Today immigration consequences facing non-citizens with criminal convictions are dire. The threat of deportation, or detention during removal proceedings is today a clear and present danger to these individuals.
It is no question that the immigration consequences of a guilty plea or conviction have increased dramatically in recent years. Not only has Congress amended federal immigration laws a number of times, including when in 1996 it enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), but the federal government has undertaken stricter policies on immigration enforcement, notably since 911, September 11, 2001. Padilla v. Kentucky, 130 S. Ct. 1473 (2010); Tova Indritz, Immigration Consequences of Criminal Cases after Padilla v. Kentucky, Ch. 6 of Cultural Issues in Criminal Defense (Reprinted for the American Immigration Lawyers Association’s Annual Conference on Immigration Law June 16, 2011); Manuel D. Vargas, Working Paper On Immigration Consequences Of Guilty Pleas Or Convictions In New York Courts, NYSDA Immigrant Defense Project (May 9, 2005).
Today, the defense bar is more actively and vigorously warning convicted non-citizens to cautiously proceed in any potential interaction with the USCIS (United States Citizenship and Immigration Services). Many individuals are discouraged from both self-applications and attorney-assisted applications for naturalization as instances where ICE (US Immigration and Customs Enforcement) detains an alien in accord with INA § 236(c) at the citizenship interview and places him/her in removal proceedings has become a real threat. See attached Alert For Lawful Permanent Residents With Criminal Records Considering Applying For United States Citizenship, NYSDA Immigrant Defense Project, (Revised June 26, 2003) (a lawful permanent resident who has a criminal record that may trigger deportability should, in most cases, not apply for citizenship or at the very least wait until more time has passed since the alleged criminal offense).
Highlighting the threat of deportation and detention of a broad group of people considered to be in America illegally, including those who were convicted of crimes at any point and as far back in the past, PBS’s Frontline and the American University Investigative Workshop conducted a year long investigation of the current U.S. immigration enforcement system and stories of hidden abuse in detention centers culminating in a documentary aired on October 18, 2011 entitled “Lost in Detention”. The Obama Administration is reported to have deported or detained more immigrants than any other administration, with over 1 million detentions out of the 3 million total in the past decade and almost 400,000 people deported in 2011 alone. Fifty-five percent of them have criminal convictions (felonies or misdemeanors).
The research examines the federal program Secure Communities, which at first glance appears to be a noble and almost attractive idea. Local police would assist federal enforcement in identifying immigrants with criminal records and the worst of the worst would be picked up by ICE. Sounds good in theory, but the reality is that the application has been and is a nightmare for any non-citizen with a criminal arrest much less a criminal conviction. Aghast at the program’s execrable implementation in not only the US as a whole but in their specific states, in the summer of 2011, Governors Pat Quinn [D-Ill.], Deval Patrick [D-Mass.] and Andrew M. Cuomo [D-N.Y.] all tried to pull their states out of Secure Communities. See attached Letter from Gov. Cuomo to DHS (Department of Homeland Security) of 6/1/11; Letter from Gov. Quinn of 5/4/11.
The letters highlight that contrary to its stated mission of removing those who have been convicted of serious criminal offenses, ICE’s own statistics on Secure Communities reveal that “more than 30% of those deported from the US, never committed any crime much less a serious one.”
A New York Times article reporting Massachusetts’s unwillingness to participate in the Secure Communities program reports that the program, initiated in 2008 under the Bush Administration, has “expanded rapidly under the Obama administration, and is operating in 1,331 local jurisdictions in 42 states.” See attached Julia Preston, Immigration Program is rejected by Third State, N. Y. Times (June 6, 2011) available at www.nytimes.com/2011/06/07/us/politics/07immig.html (March 26, 2012). Notwithstanding the states’ opposition to Secure Communities, the Obama administration announced in August that state participation is mandatory. Id.
A more recent New York Times article sheds light on the “legal limbo” many immigrants with criminal convictions face once they are under the radar of ICE. Even with Obama’s recent push to adjust immigration enforcement priorities to focus on illegal immigrants with criminal convictions, individuals flagged for deportation who “qualify for prosecutorial discretion” will have their cases closed but not dismissed, able to be reopened at anytime while their immigration status remains unsettled. See attached, Julia Preston, US to Review Cases Seeking Deportations, N. Y. Times (November 17, 2011) at
http://www.nytimes.com/2011/11/17/us/deportation-cases-of-illegal-immigrants-to-be-reviewed.html?ref=us&pagewanted=print (March 26, 2012).