For defendants who do not have full citizenship in the country in which they are accused of a crime,immigration law often has an important impact on criminal defense strategy, affecting all aspects of the case including the theory of the case and the defendant's willingness to plead guilty to a crime.
Immigration law is generally governed at the national level with legislation which controls which immigrants may reside in a country legally. Immigration law varies greatly from one country to the other and often depends on the country's willingess and desire to absorb additional immigrants.
Issues of immigration generally arise in developing countries who are absorbing defendants from the developing world. However, it can arise in other contexts as well.
In some countries, a criminal record is a bar to nationalization and may cause the defendant to lose their immigration status. A criminal record may also affect an individual's ability to seek asylum in another country.
Immigration law regarding the citizens of a country is regulated by international law. The United Nations International Covenant on Civil and Political Rights mandates that all countries allow entry to its own citizens.
Country Specific Applications
In 2007 the Census Bureau found that the nation’s immigrant population (legal and illegal) reached a record of 37.9 million in 2007. One out of ever eight U.S. residents is an immigrant. In 1970 there was only one immigrant for every 21 residents. Of these immigrants, almost a third are illegal aliens. Half of these are Mexican and Central American immigrants.
This explosive growth in the U.S. immigrant population has caused additional strain on the US criminal justice system. As this population has grown, the United States has enacted increasingly draconian immigration laws. Increasingly, criminal convictions can be a bar to obtaining US citizenship and in many cases, entering the criminal justice system will trigger deportation proceedings.By 2000, the non-citizens accounted for 29% of the federal prison population.
In recent years this problem has been so great that several laws schools have started "Immigrant Defense Clinics" where students work on defending immigrants accused of crimes where the case triggers either a bar to nationalization or deportation of the individual.
Immigration law is controlled at the national level and there is generally poor communication between Immigration and Naturalization Service(INS) and state-level criminal courts.
- Bureau of Justice Statistics, Immigration Offenders in the Federal Criminal Justice System, 2000 at 8 (2002) (NCJ 191745)