Navigating New Realities: Criminal Defense in the Wake of Immigration Reform

It is undeniable that we live in a politically divided country. Regardless of what side of the aisle you find yourself on, the commonality that binds each of us is that changes to the way we operate as criminal defense attorneys are imminent based on the current administration’s immigration policies and enforcement. Understanding these changes is necessary to be able to offer the best representation to our clients.

The concept that we, as criminal defense attorneys, need to understand the collateral consequences of criminal convictions to properly advise our clients is far from a new one. We find ourselves trying to answer ancillary concerns regularly. Haven’t we all had countless conversations explaining to our DUI clients PENNDOT’s ever changing rules on suspensions (usually only to find they have changed again), or whether expungement of a charge that was diverted through the Accelerated Rehabilitative Disposition program is automatic in the particular county in which they were charged, or whether a retail theft conviction prevents our client from returning to any Target anywhere, or just one individual store location.    

Prior to 2025

In fact, criminal defense attorneys have long been required to have some basic knowledge of immigration law to advise clients of the potential collateral deportation consequences of criminal convictions.  In the landmark 2010 decision Padilla v. Kentucky the Supreme Court established that defense attorneys have a duty to inform their non-U.S. citizen clients of potential immigration consequences resulting from a guilty plea, even when those consequences may be obvious. Padilla found it would be unconscionable for an attorney to remain silent on the issue of immigration consequences. It has become routine for a “Padilla warning” to be included in guilty plea written and oral colloquies across the Commonwealth. As a result, it has been a vital practice to ascertain a criminal client’s immigration status prior to entering a guilty plea.   However, under Padilla, our obligation ended with a warning of the potential collateral consequence of deportation upon the entry of a guilty plea. This obligation has since been expanded.

Until recently, advising a client to consult an attorney who specializes in immigration law was primarily based on charges they were currently facing. Often an immigration specialist could, with near certainty, provide a list of charges that were grounds for deportation and which were not.  

Prior to January of this year, it was common practice for clients who were taken into custody by the Department of Corrections to be screened by the Department of Homeland Security Agents. Depending on the charges they incurred, an incarcerated client could face the imposition of an ICE detainer. Often the detainer and the outcome of deportation proceedings were directly correlated to the outcome of the case. For example, a lawyer could confidently advise a client receiving ARD that they had minimal deportation risks.

Beginning in January 2025

On January 20, 2025, several executive orders were issued which resulted in drastic changes to U.S. immigration law and policies. Amongst these was an order entitled “Protecting The American People Against Invasion,” which, inter alia, reversed policy decisions made by the previous administration.  The section, “Efficient Removals of Recent Entrants and Other Aliens,” abolished most of the policies and practices we previously considered common when advising non-U.S. citizen clients. This section of the Executive Order directs D.H.S. to focus on the “efficient and quick” removal of undocumented immigrants. Other sections in the Executive Order pertain to funding or resources, registration requirements, discussion of civil penalties, and much more. The official White House website reports an increase of 627% in ICE arrests within the first month of President Trump’s administration.

So, what does this mean for those of us who represent criminal defendants who are not U.S. citizens?  Perhaps you have seen updates from our colleagues in Adams and Chester Counties discussing clients being arrested outside District Courts, or stories of first time DUI offenders being arrested after their preliminary hearings. I was representing a 19-year-old client in Cumberland County who had been arrested for Access Device Fraud. After posting his bail, as he was preparing to walk out of the county jail, he was picked up by several Department of Homeland Security agents.  He remains held in a federal ICE facility as of the time of this writing.

How do we best represent our clients’ interests in the face of what is clearly a very different and more aggressive immigration law enforcement posture? While some of the recent executive orders are being challenged in state and federal courts throughout the country, it is important to have a better understanding of the potential impacts on our clients of the changes that already have been put in place.

Understanding The Executive Orders

Stricter enforcement for those born in or with contacts to “high-risk” countries.

Through various executive orders, the D.H.S. is now directed to implement “enhanced vetting” rules for visa applicants, undocumented immigrants and current green card holders. The intended purpose of this stricter scrutiny is to identify any ties to “high risk” countries, regardless of what the person’s current country of nationality is. Those that D.H.S. deem to have such a connection will likely be denied visas even if they already have them and are seeking renewal.

Criminal Defense Takeaway: It is important now to ask the right questions of our clients early in the case.  Find out not only what their country of nationality is, but also where they were born, where their parents were born and whether they have any family in a country that is designated high risk.  While it does not appear that a comprehensive list of “high risk” countries has been published, an immigration expert would be able to advise on the level of risk a client faces. 

The use of “expedited removal” is expanded.

Since 1996, the use of expedited removal has been permitted. Such removal allows for the deportation, usually within 24 hours, of undocumented individuals without a hearing and with no method to appeal the removal. However, until recently, expedited removal was reserved for limited sets of circumstances. Over the years, the use of this deportation method was curbed even further. For example, individuals seeking asylum for fear that returning to their home country would put their lives in danger, would not be deported using this expedited removal in the past. However, with the introduction of these new executive orders, those exceptions will no longer apply.

Criminal Defense Takeaway: In the past, deportation proceedings often occurred after a criminal proceeding was completed.  With expedited removal, the status of the criminal case is no longer relevant. Therefore, it is important during the client interview process to get the contact information for a family member who will be a point of contact, and who will inform you immediately of such an apprehension.  In addition, if your client has an immigration attorney, touch base with them immediately.  If your client is subjected to expedited deportation, you won’t have much time.  They may be gone within 24 hours.  

