Public Defenders Need to Verify Immigration Consequences!

I recently had the fortunate experience to sit in on an interesting immigration hearing. The immigration judge (IJ) is a friendly and compassionate person who thoroughly understands the law and often gives the alien respondent the benefit of the doubt when it comes down to making decisions.

Unfortunately there was no doubt as to how the law could apply to the respondent at this hearing. The respondent is a young man from a country in Central America. His parents brought him to the United States at the age of four and he has been here ever since. In every aspect of culture and experience—except for the place of his birth—this man is American. He has no accent, nor does he communicate primarily in Spanish.

For reasons unknown, this young man never naturalized (became a U.S. citizen), even though he has been legally present in the United States for a sufficient amount of time.

Things went bad beginning a few years ago when this man began to suffer from the symptoms of schizophrenia. The disease progressed rapidly and before anyone realized that the young man needed help, he committed some minor crimes. These crimes were not planned out crimes that would yield a financial gain—they were nonsensical and random instances that were consistent with a diagnosis of schizophrenia.

A well-versed watcher of “Law and Order” or “Boston Legal” would think to have this man plead innocence by reason of insanity and give him the opportunity to receive the help he needed. Instead this man pled guilty to all of his crimes and served out his criminal sentence. It is unclear what his criminal attorney was doing for him, but it is very clear that this man committed these crimes because he has a mental illness. It is also very clear that this defense attorney did not know nor seek to know the immigration consequences of his client’s actions.

Soon after, Immigration and Customs Enforcement (ICE, previously INS) came after him and put him into deportation proceedings. Unfortunately, there is no way for the IJ to undo the criminal convictions. Because there is no way to prove that this man will be persecuted in his home country because of his mental illness—his fate is sealed and he will probably be ordered deported.

When the legal nuances of this case are taken away and we view it simply as it is. This man is essentially being deported because he suffers from a mental illness. The laws definitely do not state this, nor is it that black and white—but his initial ineffective counsel in his criminal proceedings has rendered him deportable.
Even the most sympathetic and scholarly IJ cannot ignore what the laws force him to do. The truth is that criminal attorneys, particularly public defenders rarely have the understanding or foresight—or likely the time to effectively address their clients’ immigration status and how their conviction or sentence will change that.