Analysis Human Rights

How the United States Makes Migrants ‘Pay’ for Their Crimes—and Then Moves to Deport Them (Updated)

Tina Vasquez

"The reality is that our criminal justice system, the laws and consequences, are just as broken as the immigration system."

UPDATE, October 18, 9:34 a.m.: Ingrid Encalada Latorre on Tuesday returned to sanctuary in Denver.

Ingrid Encalada Latorre, 34, has spent the better part of seven years paying for a crime she committed, and for the bad legal advice she said an attorney gave her. Since 2010, the mother of two U.S.-citizen children has reportedly spent two-and-a-half-months in jail, four-and-a-half years on probation, and six months in sanctuary, as well as paid back taxes totaling $11,500. Despite all of the efforts she’s made to make amends, she is now facing deportation back to Peru.

The mother of two was “praying for a miracle” in the form of a pardon from Gov. John Hickenlooper (D), but on September 14, just one day before she was supposed to turn herself into Immigration and Customs Enforcement (ICE) or “self-deport,” the Colorado governor said he would not be granting her a pardon. Now, Latorre has just two days to leave the country or re-enter sanctuary. 

Alisa Wellek, the executive director of the Immigrant Defense Project, told Rewire that for undocumented immigrants like Latorre who’ve been in the criminal justice system, the problem is two-fold: Criminal defense attorneys don’t have the resources they need to properly advise undocumented immigrants, and there are a lot of immigration attorneys who will take whatever cases come their way, choosing quantity over providing quality legal counsel.

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“Not to make excuses, but so many immigration attorneys are overwhelmed right now or they simply never gave great advice in the first place and often, the direct result of bad advice is deportation. Once you’re deported, the likelihood of being able to reopen your case and come back [to the United States] is so, so slim,” said Wellek. “The bar is really high and usually, people who had private attorneys have spent every dime they have to try to fight their case in the first place. If they lose, they don’t have the resources and sadly, there isn’t any recourse for them.”

In Latorre’s case, she says that she’s done everything she could to try to make amends for the crime she committed 17 years ago.

“I know what I did had an impact on the person whose documents I used—and I am sorry for that—but the impact to pursue felony charges against people like me who must work to live, but who cannot work otherwise, keeps us from staying with our family in the United States,” Latorre told Rewire in September. “It was very poor legal advice. It impacted my immigration case, my record, and my life forever.”

“I Just Didn’t Know”

Latorre came to the United States in 2000 when she was 17. She began working at a nursing home in Colorado, a job she obtained by using a social security number that belonged to someone else. It is illegal to employ undocumented immigrants in the United States. While many employers have been found to exploit undocumented immigrants for their labor, offering little pay, no benefits, and few protections, undocumented immigrants often use fake or borrowed documents to make a living. In Latorre’s case, she did not know the person whose information she was using and in 2010, she was arrested for felony criminal impersonation.

After her arrest, Latorre found her attorney through word-of-mouth. To the young mother, it was promising that while her attorney practiced criminal law, he had a practice with his wife, an immigration lawyer. Latorre’s attorney advised her to accept a felony plea deal. She specifically remembers asking him if the plea would affect her immigration case, and he said it would not. But Latorre has been paying the price ever since.

After completing everything the court ordered her to do over the past seven years, Latorre fought her immigration case in an appeals court in August 2017, but her appeal was denied because of her felony. While she says her initial attorney did try hard to get the felony lowered to a lesser charge, the court refused, so he advised her to take what was offered. Latorre said that if she could do it all over, knowing what she knows now, she would have pushed for a jury trial that could have resulted in a misdemeanor plea.

“I just didn’t know, I didn’t understand the consequences, and I trusted that my lawyer knew. Had I known he was wrong, I would have been brave enough to ask for a jury trial,” Latorre said. “The reality is that our criminal justice system, the laws and consequences, are just as broken as the immigration system.”

When initially targeted by deportation, Latorre entered sanctuary in Denver in December 2016, where she remained until June. She was able to leave after being given a three-month stay of removal, with the final day of the stay being September 15. The weeks leading up to September 15 were a flurry of activity. Latorre was caring for her children, trying to give them some semblance of normalcy, while also fighting for her life in the United States and remaining in near-constant communication with ICE.

“Three months is actually very short,” Latorre told Rewire through an interpreter, just two days before her stay was set to expire. “I had to go to court, while also trying to prepare my children and family for whatever came next—if I needed to leave the United States, I needed to have their passports. I had to get everything ready to leave what I built here over 17 years.”

As a condition of her stay, Latorre had to consent to an ankle monitor, requiring a weekly visit from officials as well as a weekly drive to check in with officials, which was an hour away from her home.

“A lot of my time during these three months has been taken up by these appointments and having to be home for check-ins,” Latorre said. “I’ve also been trying to get more signatures on my petition and speaking at public events educating my community on how to fight deportation and also educating the [U.S.] citizen community on the challenges we immigrants face.”

