GENERAL INTEREST Representing Noncitizen Defendants: A Defense Attorney’s Ethical and Constitutional Obligations by Morgan Macdonald Defense attorneys representing noncitizens have an obligation to provide accurate advice concerning the immigration consequences of criminal convictions. In order to fulfill this obligation, defense attorneys must be knowledgeable about developments in immigration law, including the new “deferred action” programs announced by President Obama in November 2014. 1 These new programs do not modify the categories of criminal offenses that trigger removal ( i.e. deportation) under federal immigration law, but maintaining eligibility for deferred action may now rank as one of the highest priorities for noncitizens facing criminal charges. Accordingly, in developing a litigation strategy, a defense attorney should account for the possibility that his client’s conviction could lead to severe — and often disproportionate — adverse immigration penalties, such as deportation, and could also make the client ineligible for important immigration benefits, including deferred action. Litigation Strategies Must Account for Differences between Immigration and Criminal Law Representing a noncitizen in a criminal case fre-quently requires a litigation strategy that differs significantly from the strategy used when defend-ing a citizen. In many criminal cases, the most important factor is whether (and for how long) a defendant will be required to serve time in prison. Decreasing jail time is also a high priority for noncitizen defendants but is often overshadowed by a noncitizen’s desire to ensure that he does not become deportable or inadmissible 2 as a result of his criminal case. Accordingly, a “good” result in a criminal case for a citizen defendant ( e.g. a sus-pended imposition of sentence) could lead to dire consequences for a noncitizen, particularly one who is lawfully present and has US citizen family members. One notable reason that a criminal case may lead to a disparate outcome for a noncitizen defendant is that the definition of “conviction” under the Immigration and Nationality Act (INA) bears little resemblance to the way that term is defined under state law. For example, under the INA, a noncitizen can have a “conviction” for immigration purposes even after he has success-fully completed a pre-plea diversion program or when his record has been otherwise expunged. 3 Moreover, the INA makes no distinction between 12 VIRGINIA LAWYER | February 2015 | Vol. 63 | GENERAL INTEREST FEATURES whether a prison sentence is imposed or suspended — the immigration consequences are usually the same. 4 It is therefore critical for a defense attorney to know when his client will have a “conviction” under the INA and to understand the impact of any related “sentence.” Case Examples — The Importance of Accurate Advice To illustrate the importance of an attorney pro-viding accurate advice concerning immigration consequences, consider the following examples. First, take the case of Roberto, 5 a 22-year-old lawful permanent resident (LPR) 6 from Honduras who came to the United States as a child with his parents and siblings, all of whom are now LPRs or US citizens. Roberto works two jobs to support himself but struggles with mental illness and alcohol addiction. One evening, Roberto drank too much and could not find his way home so he entered a garage connected to another person’s house and fell asleep. Upon finding Roberto in the morning, the homeowner called the police and Roberto was charged with felony burglary under Virginia Code 18.2-91, an offense regularly deemed an “aggravated felony” under the INA if it is accompanied by a prison sentence of one year or more, regardless of whether the sentence is suspended. 7 www.vsb.org