This section written by Rachael Federico, in collaboration with Alex Bassos.
In Padilla v. Kentucky, the Supreme Court ruled in a seven to two decision that counsel in a criminal case must inform a client whether his plea carries a risk that the client could be removed from the United States. Please see NPR’s coverage of the decision for more specific information about the case. The state of Oregon also protects non-citizens under ORS 135.385. The statute requires that non-citizens of the U.S. must be informed by the court if a “conviction of a crime may result, under the laws of the United States, in deportation, exclusion from admission to the United States or denial of naturalization.”
Therefore, criminal defense attorneys will likely need to do legal research in immigration law when they have clients who have entered the United States as an “alien,” or non-citizen. This webpage is designed to help give a basic overview of common terms and components of immigration law and the consequences of criminality for clients who would like to become legal permanent residents or naturalized citizens.
There are serious consequences for clients who have been in the U.S. illegally and/or have been convicted of crimes. For example, several time bars that restrict re-entry into the United States once a client has been convicted of certain crimes and ordered removed from the United States. Conviction of crime might also prevent a client from ever naturalizing, or becoming a U.S. citizen.
As you conduct your legal research, please keep in mind that motions to reopen or reconsider deportation proceedings can be very difficult for clients. Such motions have strict numerical and time limits. The guidelines are available in 8 C.F.R. § 1003.2. Furthermore, the motions are generally disfavored because it is believed that delays of removal offer advantages to aliens wishing to remain in the U.S. See Matter of Shaar, 21 I&N Dec. 541, 547 (BIA 1996).
Similarly, there are some special waivers to some aliens’ inadmissibility, permitting them to re-enter the U.S. before the time bar has elapsed. However, the waivers are accompanied by costly filing fees and require the expertise of an immigration attorney. Even with the aid of an attorney, the waivers are not applicable to all clients, and they are still at the discretion of immigration officials to grant or deny. The best option for clients is to have sound advice in the first place—before being subject to an order of removal.