On November 30, 2017, the District of Columbia Court of Appeals Board on Professional Responsibility Ad Hoc Hearing Committee took disciplinary action against an attorney for providing incompetent representation to a noncitizen client facing deportation. The noncitizen client faced removal proceedings in immigration court triggered by a guilty plea in Virginia state court. Ultimately, the attorney failed to identify the complex legal issues his client faced at the intersection of criminal and immigration (“crim-imm”) law, a situation that could have been avoided if he had researched and reached out for assistance to immigration practitioners specializing in this area.
The DC Professional Responsibility Committee determined that the attorney’s professional misconduct jeopardized his client’s rights. The noncitizen client, who had lawful immigration status, faced deportation due to his Virginia state criminal conviction. The federal Department of Homeland Security (DHS) categorized the Virginia conviction as an “aggravated felony,” a classification for certain types of crimes under federal immigration law. Although strong arguments were available that the client’s Virginia burglary offense is not an aggravated felony, the attorney failed to challenge DHS’s removability charge. Even worse, the attorney incompetently conceded that the offense is an aggravated felony and that his client was removable, severely prejudicing his client.
For any noncitizen – including lawful green card holders – having a conviction labeled as an aggravated felony offense triggers some of the harshest immigration consequences possible, including near mandatory deportation, ineligibility for almost all defenses to deportation, mandatory detention with no possibility of release on bond during removal proceedings, and a lifetime ban from returning to the U.S., often meaning permanent separation from U.S. citizen family. All of these consequences potentially could have been avoided if the attorney had recognized the complex immigration consequences involved in the case and responded accordingly.
The Committee determined that the attorney made several missteps in the course of representation. In addition to conceding removability in immigration court, the Committee noted that the attorney failed to challenge or delay his client’s deportation on any other ground. In its report approving the disciplinary petition, the Committee also stated that the attorney had wrongly petitioned for post-conviction relief based on a mistaken claim, which the attorney then improperly dismissed without consulting his client. Pursuant to D.C. Rules of Professional Conduct 1.1(a) & (b), 1.4(b), and 8.4(d), the attorney acknowledged that he had failed to provide competent representation, failed to explain a matter to the client, and engaged in conduct seriously interfering with the administration of justice. As part of his discipline, the attorney faced a 30-day suspension and one year of probation.
There are several steps the attorney could have taken to avoid disciplinary action relating to his failure to represent a client facing the severe immigration consequences of a criminal conviction. At a minimum, for any case involving a potential noncitizen client who has a criminal conviction, the attorney should have immediately flagged the issue of potential drastic immigration consequences. From the get go, he needed to ask his client more questions – starting with the basic question of “where were you born?” to identify his client’s precise immigration status, among other relevant crim-imm intake questions. That information would allow him to then begin to research what immigration consequences that criminal offense could trigger for that client’s particular legal status. At that point, if the attorney was not clear, he should have consulted with an experienced immigration attorney to better understand his client’s situation.
Representing a noncitizen client is a time to be humble. For the sake of defending a client from facing banishment from society through deportation, the loss of liberty through immigration detention, and permanent separation from his or her family, we urge attorneys representing noncitizen clients to practice one of the most important skills as a lawyer: knowing what you don’t know, and flagging what could be a potential problem. As recognized by the Supreme Court in Padilla v. Kentucky, when it comes to noncitizen clients, the dire immigration consequences of criminal convictions mean that it is essential for lawyers to at least identify potential immigration consequences, communicate those consequences with their client, and know when to ask for help from colleagues.
Attorneys representing noncitizen clients should not feel alone. Thanks to the generous support of the Virginia Law Foundation, the Capital Area Immigrants’ Rights (CAIR) Coalition is here to help. On our website, we provide a range of criminal-immigration legal resources to support attorneys, including a chart outlining the immigration consequences of common Virginia offenseshttps://www.caircoalition.org/va-crimes-chart, practice advisories, and crim-imm primers. In addition, we offer individualized consultations on immigration consequences of Virginia offenses for noncitizen clients facing criminal charges, which are free for all Virginia court-appointed attorneys. We also regularly partner with local bar associations to train attorneys on the immigration consequences of criminal offenses in CLEs.
To request a consultation or set up a crim-imm training, reach out to Adina Appelbaum, Senior Attorney at CAIR Coalition, at adina@caircoalition.org.
