A Hidden Crimmigration Lesson Courtesy of Judulang v. Holder

The recent Supreme Court decision in Judulang v. Holder was a narrow but welcome victory among immigration advocates.  It unanimously rejected the Board of Immigration Appeals (BIA) approach to determining whether to grant discretionary relief from deportation.

More to the point, Judulang is instructive because it sheds more light on the complexity of the intersection of criminal law and immigration, also known as crimmigration.  The immigration consequences of criminal violations have become increasingly important after Padilla v. Kentucky.  There, the Supreme Court held that criminal defense attorneys have an affirmative duty to warn non-citizen defendants about deportation consequences.  This duty cannot be taken lightly when non-citizens constitute 47.5 percent of offenders in the federal system and almost 97 percent of all federal convictions result from guilty pleas.  Among non-citizens, the guilty plea rate is even higher (99.2%).

The Judulang Court took a different path than Padilla, but the morals of the stories are essentially the same: the most effective representation of non-citizen criminal defendants should involve early consultation with immigration attorneys.  A brief overview of Judulang helps illustrate the point.  After living in this country as a lawful permanent resident for approximately fifteen years, Mr. Judulang was involved in a fight in which someone else shot and killed the victim.  Mr. Judulang pleaded guilty and was convicted as an accessory to voluntary manslaughter in 1988.  Seventeen years later in 2005, Mr. Judulang pleaded guilty to a second crime involving theft.  The later incident triggered an investigation by the Department of Homeland Security (DHS), which had the option of charging Mr. Judulang with deportability based on the older 1988 conviction, which is is exactly what DHS did.  Consequently, Mr. Judulang was then designated as an aggravated felon, a distinction making deportation nearly inevitable. 

Mr. Judulang argued on the grounds that drastic amendments to immigration law since the time of his conviction had not only changed the applicable rules, but also the relief available to him.  Although he was not wrong, an immigration judge issued a deportation order which was affirmed by the BIA using the “comparable grounds approach” ultimately rejected in this case.

The dangers of plea bargaining are well-known within the criminal justice system, and the issue deserves no less attention in the immigration context.  In Judulang, there was a clear incentive to plead guilty for the first offense.  Mr. Judulang’s six-year sentence was suspended and he was immediately released.  Yet, had the Supreme Court upheld the BIA’s approach as most circuits had, Mr. Judulang would have been deported as an aggravated felon unable to ever lawfully re-enter the United States.  With facts like this, it is entirely possible that a defendant would prefer to serve a finite period of incarceration rather than spend the rest of life unable to return to the U.S. 

Judulang also illustrates a problem with the majority opinion in Padilla.  As Justice Alito noted in his concurrence, it is problematic to try to draw a distinction between when deportation is a definite consequence and when it is merely a possible consequence.  Looking at Judulang, it is not hard to see that such a distinction is easily lost in the labyrinth of immigration laws.  It is uncertain how criminal attorneys could be expected to properly advise non-citizen clients without the benefit of consulting experts in immigration.  It would not be surprising to see more litigation to this effect.

Ashley Lam

Line Editor, Criminal Law Brief


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