I have never practiced criminal law, but one aspect of my civil practice touches on criminal practice in a way that is crucial for criminal law attorneys to understand. I handle immigration cases. In cases where immigration law and criminal law intersect, knowledge of current immigration law is essential.
Many more residents of the Grand Traverse area are non-citizens than anyone would imagine. For the same reason our area attracts immigrants from Ohio and Illinois, it also attracts them from Mexico, Jamaica, and Turkey (to name the native countries of a few of my clients). The immigration consequences of a criminal conviction for a legal alien are monumental, and I think we are not doing our job if we fail to understand this and make our clients aware. A client may face deportation after a conviction for even misdemeanors, pursuant to 1996 changes to the Immigration and Naturalization Act.
Not that the Michigan Supreme Court would find fault with an attorney for failing to address this issue. In fact, Michigan stands alone, holding in People v. Davidovich, 463 Mich 446 (2000), that defense counsel’s failure to inform aliens that they may be deported upon a criminal conviction is not grounds to withdraw a guilty plea. While the Michigan Supremes find immigration consequences a collateral matter, more than ten other states have actually mandated that courts verify the defendant’s understanding of this potential risk.
Aside from Davidovich, the Vienna Convention on Consular Relations, Article 36, 1 (b) requires the United States, as a signatory to this international treaty, to inform arrested non-citizens of their right to contact their national consulates. Presumably, even if state law doesn’t require the criminal non-citizen defendant to understand the immigration consequences of a conviction, the national consulate will.
When the Hon. James R. McCormick visited Nogales, Mexico in 2002, he brought home a Mexican government “Guide on Human Rights” informing English-speaking non-citizen arrestees of their right to “establish contact with your Consulate.” The United States, including our own local law enforcement officials, routinely ignores this obligation.
Our government, however, would have a fit if a U.S. citizen arrested in Mexico or Turkey was not informed of their right and allowed to contact the U.S. embassy. Mexico is taking the arrogant U.S. government to the World Court in The Hague for continued violations of this treaty. If the United Nations International Court of Justice issues an injunction, the United States must choose whether to respect or defy its judgment.
How is every little northern Michigan district court and law enforcement unit supposed to know about the Vienna Convention’s requirements? We will all learn together in the same way we learned about Miranda rights–by education. Reading this article is one step.
Identify the citizenship status of each of your criminal defendant clients. A conviction for a non-citizen may earn him or her an unwanted ticket back to the country of origin. Even if the client has a U.S. citizen spouse and children depending upon the defendant and his or her income. Even if the client has spent his or her entire life in the United States with no connection to the country of birth. The consequences of that conviction are more than a fine and jail time to the non-citizen client — they can lose the most fundamental elements of the client’s life — home and family.
Posted by Lea Ann Sterling, Esq., July 17, 2007
The information presented in this article is for general information only and should not be construed to be legal advice.