Immigration (collateral) consequences of a criminal conviction — Court-Martial Trial Practice Blog

I'm blogging about the presentation given yesterday at the 39th (VA) Annual Criminal Law Seminar. The most important point I learned is that military justice practitioners, myself included, are not necessarily competent to advise a client properly on immigration consequences of a conviction. This of course doesn't matter too much if it's a not guilty plea case all the way. The potential consequences do become relevant in a guilty plea case. Why should military lawyers care, other than a professional need and requirement to give good advice. Two C.A.A.F cases: United States v. Miller and Denedo, and the recent AFCCA decision in United States v. Rose.

Background.

While the appellant in Miller didn't get any relief, the burden has been placed on trial defense counsel and the military judge to ensure an accused is properly informed of sex offender issues when pleading guilty. See United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006). Besides raising IAC against his appellate counsel, Miller raised a Grosty issue post-NMCCA decision that his guilty plea was involuntary for IAC, because his trial defense counsel failed to tell him about sex offender registration.

There is no need to look further than the first prong of the Polk analysis above to determine that Appellant did not receive ineffective assistance of trial defense counsel. Although the requirement of registering as a sex offender is a serious consequence of a conviction, trial defense counsel's failure to advise Appellant of this consequence does not rise to the level of ineffective assistance of counsel.

United States v. Miller, 63 M.J. at 457.

We observe that several federal courts of appeals have concluded that trial defense counsel's failure to address several other collateral consequences with a defendant was within the range of professional competence.

United States v. Miller, 63 M.J. at 458.

Given the plethora of sexual offender registration laws enacted in each state, it is not necessary for trial defense counsel to become knowledgeable about the sex offender registration statutes of every state. However, we do expect trial defense counsel to be aware of the federal statute addressing mandatory reporting and registration for those who are convicted of offenses within the scope of this statute. 28 Also, we expect counsel to be aware of DoD Instr. 1325.7, which identifies offenses that trigger mandatory sex offender reporting.

United States v. Miller, 63 M.J. at 459.

So far so good, but . . .

For all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure Listing Of Offenses Requiring Sex Offender Processing. Trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement. While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance this Court will carefully consider in evaluating allegations of ineffective assistance of counsel.

United States v. Miller, 63 M.J. at 459.

Having done such cases post-Miller, I know that MJ's are asking, and it's going into (at least Navy/Marine Corps) PTA's. Posters to CAAFLog blog on this issue are divided; some acceding to the rightness of Miller's pronouncement, some railing against it. See CAAFLog, Published AFCCA opinion grants relief due to counsel's failure to accurately answer accused's questions about sex offender registration, 12 February 2009. Like it or not, CAAF has imposed a reality. See also, MAJ Kwasi L. Hawks, ARTICLE: To Err is Human, to Obtain Relief is Divine, 2007 Army Lawyer 55 (June 2007). Note that CAAF explicitly acknowledges the great difficulty in knowing and understanding all of the laws. And as we now know from United States v. Rose, __ M.J. ___, No. ACM 36508 (A.F. Ct. Crim. App. Feb. 12, 2009), at least one Service court has granted relief on a simliar issue (although Rose was tried in 2004).

This issue of sex offender advice is one reason I'm worried about immigration issues. I thought they'd be a small universe of cases, but I heard today of two current Army cases. As of February 2006 there were reported to be over 40,000 non-citizens serving (green card holders) [yes, Mr. Lou Dobbs, legal immigrants serving this nation.] See, Statement, Hon. David S. C. Chu, Under Secretary of Defense (Personnel & Readiness), Senate Armed Services Committee, 10 July 2006; in October 2008, 41 were naturalized at Fort Bragg. It is reported that nearly 43,000 immigrants serving in the military have become citizens since 9/11. See Speech, Hon. Robert M. Gates, Secretary of Defense, Military Naturalization Ceremony (Ft. Bragg, NC), 23 October 2008. I'm not sure of the court-martial rate, but I'd be interested to figure out a percentage of immigrants who've been court-martialed during that time. Officers shouldn't be a problem because you have to be a citizen for a commission (unless it's espionage?), and most enlisted after their first enlistment, because at that point they need security clearances, and you must be a citizen to get a clearance. The other reason for concern is Denedo. Denedo is a coram nobis writ case. See United States v. Denedo, 66 M.J. 114 (C.A.A.F. 2008), cert. granted Denedo v. United States, __ U.S. ___ (2008) (this link is to the excellent SCOTUSWiki page with all of the relevant documents). The Supreme Court issue on Denedo relates to the jurisdiction of military appellate courts to hear a coram nobis writ petition on the facts of the case under the All Writs Act. CAAFLog has got a lot of information and discussion on Denedo and i'll leave it to the appellate lawyers to argue that one. (If my link doesn't work, go to CAAFLog and type "Denedo" in the search box.)

Denedo complained that his trial defense counsel gave him very incorrect advice on his immigration — a "no worries" answer — status when he accepted and plead guilty in accordance with a PTA. He didn't know anything about the incorrect advice during the post-trial process and his separation from active duty. The issue didn't hit Denedo slap in the face until years later when he then faced deportation and removal proceedings based on his court-martial conviction.