In the months since leaving sanctuary, Latorre also attempted to re-open her criminal case based on ineffective advice. The judge decided not to reopen her case, but he did find her claim credible. Jennifer Piper, an interfaith organizer with the American Friends Service Committee who has worked closely with Latorre on her case, told Rewire that back in 2010, few defense attorneys were informing their undocumented clients of the immigration consequences of their cases, so the judge decided that the improper advice Latorre received wasn’t significant enough to lead to a different outcome.

“That’s one judge’s assessment, but he did find her—and her claim—credible. So it was sort of a mixed ruling,” Piper said. “In Ingrid’s case, it’s clear she didn’t receive proper advice. But a lot of the people we see, the advice they receive is a missed opportunity to fully fight their case and remain in the U.S.”

“Since I’ve gone public with my case, it’s something I hear a lot [from people in my community],” Latorre told Rewire. “People now approach me and say they didn’t receive adequate legal advice. I always recommend people get a second opinion. Some immigration attorneys are not giving 100 percent to each case and it has damaging effects,” she added.

These seemingly innocuous mistakes, like not making a person aware of the immigration consequences of court proceedings, are incredibly common, according to Piper. In her time organizing around immigration, she told Rewire, she’s actually seen more people adversely affected by “mediocre legal advice” than “straight up terrible advice.”

“We know this is a problem nationally, but here in Colorado, one attorney will take on eight different clients and won’t handle any of them horribly necessarily, but they’re just sort of phoning it in. When people come to us and we’re able to get them a second opinion from a different attorney, the attorney finds things that could have changed the course of their case—and it kills people,” Piper said. “It’s an erosion of trust and that feeling of being treated like just another number.”

The organizer said the question that gets lobbed the most at people like Latorre is: If the advice you received really was bad, why didn’t you file a complaint?

“People just don’t have the resources or the capacity, when fighting for their lives in the U.S., to take an attorney to court or sue them or file an ethics complaint. Plus, it’s not that black and white. Bad advice we can concretely prove, but mediocre advice that still made a difference on someone’s case is so much harder to prove. Technically, the attorney did their job, but they also missed a lot,” Piper said.

As an example of an attorney “phoning it in,” Piper told Rewire about an instance she encountered in which an immigrant woman, who experienced abuse and trauma in her country of origin and fled for her life to the United States, underwent a psychiatric evaluation during court proceedings by someone who specialized in eating disorders. But she didn’t have an eating disorder, and eating disorders were in no way related to her case.

“They couldn’t find a regular therapist? This is the kind of stuff I’m talking about. Can you re-open a whole case based on something like this? No. But could the outcome have been different if the attorney made the effort to find an appropriate specialist? Maybe. It’s this kind of mediocrity that’s so frustrating, where it’s not enough under the law to reopen the case, but anyone with common sense would recognize how ridiculous that decision was,” Piper said.

Troubling Trends

Latorre being funneled into deportation proceedings as a result of her interaction with the criminal justice system is also common, and there’s a name for it: “crimmigation.” As Rewire reported, the term was coined in 2006 by legal scholar Juliet Stumpf describing the intersection of criminal law and immigration law. The overlapping of these two systems allows the federal government to achieve two goals: detain people who’ve committed or are suspected of committing crimes and reduce the number of unauthorized immigrants in the country.

As CityLab reported in September, some of the first laws that eventually led to crimmigration emerged under the Reagan administration; “subsequent ones were enacted with the blessings of both the Republican and Democratic presidents that followed,” journalist Tanvi Misra wrote. A bulk of crimmigration laws primarily addressed drug crimes and immigration, “leading to more overlap in the roles of law enforcement and immigration officers and greater coordination between them,” Misra reported. Around the same time, the category of criminal activity called “aggravated felony” was dramatically broadened, hitting Black communities especially hard. For non-citizens arrested for these crimes, deportation was immediately triggered. These laws also authorized pre-trial, mandatory detention, and they reimbursed local and county governments for imprisoning immigrants, according to CityLab.

The Promise of Sanctuary Cities, a report released in May, outlines how Trump is only ramping up crimmigration that was in place from Obama’s administration, relying on local criminal justice systems to deport as many people as possible.

Wellek told Rewire that when it comes to crimmigation, she’s seeing some troubling trends emerge from the Trump administration.

“There are two things we’re seeing that are somewhat new. The first is this real push to criminalize what were otherwise considered immigration offenses, like using false documents to work. Under Jeff Sessions, we’re likely to see more prosecutions for immigration-related offenses, like illegal entry and re-entry. There was somewhat of an uptick under Obama, but it will explode under Trumpand they’ve promised that,” Wellek said. “Secondly, people who are driving without licenses, using false documentation, those are things that people do to work and they can result in felony charges, but now they will be much harsher in the consequences. Not only will people see more criminal prosecutions, but more immediate deportation consequences.”

All of this is possible because Trump inherited former President Obama’s “robust enforcement machine,” according to Wellek. But there were limits in place as to how it should be used, and the Trump administration is doing away with those limitations so that everyone is deportable, and particularly those who’ve had any contact whatsoever with the criminal justice system, even for non-violent crimes. 

