If a Misdemeanor Could Lead to Removal of a Non-Citizen, the Charge *Might Be* Jury-Demandable In DC

Recent changes in how courts view the consequences of criminal convictions for non-citizens make it imperative that criminal defense counsel not only counsel clients on the potential immigration consequences of pleading guilty, but also demand a jury trial if a conviction could lead to removal for the client.

In DC, there’s generally no right to a jury trial for any offense that carries a maximum penalty less than 6-months.  Most misdemeanors in the District of Columbia are punishable by no more than 180 days jail time, and are therefore tried in front of a judge rather than by a jury. In March, however, the DC Court of Appeals (“DCCA”) recognized that the Supreme Court’s decision in Padilla v. Kentucky in 2010 may have changed the calculus for non-citizens. In Fretes-Zarata v. United States, 40 A. 3d 374 (D.C. 2012), the DCCA cited the Supreme Court’s discussion of the “changes to our immigration law that have dramatically raised the stakes of a noncitizen’s criminal conviction.” There are some misdemeanors that could lead to removal for non-citizens who are found guilty, such as certain drug charges or domestic violence convictions. These consequences for non-citizens may turn a “petty” misdemeanor into a “serious crime” with a right to demand a trial by jury.

While the DCCA did not hold that misdemeanors that could lead to removal or have other immigration consequences definitely are jury-demandable, the DCCA did recognize the severity of immigration consequences in light of the Supreme Court’s decision in Padilla:

Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it `most difficult’ to divorce the penalty from the conviction in the deportation context….

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence.

The DC Court of Appeals did hold that a trial court’s failure to grant a jury trial to a non-citizen who would face removal is not “clear error,” requiring reversal even if the trial lawyer did not demand a jury trial, the court may reach a different decision if the trial lawyer did demand a jury. Therefore, it is EXTREMELY IMPORTANT that trial counsel request a jury trial for non-citizens charged with misdemeanors that could lead to removal. Indeed, in light of this decision, it may be ineffective assistance of counsel to fail to ask for a jury for non-citizens who could face removal or deportation.

Edit:  I would like to clarify that there are certainly strategic reasons not to ask for a jury trial on these grounds. First of all, the government may not be aware of your client’s immigration status (and this is a client confidence – which should not be disclosed without the client’s permission after full discussion) – if the client is convicted, having asked for a jury trial may have alerted the prosecutor to contact ICE. Also, there may be other reasons to chose a bench trial over a jury trial, depending on the judge. As always, it depends.

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