Illegal Entry as Crime, Deportation as Punishment: Immigration Status and the Criminal Process


In Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment required counsel to advise clients pleading guilty that conviction might result in deportation. The Court rested its decision on the idea that this information was important to the client’s decisionmaking process. However, the Court did not explore a stronger reason for developing a more precise understanding of a client’s immigration status: namely, the effect of that status on ordinary criminal prosecutions, such as burglary or assault. This Article proposes that under current law, immigration status can have substantial effects on the criminal prosecution and sentencing of noncitizens for ordinary nonimmigration crimes.

This Article examines the position of noncitizens in the United States. For some noncitizens, particularly those without legal status, courts treat unlawful entry or removability as a quasi-crime, negatively affecting the case in ways similar to the effect of a prior criminal conviction. For other noncitizens, particularly but not exclusively those with legal status, the possibility of deportation is treated as a quasi-punishment, which sometimes mitigates other punishments or affects charging decisions if deportation or the overall package of sanctions would be too harsh. This Article proposes that it is consistent both with fairness to all individuals in the United States and with widely accepted principles of criminal justice to consider—carefully—immigration status in the criminal process.

About the Author

Professor of Law, University of California, Davis, School of Law.

By uclalaw