Thus far, the Trump administration has seemingly made it its duty to attack immigrant communities, but in these attacks, repercussions are spiraling out in unexpected ways. Wellek said that there is so much fear in immigrant communities because of Trump, that attorneys are essentially “stabbing in the dark,” helping people apply for things they often are not eligible for, like asylum.

“By doing this, attorneys are essentially putting people on immigration’s radar and they get put in deportation proceedings because they applied for something they weren’t eligible for,” Wellek said. “We’ve seen instances of attorneys putting in an asylum claim for someone who had no valid claim for asylum, but they were eligible … for something else. All of a sudden, this person is detained and they wouldn’t have otherwise been targeted by immigration. There is tons of fraudulent advice out there and sadly, it’s another hurdle immigrants face.”

Padilla v. Kentucky

When speaking to Rewire in May regarding the Promise of Sanctuary Cities report he co-authored, Michael Admirand, senior legal counsel at Harvard Law School’s Fair Punishment Project, said that under the current administration’s watch, just about any policy that doesn’t directly mirror or echo the Trump administration’s priorities will be considered “sanctuary.” While this may seem like a challenge, he said, it actually provides local officials with the opportunity to define sanctuary for themselves and to put into place reforms with tangible results, reforms that protect non-citizens and citizens alike, making their communities “fair and equitable places.”

Admirand’s report outlined a number of reforms jurisdictions can put into place if they are truly invested in protecting undocumented residents, and many of these reforms are focused on the criminal justice system, starting with the Sixth Amendment.

The Sixth Amendment requires defense counsel to advise non-citizen defendants of the immigration consequences of a potential conviction, according to the report. This understanding only came as a result of the Supreme Court case Padilla v. Kentucky, in which José Padilla, a lawful permanent resident for more than 40 years, faced deportation after pleading guilty to drug distribution charges in the state of Kentucky. Padilla’s counsel not only failed to advise him of the immigration consequences of his plea, but assured him he wouldn’t be deported because he had resided in the United States for so long.

Wellek said that organizations like hers have spent years working with the defender community to develop criminal defense norms around providing fair and accurate advice about immigration consequences for non-citizens, especially after incredibly harsh immigration laws went into effect in 1996. She said that prior to 2010, when Padilla v. Kentucky was decided, it wasn’t clear that making non-citizens aware of the immigration consequences of their court proceedings was “an affirmative duty” defense counsel had. While a great deal of work has been done to give defense attorneys access to immigration experts, or at the very least, make them aware of their obligations to undocumented immigrants, problems persist.

“The response is often blanketed advisals, like, ‘This may cause immigration consequences,’ without any sort of investigation into the specific nature of the consequences,” Wellek said. “Attorneys think these blanketed advisals meant they did their job of putting immigrants on notice, but we want it to be made very clear that the consequences are very serious. People may face mandatory detention. It can trigger their deportation. A consequence can be never being eligible to get a green card. What the Supreme Court recognized is that people might be sent back to countries where their lives are at stake, so they would be willing to do anything to fight their criminal cases if they were aware of the consequences. Everyone is entitled to that right.”

In 2010 when Latorre’s attorney told her accepting the felony plea deal wouldn’t have immigration consequences, advocates say he not only failed to properly do his job, but he arguably denied Latorre her Sixth Amendment rights. With situations like Latorre’s, assuming good faith, it’s usually not an intentional failing on behalf of the defense attorney. A large part of the problem is how few resources defense attorneys have, which is why Admirand’s report recommended that local governments “adequately resource” public defender offices. 

In Wellek’s daily work, she encounters firsthand how resources are lacking for defender offices nationwide. Some states, like New York, are paving the way by funding regional immigration assistance centers that advise criminal defense lawyers and family lawyers across the state, which the executive director called the next best thing.

Another reform suggested by Admirand’s report pushes jurisdictions to consider immigration consequences for a person at every stage of the criminal process, starting with the initial charging decision and lasting throughout plea negotiations. The report cites this reform as having “the most power over how successful a city is at providing sanctuary,” and it’s an approach that could have changed Latorre’s life. 

As her allotted 30 days to remain in the United States winds down, Latorre—for safety reasons—refrained to say whether she would leave the country or re-enter sanctuary, but she did reflect on the six months she spent in sanctuary earlier this year. She told Rewire there were both beautiful moments and incredibly difficult moments, as captured by the New York Times in June. The faith community that rallied around her made her feel protected, safe, and supported, and provided her with the space she needed to keep fighting her case.

The mother of two U.S.-citizen children said that living under these conditions has been difficult for her family, especially with the fear that ICE can take her at any time. The federal immigration agency can track Latorre’s movements because of her ankle monitor.

“I know I made a mistake, but this mistake I made was really one of survival. There was no other option for me to sustain myself and my livelihood in the U.S.,” Latorre said. “I do feel deep sympathy and compassion, and I’m very sorry for the impact I had on the person whose documents I used, but at the same time, this is what the immigration system forces us to do. I came to the U.S. and there was no pathway for me, but I was able to build a life here. I’m a mother, and like any mother, my children are everything to me and I will fight for them every day. I will fight to keep us together and ensure their future here in the U.S.”

CORRECTION: The date Padilla v. Kentucky was decided has been corrected.

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