Another appellate court, the Massachusetts Supreme Judicial Court, has vitiated conviction of an alien by permitting him to withdraw his guilty plea, as a consequence of not having advised him of the potential immigration deportation consequences of such a plea. The court’s findings can be seen here.
The irony is that the presiding judge did, in fact, warn the alien that there might be such consequences, but apparently did not hew to the precise verbiage mandated by the Massachusetts statute that makes this a requirement.
Even in the absence of a specific statute, such warnings have become the court-precedent-mandated law of the land, putting the onus on cops, prosecutors, and judges — and even defense lawyers, lest they later be accused of inadequate counsel — to be sure that each and every alien facing a criminal charge is made aware that conviction carries with it the potential for removal.
This is a puzzle to me. There is no statutory or court-mandated requirement that citizen defendants be told that, should they plead guilty, there is a chance that they will go to jail and be separated from spouses, children, siblings, and parents. That’s because it’s self-evident. I don’t think it’s much less so for aliens. To believe otherwise — assuming the alien is of sound mind — is to suppose that he or she lives in a hermetically sealed bubble precluding them from all of the social and sensory input around them that makes clear that there will be consequences. This is a supposition to which I can’t readily subscribe, stripping as it does aliens of their social responsibilities to obey the law and ripping apart the causal relationship between misbehavior and consequence.
But the state of the “law” is what it is. For this reason, I have a modest suggestion: Each and every alien seeking admission to the United States should, at the time he or she applies for an immigrant or a nonimmigrant visa, or at the port of entry for visa waiver entrants and parolees, be obliged to sign a short statement of acknowledgement that conviction of criminal statutes may carry with it the consequence of removal from the United States. Maintain those acknowledgements in a database; routinely and periodically make its existence known to police, prosecutors, and the judiciary at every level; and, on request, provide a certified copy of the signed acknowledgement for use in criminal proceedings as evidence of the alien’s cognition.
While this procedure of course leaves out the wide universe of aliens who crossed the border illegally and thus have never been admitted, at least some portion of that group could also be provided and obliged to sign an acknowledgement if/when they are apprehended by the Border Patrol or ICE. In that way, if they are later released on bond or their own recognizance, and go on to commit a criminal offense, they cannot claim to be ignorant of the consequences, including the possibility that such a conviction may render them ineligible for asylum or other forms of relief from removal.
This content was originally published here.