Enforcement of registration requirements.

All undocumented aliens over the age of 14 are required to register themselves with the Federal Government within 30 days of arrival in the United States. This registration includes fingerprinting.  While this registration requirement has been in place for decades, non-compliance was not previously enforced.  Under the newly signed executive orders, failure to register will result in civil and criminal consequences. 

Criminal Defense Takeaway: It is unclear whether these fingerprints will be added to any law enforcement databases for future comparison.  The extent to which the fingerprints can be utilized by other authorities hasn’t been defined. For example, if your client is the suspect of a crime, could those fingerprints be utilized for evidentiary comparison?  Many question the legality of this practice as a potential violation of the Fourth Amendment.  

Federal funding pulled from sanctuary cities.

A sanctuary city is one in which the local government has decided to limit or deny cooperation with federal authorities in implementing immigration laws. The new executive orders direct federal officials “to ensure that so-called ‘sanctuary’ jurisdictions, which seek to interfere with the lawful exercise of Federal law enforcement operations, do not receive access to Federal funds.” 

Criminal Defense Takeaway: According to data published by the Center for Immigration Studies in 2024, 14 counties in Pennsylvania had either been declared as sanctuary counties or deemed to have sanctuary policies.  Philadelphia County has operated as a sanctuary jurisdiction for over a decade.  Until now, clients arrested in sanctuary counties have been protected from having their information shared with D.H.S.  With the threat of  federal funds being withheld, these counties may change their policies on cooperating with immigration authorities. 

Practical Implementation For Our Clients

ICE holds

At the time of their criminal arrest, your client may be unaware if an ICE hold exists. If your client is taken into custody and bail is set, you will need to determine whether such a hold exists prior to advising them whether to pay their bail on the criminal matter. The practicality is that if bail is paid and there is an ICE hold, your client will likely be taken to an ICE facility immediately. In addition, despite being incarcerated, your client will not be accruing time credit on the underlying charges.

In contrast, if your client does not have bail set, it is important to know that an ICE detainer may still be filed against your client. In these cases, there will be a warrant that makes them susceptible to being apprehended at a court appearance. It is crucial in this situation to know whether the county in which you are practicing is cooperating with federal immigration agencies. If so, it can make accurately advising your client particularly difficult. Knowing that your client may be detained if they appear, for example, for a preliminary hearing, you arguably have a duty to advise them of this potential. Inevitably, your client may then ask what would occur if they did not appear in court. In this situation, it would be improper to advise your client not to appear and to ignore a court order. However, one thing to keep in mind is that in some situations you may be able to waive your client’s appearance at one or more hearings. While this may delay the ultimate consequence, it also might allow your client time to seek proper immigration representation.

Deportable charges.

For years, attorneys were able to advise clients of potential deportation consequences based on their charges. It was readily knowable which crimes or classes of crimes were eligible for deportation. Some of the deportable crimes included crimes of moral turpitude, aggravated felonies, domestic assault, controlled substance cases and firearm offenses. Previously, there was an exception for certain crimes punishable by less than one year of incarceration where the actual sentence served was less than six months. In addition, what a client was charged with would be weighed against the amount of time they had spent in the United States when deciding whether to deport them.

This, however, is no longer the case. Those convicted of minor offenses and sentenced to less than six months imprisonment may now face deportation proceedings. There is an increased focus on the country an undocumented individual is from and whether there is a connection to a designated “high risk” country, regardless of what charges they face or potential sentence they may receive. This is important to note as clients who are charged with minor offenses may now be facing deportation when that was not the situation just a few months ago.

Practically speaking, if you have a client who was born in a “high risk” country, regardless of how long they have been in the United States, there is the risk of deportation whether they are charged with a traffic offense or a felony.

Voluntary departure.

In certain circumstances, an undocumented individual may apply for voluntary departure which has also been referred to as self-deportation. This process can avoid the detention procedure, allow individuals time to arrange to return to their country of origin, and allow individuals to apply for visas to return to the United States after a shorter time period. This contrasts with removal, which follows a period of incarceration. Individuals who are removed by deportation often do not have the ability to control the geographic location where they will be returned. In addition, removed individuals have stricter bans on returning to the United States than those who are granted voluntary departure. 

It is important to note that not all individuals qualify for voluntary departure. For example, those charged with aggravated felonies, drug offenses and major theft offenses may not apply.  However, for individuals charged with less serious crimes who now face detention and deportation, this may be an option.

In Conclusion… Or Is It Just The Beginning?

As in any time of change, the apprehension that we face can only be quelled by knowledge. The unknown is terrifying for our clients. While much of the near future is uncertain and the effects these changes will have on our practice is unclear, it is certain that the potential for deportation is currently a harsh reality for many of our non-U.S. citizen clients.

To best advise those clients, it is crucial to understand the new executive orders and their potential consequences. Moving forward, our client intake consultations should include gathering vital information about their immigration status, their family’s status, and their nationality. Further, it is imperative to consult with immigration professionals prior to advising a non-U.S.  citizen client of any potential disposition of their criminal case.  While we cannot say exactly how, these changes will certainly affect the practice of criminal law for the foreseeable future.

Notes:

1. United States v. Padilla (559 U.S. 356 (2010)).

2. Executive Order No. 14159, 90 FR 8443 (Jan. 29, 2025)

3. www.whitehouse.gov

4. https://cis.org/Richwine/How-Many-Illegal-Aliens-Reside-Sanctuary-Jurisdictions

For more information, check out this podcast on these issues.