The Danger of 46 Words: the Undocumented Immigrant, Military Service, and Deportation

When an undocumented immigrant comes to America in a minority age they grow up knowing under the glory of American Freedoms. As a result many of them choose to serve in the U.S. Military, with Honor and Distinction. While in the service to Our Country they are trained to confront every element of exposure, harm, and sacrifice that is expected of Our US Servicemen and Women. While deployed, to no matter where they are stationed, they are guided in their actions on the battlefield by the Code of Conduct and subject to the authority of the Uniform Code of Military Justice (UCMJ).

While mustering into the service it is emphasized that they are subject only to these laws and codes as any U.S. National would be, there is no exception made for their status as an immigrant. They are members of the U.S. Military and as such they are afforded all the rights and protections of a U.S. Citizen. This is exactly as it should be, and should remain so.

The problem which emerges is when they are mustered out of the service, regardless of their record; no one ever tells them that these rights and protections have been altered in any way. Many of them believe, and rightly so, that they are now afforded the full protection of the U.S. Constitution and are granted the same protections of a U.S. Citizen.

Not all of them are angels in their post military life. They run into legal problems of every imaginable dimension, including as criminal defendants. Now is where new problems really get complex. In the U.S. Supreme Court case Padilla v. Kentucky, the Supremes confirmed that a defense attorney must advise noncitizen clients about the deportation risks of a guilty plea. The problem is that immigration law is very complex and as Justice Stevens pointed out in Padilla it is outside the purview and knowledge of must criminal defense attorneys. So who is and is not subject to the rights of citizenship is difficult to ascertain without the attorney knowing exactly which questions to ask. Further muddying up the process, and as a direct result of the Padilla decision the California Legislature enacted Penal Code Sec. 1016.5 which stated in part:

If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

 (CA.Pen.Code 1016.5 §(a) ) This wording has now been inserted into the text of every waiver form used to take a plea, whether it is a misdemeanor or a felony. Most criminal defense attorneys operate under the assumption that by reading this to their client that it is adequate as to the rules of Padilla. However, that assumption is wrong. Padilla has three prongs, one of which is the advisement prong, the other two are a duty to research the defendant’s background so as to properly advise the client, and the final prong is to attempt mitigation of the charges to one with no immigration consequences.

 So obviously a criminal defense attorney must not only know which charges have a mitigated effect on immigration consequences (to give you an idea of how extensive this knowledge must go, there is a 38 page reference manual covering all of the most used violations from the Health and Safety, Vehicle, and Penal code sections of California law), they must also have an extensive knowledge of what constitutes being a citizen as opposed to a visa holder, as opposed to having a work permit, or whatever varying status of green card their hypothetical client may hold (there are over 40 different type of immigrant and non-immigrant visas). So the once through reading of a single subsection of 1016.5 P.C., consisting of 46 words, does not entirely cover the full range of duty for a criminal defense attorney.

I write about this today because I had a client who was deported. He served honorably in Operation Desert Storm in the early 90s, but subsequently he made some poor decisions, he took a plea, served his prison time, was released, and then was seized for deportation by the INS. He was under the mistaken assumption that his U.S. Military service granted him the protections of a U.S. Citizen in civilian courts. So when his attorney read those 46 words, and every attorney is obligated to read them and explain them to their client, he did not think they applied to him. When the judge, at the sentencing hearing read those 46 words, he did not think that they applied to him the as well. None of these legal actors thought that they had a duty to inquire as to why he would think that, it is a perfunctory act that has far reaching implications above and beyond the consequences of a prison sentence. Justice Stevens stated in Padilla, that any consequences pale in comparison to the ultimate punishment of “banishment” from Our Country.

I believe that anyone who serves Our Country deserves more than the lips service of those 46 words and those legal actors who fail to protect these men and women from the effect of those 46 words need to be held accountable.