Wednesday, May 27, 2015

Word of the Day Wednesday: Crimmigration

Crimmigration: Noun. The merger of Criminal Law and Immigration Law in practice.


IMMIGRATION IN THE US


America, as you know, is a country founded by immigrants. Quick history: Native Americans were here for eons when the French and the Spanish started showing up. The first immigrants actually came right here to Jacksonville, Florida. In 1562 Jean Ribault, a French naval officer, established Fort Caroline. In 1565, Ponce de Leon founded present day St. Augustine and killed the French (sadly).


Most of us are German, FYI
Then the English and other Western Europeans appeared. 406 years ago, in 1607, Englishmen settled in what is now Virginia. Since the land was claimed for England as a colony, the settlers weren't exactly immigrants (but some later rebelled). For 175 years, these colonials came in droves in what is considered the longest immigration of US history. Several hundred miles north, the Pilgrims settled New England starting in 1620. The Dutch settled in New Amsterdam starting in 1626.  

Then all of these immigrants became Americans.


The Irish and Germans immigrated in the 1800s and by the 1850s the first prejudices against immigrants began. Anti-Catholicism fueled the conflict between the Irish Americans and everyone else. Then the Potato Famine struck and immigration tripled with more than 1.7 million Irish, German and French coming to America just before the Civil War.

When the California Gold Rush started, 100,000 more came from Asia, Australia and South America, leading to California becoming a State with 90,000 people.

From the late 1880s until 1930s, more Catholics and Jewish immigrants from Italy and Russia came to the United States. From there, a steady flow of people from all nations, including War Brides led to the Melting Pot that America is today.


IMMIGRATION REFORM AND CONTROL ACT (IRCA)


In the late 1970s and early 1980s, Fidel Castro emptied all of the jails and mental institutions in Cuba. He then sent all of the people who he considered "undesirable" to Miami. What followed was an era of Cocaine Cowboys and what Time Magazine called Paradise Lost.  Whether or not the Mariel Boatlift was related to the terror in South Florida, what resulted was blatant discrimination against (mostly Hispanic) immigrants.

When the IRCA was passed in 1986, it provided an opportunity for amnesty for individuals who were already here. It also specifically deterred immigrants from coming to the US illegally, punished employers who knowingly hire undocumented immigrants and increased boarder patrol. At that point in our national history, "immigrant" became an ugly word. 


MODERN IMMIGRATION


The goal of the US today is to limit, deter, and punish immigration. Since everyone is entitled to civil rights and liberties whether or not they are a citizen, the ways to get rid of immigrants are limited.  Since no one likes criminals, the Feds saw the perfect opportunity to crack down on immigration. 

Every non-citizen who is arrested can expect that Immigration and Customs Enforcement will come calling. Maybe not tomorrow, but eventually. In the UCLA Law Review Article, DOING TIME: CRIMMIGRATION LAW AND THE PERILS OF HASTE by Juliet P. Stumpf, Ms. Stump points out that, "[c]riminal law and immigration law play different roles: the former regulating conduct within a community, and the latter governing the entry and expulsion of individuals across borders. Criminal law and immigration law have in common that they serve as systems both for excluding individuals from the community and for determining when individuals may join (or rejoin) society." 58 UCLA L. REV. 1708 (2011) (citation omitted). Likely, anti-immigrant sentiments are the cause of the rise of crimmigration.


KNOWING WHAT WE DON'T KNOW


It's a scary feeling for many of these individuals who may face obstacles like language barriers because their Criminal Defense attorney cannot accurately predict all of the possible outcomes of their circumstances. Truth be told, many Criminal Defense attorneys generally lack the knowledge to advise immigrant clients because Immigration Law is a highly specialized area of practice. Without practicing Immigration Law, a Criminal Defense attorney may miss opportunities to keep their client in the United States. Furthermore, Criminal Defense attorneys and judges know so little about the Immigration side of things that most of them just tell their client, "you're probably going to be deported." It's a worst-case scenario easy-out. We are covered for the purpose of malpractice, but just dolling out worst-case scenarios can cause a lot of unnecessary worry for your client and their entire family here and abroad. We are supposed to be counselors, not just advocates.  


WHAT CAN WE DO?


Criminal Law practitioners and Immigration Law practitioners are teaming up to make sure that both groups are knowledgeable enough counsel with a degree of certainty based on knowledge and experience. We spoke to Andrea P. Reyes from Reyes Legal, PLLC for a few tips for practitioners.



  1. "Illegal" is not an noun. It's offensive.  Non-citizens who do not have the proper immigration paperwork should be referred to as “undocumented immigrants”
  2. Deferred Action is NOT the equivalent of amnesty.  Amnesty is the “act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted." Amnesty provides a pathway to Citizenship.  Deferred Action is a discretionary decision not to prosecute or remove an undocumented immigrant and does not provide a means for an undocumented immigrant to become a permanent resident of the United States, and therefore no path to become a U.S. Citizen.
  3. The Department of Homeland Security is prioritizing undocumented immigrants who commit “significant misdemeanors.” Now,  a DUI, Domestic Battery, or an offense for which you are sentenced to 90 days or more can lead to automatic priory for removal (unless they qualify for some other form of relief under U.S. Immigration Laws). Practitioners should know what crimes qualify and make efforts to negotiate lesser included offenses or other charges to resolve a case.
  4. Even Legal Permanent Residents can face the severe immigration consequences.  Convictions for any of the following can result in prioritized removal: a “crime involving moral turpitude” punishable by a sentence of at least one year; two or more crimes involving moral turpitude where the two crimes did not arise out of a single scheme of misconduct; an aggravated felony; a drug crime (or a conspiracy or attempt to commit one), whether in the U.S. or another country; illegally buying, selling, possessing, or engaging in other transactions concerning firearms, weapons, or destructive devices; or committing, or conspiring to commit espionage, sabotage, treason, or sedition, if punishable by at least five years in prison.
  1. The BEST advice we got is that any time a Criminal Defense attorney represents a non-citizen, it is most effective to seek an Immigration Law attorney to determine if there will be any immigration consequences to their criminal activity or the proposed outcome of the case. Team work makes the (American) dream work. 



Plata Schott Attorneys and Counselors at Law is based in Northeast Florida. Their attorneys are licensed to practice in Florida and Federal Court. Learn more at www.plataschott.com.

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