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In 2006, a law professor coined the term “crimmigration,” defining the convergence of immigration and criminal law as the most important immigration law development to date.
Twenty years later, an Immigration and Customs Enforcement crackdown on immigrants in the country without legal permission is drawing even more attention to the legal specialty and what the term means now.
“We’re seeing a rise in detention cases. And that detention brings the crimmigration issues to the forefront,” said Kevin Muñoz, founding attorney at Muñoz Legal, a criminal defense and immigration law firm in Indianapolis.
In the past, criminal convictions such as aggravated felonies, crimes involving moral turpitude and controlled substance offenses typically triggered immigration repercussions. However, Indiana attorneys are now witnessing minor offenses leading to immigration issues.
“Driving without a license rarely put us in front of an immigration judge. It does now,” said Paraskevi “Patty” Xidias, an Indianapolis immigration attorney. “Many things that wouldn’t have pulled somebody into an immigration proceeding are now bringing them in.”
In a new evolution of crimmigration, Hoosier criminal defense and immigration lawyers are taking on more work, navigating the complexities of both fields, and reaching out to each other to act in the best interests of their clients.
“We are seeing in the removal defense world a huge increase in the detention and removal of non-criminal immigrants,” said Sarah L. Burrow, an immigration attorney at Lewis Kappes. “However, we are seeing those who do have some sort of criminal history being detained at higher rates than before.”
About crimmigration
Lewis & Clark Law School Professor Juliet Stumpf saw the crimmigration merger taking place on three fronts.
She noted in a 2006 American University Law Review article that the substance of immigration law and criminal law increasingly overlap, immigration enforcement has come to resemble criminal law enforcement, and the procedural aspects of prosecuting immigration violations have taken on many earmarks of the criminal side.
But because “the convergence of immigration and criminal law” broadly describes crimmigration, Xidias notes a clear definition of the legal practice can be hard to pin down.
“Most of us interpret it to mean anytime that there’s any type of criminal issues related to our immigration cases, which can include simply entering the country without permission,” she said. “But it could be DUIs, leaving the scene of an accident. Those are the typical types of cases we see. But they can include more serious crimes like fraud and murder.”
Burrow sees her role in crimmigration as navigating immigration laws for people with criminal charges or convictions.
“[Crimmigration] is the immigration consequences of criminal activity,” she said. “We only practice immigration [law]. But we’re well-versed in crimmigration because we do a lot of removal defense.”
As a firm that specializes in both criminal defense and immigration law, Muñoz Legal is equipped to help people placed into immigration custody and removal proceedings through criminal charges, preventing clients from having to seek additional counsel.
“When people come to us, we can let them know, ‘Hey, we have attorneys who can focus on your criminal case, and then we have attorneys who can focus on your immigration case. It’s an advantage just because of how intertwined it is,” Muñoz said.
What’s changed
While driving without a license and other minor crimes like shoplifting can now lead to immigration problems, Burrow says a noncitizen’s confession to law enforcement also can cause issues.
“Sometimes even admitting to the essential elements of a crime, let’s say, during an arrest, even that can be enough to impact an immigration case, even if there’s no conviction ultimately,” she said.
Burrow acknowledged more green card holders are being detained at airports after returning from international trips because of decades-old criminal records that never mattered before.
“It may not even be something that ultimately renders them inadmissible or removable, but because it exists at all, it’s being flagged, and they’re being put into detention,” Burrow said. “[President Donald Trump’s administration is] casting such a wide net that everyone’s getting caught in it.”
“We are advising against any travel right now, even to our green card holders,” added Xidias. “If they don’t have to go, we’re advising them not to go.”
The lawyers describe the difficulty of securing bonds for noncitizens, even in minor cases such as driving without a license. Muñoz says more judges are classifying this type of misdemeanor offender as a danger to the community.
“We’re also seeing more aggressive immigration detention where they’re not receiving due process. They’re not able to speak to a lawyer,” Muñoz said. “A lot of times, immigration will prioritize removal over most criminal cases. So, they’re not releasing them from custody to be able to even defend themselves against charges.”
An attorney’s duty
With an uptick in detention cases raising awareness about the intricacies of crimmigration, the first step for criminal defense lawyers is to ask each client about citizenship status. That best practice was noted by the Indiana Supreme Court in the majority opinion in Bobadilla v. State, 117 N.E.3d 1272 (2019).
This appellate ruling held “that counsel rendered ineffective assistance” by failing to properly advise Bobadilla about the immigration consequences of a misdemeanor guilty plea. In the original case, the attorney marked “N/A” next to the advisement form paragraph about citizenship and immigration status without asking the defendant, who was a non-citizen.
“That’s a perfect picture of crimmigration in Indiana because it’s the culmination of a lot of different moving parts,” said Muñoz, who represented Bobadilla during post-conviction relief proceedings. “Ineffective assistance of counsel is a crux of the post-conviction issue in the crimmigration world.”
While Burrow urges non-citizens with criminal cases to consult immigration counsel to learn how outcomes could affect their status, a precedent set by the U.S. Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010) states that “defense attorneys must inform non-citizen criminal defendants about the risk of deportation based on a conviction when they are deciding whether to plead guilty.”
“Just to make sure, taking this plea agreement, or if you go to trial, and you’re convicted, what could happen? For a long time, [criminal defense lawyers] weren’t doing that,” said Jordan Paicely, associate attorney at Muñoz Legal.
For example, under federal immigration law, a state-classified misdemeanor carrying a 365-day sentence can be treated as an aggravated felony, which is a deportable offense.
“When you have these crimes, like a theft or what would be considered a crime of violence, literally one day can make a difference,” Paicely said. “If it’s one year, it makes you ineligible for so much relief in immigration. If the defense attorney knew about this, they could help in that negotiation with the prosecutors saying, ‘Hey, can you just take it down one day to save this guy, give him a chance?’”
Working together
Muñoz mentioned that several criminal defense lawyers have called his office asking for advice on immigration issues. The firm has also spoken to the Marion County Public Defender Agency about spotting problems that may arise when criminal defense and immigration law cross paths.
By working longer hours and more days per week, Burrow’s team has become more cohesive since the immigration case influx. The demand has prompted the firm to explore federal practice.
“It would have been unusual in the past for us to file anything in the district court, but now we’re finding that we have to bypass the immigration courts and go straight to the district court for relief, whether that’s through habeas [corpus] or mandamus,” Burrow said. “We’re expanding our practice to accommodate those needs and getting good at something we didn’t regularly do.
“It requires a lot of creative lawyering and for us to stay on top of all the changes.”
Although Xidias refers criminal bond cases to immigration attorneys with stronger criminal defense backgrounds, she uses resources such as the local American Immigration Lawyers Association network to deal with other case challenges.
“We rely on each other a lot because we can’t handle all the workload at this point,” Xidias said. “We share who is able to handle different types of relief and communicate with each other on what we’re seeing and the trends and how we’ve each been able to successfully approach things and what hasn’t worked.”•
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