As criminal defense lawyers we often represent clients who face potential immigration consequences upon conviction of a crime.  Given the increasingly harsh treatment of non-citizens before the immigration courts, it is imperative that criminal defense lawyers recognize possible immigration issues and advise clients to consult with an immigration specialist prior to resolving a case.


It is an unfortunate reality that the political heat surrounding the illegal immigration issue has resulted in many unreasonable and unjust deportations and the inevitable destruction of far too many families.


In June the U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act. The bill is currently pending before the House awaiting that body’s version of “immigration reform.” The Senate bill has very little, if any, chance of being adopted by the Republican-controlled House. The Tea Party wing of the GOP will not permit it. House representatives have deferred action on the bill until after they return from their August break in early September. Meanwhile, the lives of many immigrants hang in the balance.


Lawmakers demanding “reform” have so many diverse interpretations of reform that a consensus is highly unlikely. That will leave us exactly where we are now: polarized beyond rational debate or reasonable compromise. “My way or the highway” will have prevailed once again in the least popular Congress in U.S. history.


Most of us take U.S. citizenship for granted. We are born here, live here, and die here. There are approximately 315 million people living in the U.S.—40 million of whom were born in foreign countries. Among the ranks of that 40 million, twelve million are considered by the U.S. Immigration and Customs Enforcement agency (ICE) to be “illegal immigrants.” The remaining 28 million are generally considered to be law-abiding, taxpaying, and responsible individuals. Still, since the 9/11 terror attacks and the rise of drug cartel violence in Mexico, all immigrants have become a source of resentment for many Americans, especially conservative white people who believe this country’s “traditional values” have been corrupted by the outside hordes.


States like Arizona, Texas, and New Mexico want all illegal immigrants either deported or placed in chains. This xenophobic attitude exists even though U.S. born citizens commit two and one-half more serious crimes than foreign-born residents. The aforementioned “border states,” who for years have relied upon foreign-born residents to perform work that U.S. born citizens of every race and ethnic stripe will not perform, have demanded through ludicrous legislation and racially-charged political speech that the Federal government get rid of the “illegals” and even the legal foreign-born residents who transgress ever so lightly on U.S. laws.


According to ICE, more than 396,000 people were “deported” in fiscal year 2011. The Immigration Policy Center estimates that 10 percent of those deportations were lawful permanent residents whose deportations were based on criminal convictions, some of which were years, even decades old, and were “minor” offenses.


The sheer number of “unjust” deportations of lawful permanent residents prompted the U.S Supreme Court to act in 2010. In a Texas case involving Jose Angel Carachuri-Rosendo, the court significantly altered the way a lawful permanent resident may be deported under the Immigration and Nationality Act (“INA”). Carachuri was born in Mexico in 1978, came to the U.S. in 1983, and became a lawful permanent resident in Texas where he has resided ever since. His common law wife, four children, his mother, and two sisters are American citizens. He faced a 2006 deportation order because he had been convicted of two misdemeanor drug possession offenses in Texas. The first conviction was in 2004 for possession of less than two ounces of marijuana for which he received 20 days in jail; and the second conviction was in 2005 for possession without a prescription of one Xanax tablet, a common anti-anxiety medication, for which he received 10 days in jail. That second conviction prompted the Federal government to initiate deportation proceedings against Carachuri.


Carachuri conceded he was eligible for deportation because of the two offenses but argued he was entitled to discretionary cancellation of the removal order under the INA. The Government didn’t see it that way. They argued a simple possession offense committed after the first simple possession conviction had become final was an “aggravated felony” warranting deportation.


Fortunately, the Supreme Court disagreed, saying a “second or subsequent simple possession offenses are not aggravated felonies under [the INA] when the state conviction is not based on the fact of a prior conviction.”  This means that the prior conviction must be charged as an element in the new offense prior to trial or pleading guilty, as is often the case when cases are filed with an enhancement paragraph.


The Government’s position was draconian, to say the least. It argued that because Carachuri’s second offense could have been prosecuted as a repeat offender under Texas law (even though it was not), that meant it could have been prosecuted as a “felony” under Federal law, and, thus, was an “aggravated felony” for immigration law purposes.


It is difficult to understand why the Government wanted to transform two minor misdemeanors into an “aggravated felony” in order to deport a lawful permanent resident who for twenty-five years had lived a law-abiding, responsible life. Is this a measure of what we have become as a society? Is this a legitimate response to the fear we now have of terrorism? Or is it something more sinister, like our historical proclivity for racism?


The latter seems more likely to us.  Some “hard right” Republicans openly state that if the GOP turns out 75% of the white vote and secures 61% of that vote, they can, and will, win the presidency. And what is the best way to turn out 75% of the white vote: appeal to the cultural resentments and racial prejudices of the “white male working class” (their hatred of food stamps, welfare, funds for public education, arts and humanities programs, green energy, and governmental regulations that control the unbridled greed of unchecked capitalism). These kinds of racial, xenophobic sentiments have now been prominently injected into the so-called “immigration reform” debate.


And that is why the Carachuri decision was significant beyond its legal finding: it provides lawful permanent residents with some legal protections against those trying to remove them from this country for the most trivial reasons which, unfortunately, are too often rooted in racism.


For criminal defense lawyers, and their clients, Carachuri reminds us to carefully consider the immigration consequences when resolving criminal cases, especially where enhancement paragraphs are included in the charging documents.