Criminal Court Judges Need to Stop Providing Immigration Opinions to Represented Defendants

Some New York City Criminal Court Judges Need to Stop Giving Immigration Law Opinions to Represented Defendants.

Once again, I found myself in a situation in New York City Criminal Court in which a well meaning Judge, during a plea, provided what amounted to an Immigration Consequence opinion to my client that created understandable confusion in my client, regardless that I had warned him about the possibility that the Judge would do this.

During a plea to the historically immigration friendly (as a general rule) non-criminal offense of Disorderly Conduct (PL Section 240.20), the Judge in NYC Criminal Court advised my client that his plea to disorderly conduct may result in his removal from this country, denial of admission to this country, or denial of naturalization. In order to proceed with the plea, the Judge expected my client to acknowledge this statement as reality.

The problem of course was that what the Judge was expecting my client to acknowledge as reality is exactly the opposite of the specific opinion, tailored to my client’s immigration situation, that I had provided him. Further, it was exactly the opposite of the specific opinion, tailored to my client’s immigration situation, that my client obtained from an immigration-only lawyer who was retained for exactly the purpose of providing a second opinion. Therefore, after not only hearing from me that the disorderly conduct plea would not have immigration consequence to him, but also hearing it from a specially hired expert that the disorderly conduct plea would not have immigration consequence to him, here was this Judge in NYC Criminal Court trying to make my client acknowledge that both of my client’s lawyers were wrong and that what he was doing might just get him removed from the country.

This is wrong.

The Court should not be in the business of providing legal opinions about collateral consequences to other people’s clients, especially when those opinions are wrong.

I get what Judges who do this are trying to do, and the general notion is a good one. They are trying to make sure that a defendant who settles his case in Criminal Court does not return to Court claiming that he was unaware that his settlement was going to create immigration problems for him in the future. They don’t want to have to deal with motions to vacate disorderly conduct pleas years after the fact. I get it. And there is a way to accomplish this without providing bad legal advice to someone else’s client.

Just say what you mean.

How about something like this, instead:

As a general rule, if you are not a citizen of the United States, the resolution of this matter might have negative consequences for your immigration status, including interfering with your ability to remain in the country, your ability to reenter the country, and even your ability to become a citizen. You should understand that I offer you no advice or guarantee one way or the other regarding any of these immigration consequences in your particular case. That is a matter between you and your attorney. Unless you now tell me otherwise, I will assume that you have obtained legal advice regarding the wisdom and risks of this plea bargain arrangement, including immigration consequences if that is relevant to you. If that is wrong, and you need more time to review the wisdom of this plea bargain arrangement for any reason, I will give you that time now. Based on what I have just said, would you now like to take some more time to talk to your lawyer or would you like to proceed? [If agrees to proceed…] Since you have elected to proceed, do you agree that you understand that this Court is making you no promise or prediction about how this plea will influence your immigration status if you are not a citizen of the United States?

Something like the above clearly separates the Judge from the legal opinion, and distinguishes between the broad general concept that the resolution of any criminal matter “might” influence immigration status, with what could easily be confused for specific legal advice being given to the defendant by the Judge. The above also makes clear exactly what the Court is trying to accomplish - that is to make sure that the record is clear that the Court has made no promises regarding immigration consequence and that the defendant is unable to credibly complain that he somehow thought that the plea could not under any circumstances create difficulties for him in the future in immigration court.

But the Court has no business providing what clearly sounds like legal opinions to represented defendants that in many cases will be exactly contrary to the advice obtained from counsel hired to represent them. When someone has reviewed his situation with an immigration lawyer, and the immigration lawyer has advised the client that the plea will not create problems for his immigration status, it is just wrong for the Court to give the opposite advice (that it might actually create problems) AND insist that the defendant acknowledge this contrary legal advice on the record in order to get the settlement done.

Yes, I can prepare clients for this and explain that the Court is really simply looking to distance itself from a promise of “no consequence” and that the Court is simply noting the very general principle that immigration consequence can occur in some situations. But it forces me to sound like some sort of fast talking salesman advising his customer not to pay attention to the language of the finance agreement because it is just “standard language”. And many clients still have a hard time with it when they are on the record and the Judge is up there asking them questions.

My client, for example, thought long and hard when the Judge was insisting that he agree that what he was doing might damage his status in the this country, despite getting advice from me and an immigration only lawyer. In the end, with no real option, he acknowledged on the record exactly the opposite of the legal opinion he got from me and the immigration lawyer he hired for a second opinion.

That isn’t right.

Without further clarification as my suggestion above, well meaning Judges are giving legal advice to clients who have their own lawyers.