What do you do. The problem in Rose was, whether you agree or disagree with the issue, that the trial defense counsel told the client, to paraphrase, "I don't know about the registration, but there could be some issues." That was not a satisfactory answer for AFCCA, and it appears consistent with what CAAF said in Miller about the minimum that ought to be said. Immigration issues are as complex, if not more. So, I suspect, "there may be some, but I don't know exactly," advice to the client isn't going to cut it later with the appellate courts. On this I could be wrong, but . . . do we want to be in that position. The civilian practice lawyers at CLE were concerned about it, and a quick Google gets a lot of hits on this topic. One immigration practice firms says:

However, there still is hope even with a criminal conviction on your
record. For example, it is actually possible for you to petition the
court in order to vacate the conviction, or to have the sentence
modified so that it is acceptable to the USCIS, or immigration services.

US Immigration Lawyers.com, last visited 1837, 13 February 2009.

Unlike civilian practice, the only step, other than that Denedo is taking, to recover from a court-martial conviction for immigration reasons appears to be favorable appellate action or a Presidential pardon. What can happen, and remember this is a civilian lawyer talking about civilian cases.

If you have an aggravated felony conviction or three misdemeanor convictions, a conviction for a “crime of moral turpitude,” or some other crimes, you could face the following consequences to your immigration status:

* Ineligibility for voluntary departure

* Inability to establish good moral character (a requirement for U.S. citizenship and other immigration court relief)

* Ineligibility for naturalization, suspension of deportation, or registry

* Ineligibility for asylum

* Ineligibility for withholding or cancellation of deportation and removal

* Permanent denial of future entry to the United States.

Consequences of Conviction on Immigration | Los Angeles Attorney | California Lawyer Criminal Felony Green Card CA, http://www.madlawonline.com/PracticeAreas/The-Effect-of-Criminal-Conviction-on.asp (last visited Feb. 14, 2009). [n.1]

Almost all of the criminal defense lawyer sites I surfed note concerns about immigration issues. So what do you need to know or think about.

Well, Mr. Eliot Norman at the CLE concludes with these four points.

a. You need to keep track of Congressional legislation and regulations.

b. You need to keep track of Board of Immigration Appeals and Federal Circuit opinions,

c. You need to keep track of ICE, DHS, and Op. Gen. Atty. opinions,

d. You need to expend full-time job hours to keep up in the immigration field.

e. He didn't say it, but I will, you need to consult a skilled immigration law lawyer. Now I realize he's looking for business, but so what, he's right.

What should we consider or think about when negotiating a PTA or pleading naked?

Is your client an immigrant with a Green Card?

What is their current immigration status?

Do they have a naturalization petition pending?

Is the offense to which he will plead guilty a removable offense? Note, once you have a second or subsequent offenses he's definitely got a real problem.

While the client may be permitted to stay, will he be barred from re-entry after leaving CONUS.

Is the offense on the Immigration Related Aggravated Felonies list?

What country is he a national of? This appears to make a difference because some immigrants can get a sort of "amnesty" because of the physical and political repercussions of being returned to that country. This would be a quasi-asylum issue as I understood it to be presented.

Does he have a prior criminal record? Any guilty plea at CM and he's "dead" from an immigration standpoint if he has any other criminal conviction.

Other considerations:

This is important for PTA's at SPCM. It is not the forum, it is the sentence or potential maximum sentence as well as the specifics of the charge that is the issue. For example, if sentenced to six months or less, even at GCM, that might not be a removable offense. (Note, this is the same issue for whether or not a state will consider a SPCM case as a felony for state purposes. Any lawyer who currently advises a client that a SPCM conviction is a misdemeanor is likely giving bad advice depending on the charge. For example, I recently had a client who was allowed to plead to a theft in excess of $150,000.00 at SPCM. I had to tell him that in Tennessee [and many states] that's likely a felony, regardless of the one year he was sentenced to.)

Some situations (interestingly like sex offender registration) may make it better to serve more time, but on a different charge. I have found clients and SJA's willing to take a plea to an assault and battery vice indecent assault, but where the sentence cap was higher, because of the draconian registration consequences.

Avoid a plea to theft offenses where the person is sentenced to in excess of one year.

Avoid a plea to a crime of violence that is similar to 18 U. S. Code 16, and for which the sentence is at least one year.

Any drug offense.

Any fraud offense (BAH fraud for example) where the loss is in excess of $10,000.00.

Avoid pleading guilty to multiple charges and/or specifications, even though military sentencing is unitary. This would be similar to considerations in the civilian community of concurrent sentences for multiple "counts."

Here is a link to a WI State Public Defenders Conference 2006, which has material consistent with that which was presented at this year's VA CLE conference.

To show not all blogs or sites are not equal, the site, AVVO has an item that shoplifting is considered a crime of moral turpitude. It was made clear to us at the CLE, with appropriate citations, that shoplifting is not such a qualifying offense for immigration purposes.

Some have commented on CAAFLog that this is a defense counsel problem. But as the result in Rose shows, it can become a Service, SJA, or prosecution problem if the case is reversed on appeal. I'm aware that the other Services reject the Navy/Marine Corps "million" page PTA form. But it might be worth adopting some of the clauses which relate to collateral consequences of court-martial. For an additional example, they could include that a retirement eligible accused will have his or her retirement check calculated as if they joined before September 1980. That means the last paycheck amount is their retired pay amount, regardless of when they joined. So and E-7 reduced to E-6 and then allowed to retire will be paid an E-6 retirement, if reduced at court-martial.

Finally, do what I'm going to do if it happens to me. Get your facts, get your chronology, and find a good immigration lawyer for a final double-check. If it's really complex, I may ask the CA to pay for expert assistance.

If you have a specific case, contact me, and I'll be happy to share what I, think, I learned at the CLE.

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[n.1] I have referred to several civilian attorney sites. This is purely for educational purposes and to illustrate the issues. I am not making any particular recommendation as to the quality or abilities of the attorney's referenced.