Immigration Consequences of Guilty Pleas or Convictions


The immigration consequences of a guilty plea or conviction in a New York court have increased dramatically in recent years. This is because in recent years the U.S. Congress has several times amended the federal immigration lawsin particular in 1996 when it enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”)-to enhance the potential immigration penalties for criminal conduct. In addition to enacting these harsher immigration laws, the federal government has adopted stricter policies on enforcement of these laws in recent years, most particularly following the tragic events of September 11, 2001. As a result of these changes in the immigration laws and in enforcement of these laws, now more than ever, a New York immigrant who pleads guilty even to a minor criminal offense will become subject–often unknowingly due to the failure of New York’s legislature and courts to ensure that noncitizens are informed of the immigration consequences of a criminal conviction-to the risk of detention and removal from the United States. And, in many cases, this risk may become realized only years later when the individual innocently does something, such as take a trip out of the country, that brings the person’s past encounter with New York’s criminal justice system to the attention of federal immigration authorities, as in the following case described in The New York Times: Cornelius Johnson came to New York from Jamaica in 1993. As a legal resident, he settled in upstate New York with his extended family. In 1997, he was arrested for criminal possession of marijuana. In an agreement with the state, he pleaded guilty and was sentenced to time served. Neither the lawyer or the judge mentioned that in accepting a plea bargain, he could be deported. And guess what? Today, eight years after the conviction and with a clean record, Mr. Johnson faces mandatory deportation. Cornelius Johnson’s case is emblematic of a plea bargaining system in New York that is unfair to immigrants. When plea bargaining works, it works well: In exchange for a reduction in charges, a defendant pleads guilty, eliminating the expense and uncertainty of a trial for both him and the state. But there’s one big problem for defendants in New York’s immigrant community: unlike many other states, New York does not inform immigrant criminal defendants that part of what they bargained for may include deportation. Since 1996, when Congress altered immigration laws, any noncitizen including people who have legally lived in the United States since they were babies-convicted of a broad range of crimes including petty offenses like turnstile jumping, shoplifting or possession of a small quantity of marijuana may be subject to deportation. Unfair as the law is, it is even worse for immigrants in New York, where some misdemeanors are defined as aggravated felonies under federal immigration laws, which subject them to mandatory deportation. Furthermore, in the case of some lesser crimes, a judge cannot review an immigrant’s personal circumstances and grant a deportation waiver if the crime was committed within seven years of the alien’s admission into the United States. So a legal immigrant who came to America as a teenager with his family, pleaded guilty to possession of a marijuana cigarette a few years after his arrival and traveled back to his country as an adult to visit an elderly grandmother, could be barred from re-entering the United States. Had the court told the young man that he could be deported, he may not have pleaded guilty, and he certainly wouldn’t have left the country. This story of what is currently happening to Cornelius Johnson illustrates how the immigration consequences of an admission or conviction in a New York court present a different kind of reentry problem from the other collateral consequences being investigated and discussed in this colloquium. First, there is the obvious-these particular consequences are faced only by individuals who are not U.S. citizens, even though they may have lived nearly their whole lives here or everything that matters to them (e.g., family, job, community) may be in this country. Second, the potential consequence of detention and removal from the United States poses a risk of total defeat of the capacity to re-integrate into one’s family, community, and society here in this country. Third, this risk may attach to conviction of minor offenses-misdemeanors or even violations in many cases-or, as will be discussed later in this paper, in some cases even to New York dispositions that are not considered convictions under state law.

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