Labe Richman is a criminal defense lawyer who is very sensitive to the immigration consequences of convictions.
He is a former law professor and published author with twenty-eight years of experience agressively representing immigrants in criminal cases. I use the web address of www.NYCriminalAndImmigrationLaw because I care a great deal about the relationship of criminal law to immigration law. I believe that it is critical that a NY criminal attorney be very sensitive to the effect the criminal case will have on the immigration status of the client. This can effect the client’s ability to obtain lawful status, to travel out side of the United States or the ability to obtain citizenship.Many times the immigration consequences of a case are much more serious than the criminal consequences. For example, a marijuana conviction that involves a 25 dollar fine can lead to total banishment for certain clients. It is very important that aliens obtain criminal defense counsel that cares just as much about their immigration situation as their criminal case.Often a NY criminal defense law firm is called upon to negotiate pleas of guilty for their clients. However, certain offense have dire immigration consequences while others have immigration consequences that are bearable. It is critical that alien defendants have counsel that know the difference.In my post-conviction practice I have seen defendants who negotiated pleas of guilty that led to deportation with no remedy, when a slight change in the plea agreement could have avoided deportation. Having an attorney who considers the immigration implications can have a huge impact on a client’s life.This does not just apply to defendants who plead guilty. I have also seen defendants who were offered deals before trial that would have avoided deportation but after trial and conviction, they were guilty of offenses and received long sentences that led to deportation with no remedy. It is very important that a client know what the immigration consequences of going to trial are. Of course, it is also crtical that an alien know the penal consequences of going to trial. That is why Labe Richman can be so helpful to aliens because he combines expertise in both areas, criminal and immigration law.And, that is why our website name iswww.NYcriminalandImmigrationLaw.com orhttp://www.laberichman.com/NYCriminalAndImmigrationLaw.aspx.The U.S. Supreme Court agrees with these sentiments and in Padilla v. Kentucky, it has finally ruled that a defendant’s constitutional right to counsel includes the right to an attorney who knows about and informs him of the immigration consequences of the conviction. This is a huge step forward for immigrant defendants and should help those trying to vacate old pleas. See, the ConvictionAttack section of this website (on the left) for more information. Labe Richman has a great deal of experience reopening old cases that are causing immigration problems.Labe Richman also has a great deal of experience handling investigations by administrative agencies that often deal with immigrants, such as the Division of Motor Vehicles (DMV), the State Department (regarding passport fraud), the Social Security Administration, DHS, ICE, and CIS regarding immigration fraud.Labe Richman has represented immigrants in criminal cases all around New York City in State and Federal Courts. He has experience in courts in Manhattan (New York County), the Bronx, Queens, Brooklyn (Kings County), Staten Island (Richmond County), Nassau County (Mineola) and Westchester County (New Rochelle, Yonkers, White Plains, Bedford). He has handled post-conviction work throughout the entire state.For information about Labe Richman’s abilities and accomplishments, click on “Firm Profile” to the left. If you have any questions, please do not hesitate to call our office or email me at Labe@LabeRichman.com .Contact this NY criminal law attorney today.When you face possible conviction, you need an attorney competent and experienced in NY criminal law. Call Labe Richman, NY criminal defense attorney in NY at 866-986-3534 or contact us online.
Here is an article I wrote applauding the Brooklyn District Attorney’s Policy on including immigration consequences in his crafting of plea bargaining.
The Iceberg Below the Water: Consideration of Immigration Consequences in Plea Bargaining.
By Labe M. Richman
Kings County District Attorney Eric Gonzalez’s announcement on April 24, 2017, that his office would consider immigration consequences in the plea-bargaining of criminal cases bears some discussion to understand the legal, ethical, and equitable basis for this policy. See, Denney, Andrew, DA Policy Aims to Limit Immigration Impact for Low-Level Offender, N.Y.L.J. p. 1, April 25, 2017; Feuer, Alan, New York Times, Prosecutors in Brooklyn Aim to Limit Deportations, Section A, p. 21, April 24, 2017.
The reason that a well-crafted plea bargain can have a huge impact on an immigrant’s life is that, in most cases, it is the statutory elements of the crime of conviction, not the facts of the offense, which govern the extent of the immigration consequences of a criminal disposition. Mathis v. U.S., 126 S.Ct. 2243 (2016); Moncrieffe v. Holder, 133 S.Ct. 1678 (2013); Descamps v. United States, 133 S.Ct. 2276 (2013); Matter of Velasquez-Herrera, 24 I & N Dec. 503 (BIA 2008); INA 237(a)(2)(A)(i)(IHII), 8 U.S.C. § 1227(a)(2)(A)(i)(I)-(n)(2006); see also Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1307 (11th Cir. 2011); Jean-Louis v. Att’y Gen., 582 F.3d 462, 473-74 (3d Cir. 2009). This is called the “categorical approach” where the immigration court takes the generic legal category which leads to deportation or inadmissibility and determines whether the statutory elements of the defendant’s crime of conviction fit that federal category. [Also in federal criminal cases, district courts will use the exact same approach in determining whether a past conviction fits within a sentencing enhancement provision. Mathis v. U.S., 126 S.Ct. 2243 (2016)]. The rationale for the categorical approach is that it avoids time-consuming litigation over factual matters from long ago and instead involves a more simple and contained analysis of the criminal statute underlying the conviction.
