Challenges at Every Phase in ‘Crimmigration’ Practice

Attorneys discuss challenges bias presents for representing immigrants in criminal cases

Current chaotic practices in the U.S. for addressing unlawful immigration such as family separations and varying municipal approaches to cooperating with Immigration and Customs Enforcement might make it seem that there’s little established law for the legal processes undocumented immigrants are entitled to. But attorneys who do immigration and criminal defense work say biases in the court system toward immigrants long predate the current administration. And the biases can show up at every phase of the criminal process, from pretrial release to penalty determination.

“The Constitution does not single out citizens when it comes to the due process clause,” said Arnulfo Hernández, managing partner of Hernández & Associates, adding both documented and undocumented immigrants are entitled to due process protections. “Those are fundamental rights.”

Firm shareholder Christine Hernández said criminal defense attorneys face a delicate balance when representing immigrants because biases toward their clients can derail negotiations with prosecutors. But attorneys do have a duty of candor to the court that requires them to be honest about their clients’ citizenship status if asked.

“You don’t want to come out and say, ‘My client’s an immigrant,’ because some prosecutors don’t want to give an immigration-friendly plea,” she said. “So it’s a very fine line for criminal defense attorneys when they’re representing their clients because mentioning immigration might get you a bad deal or no deal.”

Prosecutors who appear immigration-friendly can face judgment in the court of public opinion. In 2006, then-Denver district attorney and gubernatorial candidate Bill Ritter’s office saw criticism when it came to light that his office had allowed dozens of defendants to plead guilty to agricultural trespass charges in lieu of more serious crimes they were accused of committing in order to avoid deportation.

A similar dilemma can come up in sentencing, Christine said, because judges may base their decisions on defendants’ immigration status, such as whether to grant probation. “Knowing that really determines how you’re going to argue or what cards you’re going to put on the table.  It’s about knowing your judges, I think.”

To read this story and other complete articles featured in the September 10, 2018 print edition of Law Week Colorado, copies are available for purchase online.