far back Padilla’s reach extends, and state and lower federal courts are still struggling with these issues. In chapter 5 of Crimmigration Law, I lay out those developments and identify strategies for moving forward.
While hugely important, Padilla isn’t the only doctrinal development within criminal proceedings to mark crimmigration law. Alongside its impact on the right to counsel we need to consider a vital phenomenon that occupies many defense attorneys, prosecutors, and judges: the use of federal criminal law to punish migration activity. Coming to the United States without the federal government’s permission is a federal misdemeanor. Doing that after having been removed is a federal felony. Though these crimes have been on the books since 1929, neither was used much until the last few years of the second Bush Administration. This trend has only increased under President Obama.
In recent years, federal prosecutors have pursued charges of immigration crime more often then they have pursued any other categoryy of federal crime—whether violent crimes, drug offenses, financial crimes, or anything else. The accompanying chart shows just how many more immigration crime prosecutions were lodged in federal district courts in 2013 and 2014 than other frequently prosecuted types of offenses.
These prosecutions don’t just lead to convictions. They also lead to substantial time behind bars. Defendants charged with immigration crimes are more likely to be detained prior to trial than any other type of federal defendant. After conviction, immigration offenders tend to spend about a year-and-a-half in prison. In 2010, to use one year’s data as an illustration, the median prison term for illegal entry convictions was 18 months; for illegal reentry it was 15 months.
Needless to say, migrants convicted of immigration crimes can pretty much forget about the chance to remain in the United States with authorization. The stakes are obviously high: pretrial detention, followed by post-conviction imprisonment, followed by civil immigration detention, capped off by removal.
Such high stakes make it that much more important for defenders to consider possible ways out of immigration prosecutions—whether through a claim that the Sixth Amendment right-to-counsel was stifled, that a migrant didn’t receive proper notice of removal, that a supposed migrant is actually a United States citizen, or other tactics that courts have supported and that I identify in my book.
Next week I will turn to the final aspect of crimmigration law: enforcement methods.