This categorical approach makes plea bargaining extremely effective in avoiding or ameliorating immigration consequences. If the facts controlled the consequences, plea bargaining could not erase the effect of the victim’s or the police officer’s version of what occurred as sworn to in the complaint, grand jury testimony, or as admitted by the defendant in his plea allocution. If the elements of the statute control, then the parties can pick a statute of conviction which fully punishes the defendant for his conduct but avoids disproportionately severe immigration consequences.
There is no question that the U. S. Supreme Court has given its blessing to consideration of immigration consequences by prosecutors in their search for justice. In
the landmark case of Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the Court emphasized that bringing deportation into the plea bargaining process “can only benefit the State and non-citizen defendants . . .”. Padilla v. Kentucky, 130 S.Ct. at 1486. The reason for this is that the immigration result of a conviction after trial may be so severe that a comparable plea-disposition that avoids mandatory deportation will be so attractive that no sane defendant would waste the government’s resources at trial. This creates a strong motivation to dispose of the case quickly while accepting significant penal consequences that benefit the State. This language in Padilla has put to rest arguments that such plea bargaining was somehow improper, illegal, or a violation of federal drug and immigration policy.
The Past President of the National District Attorney’s Association, Robert Johnson, stated in the St. Louis Law Review that the “Supreme Court’s recognition of the importance of collateral consequences to a just resolution of a matter should influence a prosecutor’s views.” Johnson, Robert, A New Era for Plea Bargaining and Sentencing: The Aftermath of Padilla v. Kentucky: A Prosecutor’s Expanded Responsibilities Under Padilla, 31 St. Louis U. Pub. L. Rev. 129, 136 (2011). Johnson stated:
Our job, our duty is to seek justice. How can we ignore a consequence of our prosecution that we know will surely be imposed by the operation of law? . . . These collateral consequences cannot easily be changed or bargained away when justice requires them. But we must consider them if we are to see that justice is done . . . . As a prosecutor, you must comprehend this full range of consequences that flow from a crucial conviction. If not, we will suffer the disrespect and lose the confidence of the very society we seek to protect.
National District Attorney’s Association, Message from the President, February 14,
2007. These sentiments were echoed by our own Court of Appeals in People v.. Peque, 22 N.Y.3d 168 (2013), where it acknowledged that immigration consequences are of “tremendous importance” that they have a “grave impact” and are “certain, pivotal and prevalent,” constituting an “enormous penalty” where someone is taken away from their family and the family loses its financial support, where the defendant loses “the blessings of liberty” and is saddled with a “harsh superadded exaction,” that is “uniquely important,” and is a “penalty more dreaded than prison.” 22 N.Y.3d at 188-89, 192, 207-208.
Another important development is that the ABA’s Criminal Justice Standards for the Prosecution Function have incorporated these immigration concerns. In deciding which charges to prosecute or dismiss in a criminal case, the standards suggest that a prosecutor consider “whether the authorized or likely punishment or collateral consequences are disproportionate in relation to the particular offense or the offender.” Fourth Edition, Criminal Justice Standards for the Prosecution Function (“CJSPF”)(2015), Standard 3-4.4(a)(vi). This standard is particularly applicable when probation or fines are imposed because in many cases the immigration consequences could be mandatory deportation, or lifetime bars to a green card or citizenship. The standard for plea bargaining takes the same position, noting that the “prosecutor should consider collateral consequences of a conviction before entering into a disposition agreement.” CJSPF, Standard 3-5.6(c); also see, CJFPS, Standard 3-8.5 (interests of justice can influence a prosecutor’s disposition of a post-conviction motion).
Of course, consideration of such consequences may not win out for immigrants in the end when violent crimes are involved and the District Attorney believes that collateral consequences are fully appropriate. However, the consideration of collateral consequences when the penal purpose of the prosecution can still be fully actualized, are important steps in the right direction. Mr. Gonzalez’s policy also has the added effect of making his office’s convictions more immune to attack. Many prosecutors are trying to foreclose post-conviction attacks by handing defense counsel boilerplate advisals during guilty pleas that seek waivers of counsel’s duty to consider such consequences in the conduct of the defense. Such band-aid waivers are much less effective than Mr. Hernandez’s course which seeks to actually effectuate counsel’s duty under Padilla so that no further litigation is needed or possible. Other District Attorneys in New York should consider following Mr. Hernandez’s lead.