Frank, like other immigration lawyers interviewed, says that the criminal defense bar does not get enough training in immigration law or does not want to know about it. “I’ve talked to different people in the state public defender’s office and those that I’ve talked to have felt they were not getting adequate training in the immigration consequences,” he says.
Gerald Boswell, a retired staff attorney of the Public Defender’s Office in Ocean County, who still handles a death-penalty caseload, goes further. “I would join with the immigration bar in saying there should be a compulsory ICLE seminar [for public defenders] on this. It’s probably not that technical. There’s never been a seminar on immigration and criminal law statewide [in the Office of the Public Defender].”
Boswell adds: “Even though I’ve been doing criminal law for 31 years, I am not sophisticated enough to know all of the consequences [in immigration]. So sometimes you’re not certain if your client takes a plea to a lesser charge [what will happen]. I’m not up to date enough.”
Joseph Krakora, an assistant deputy public defender in Newark, says immigration seminars are scheduled for lawyers in his office. “The public defender’s office tries to ensure that its lawyers try to understand the possible ramifications of guilty pleas,” he says. “But the question of whether or not a defendant will be deported by virtue of a guilty plea is only one factor in any decision by a client.”
Private criminal-defense lawyers likewise say that the immigration effects of a conviction are not their foremost concern. “My first responsibility as a certified criminal trial attorney is to do the best I can on your criminal charge, and any ramifications as far as immigration goes, that’s not my primary concern,” says Mark Anderl of Anderl & Oakley in Perth Amboy and Princeton. Anderl adds that he always advises his immigrant clients to consult an immigration attorney. But, he says, “If someone is caught dealing drugs what happens as far as immigration is concerned � that’s not really my main concern.”
STATE COURT UNRECEPTIVE
A criminal defense attorney’s failure to factor in the immigration consequences of a plea bargain was found to be no ground for relief in State v. Myrie,A-6045-00T4, an unpublished Appellate Division decision handed down on Sept. 3.
Claude Myrie, a Jamaican by birth, appealed the denial of his petition for post-conviction relief on the grounds that he had ineffective counsel. His criminal defense attorney, he claimed, had not advised him that pleading guilty to aggravated manslaughter would subject him to deportation once his sentence was served. Myrie had not lived in Jamaica since he was 10 years old.
Myrie’s appeals lawyer, solo practitioner Nina Rossi of Sergeantsville, showed that his original counsel had not bothered to ask Myrie whether he was an immigrant or a citizen, and immigration law did not enter his mind. “He [the lawyer] did not recall any instruction or training regarding asking clients whether they were citizens,” her brief states.
But Myrie, on advice of counsel, had signed a plea deal that said, “Do you understand that if you are not a United States citizen or national you may be deported by virtue of a plea of guilty?” Myrie wrote “N/A.”
Judges Philip Carchman and Anthony Parrillo affirmed the trial court and denied Myrie relief on the basis that the glitch did not affect the outcome of his case.
Still, Rossi points out that the question Myrie answered, commonly used on plea deal forms, contains a bureaucratic tautology worthy of Joseph Heller’s Catch-22. It is impossible to answer the question in any way other than “yes,” as the question asks not whether the defendant knows that he might be deported, but whether the defendant understands the statement. A defendant who does not understand the statement � a client with limited English skills, like many immigrants, for instance � should not be able to answer the question at all. “Even the trial court commented that the question makes no sense,” Rossi says.
Although prosecutors have no interest in immigration consequences, the assistant prosecutor who handled the Myrieappeal for Cumberland County says that at if nothing else, the question serves as a red flag. ” If the attorney goes over the question with the defendant then even if they may answer incorrectly the defendant should have at least the understanding of what the plea entails,” says Keith Bursack.
And in immigration court it is never to a client’s advantage to claim that he or she got good advice before the criminal conviction. That would only make their asylum claim less sympathetic, adds Krakora.
Robert Gluck, a former Middlesex County prosecutor and now a partner practicing criminal defense at Mandelbaum, Salsberg, Gold, Lazris, Discenza & Steinberg in New Brunswick, believes the storm between immigration lawyers and their criminal defense colleagues is more teacup than hurricane-sized. “There’s very little that a criminal defense attorney can do within the framework of the scope of his duties. Common sense tells them they should call an immigration lawyer.”
Lastly, there is also a potential financial motive behind the immigration bar’s concern for the rights of criminal defendants: Frank says he’s willing to give free advice to public defenders over the telephone, but a more detailed consultation would require a modest fee.