Among the many changes President-elect Donald Trump has vowed to bring to the Oval Office when he begins his second term on Jan. 20 is a continuation of the hardline immigration policies he implemented during his first term.
Those policies could have a dramatic impact on the Houston region, where nearly 30 percent of the population is foreign-born. Yet even though it is the federal government that adjudicates and enforces immigration law, local law enforcement agencies will also play a role.
Arrests and convictions for even minor state crimes can trigger a wide range of immigration consequences, including deportation, making the Harris County District Attorney’s Office a key player for noncitizens as federal policy evolves under Trump.
“In the (district attorney’s) offices, when they truly understand immigration, they can make a really big impact on people’s lives,” said Ruby Powers, a Houston-based immigration lawyer.
Harris County District Attorney Sean Teare, a first-term Democrat who took office on Jan. 1, declined to be interviewed for this story.
Here’s what you should know about how local prosecutors impact federal immigration enforcement — and what to keep in mind if you or your loved one are a noncitizen charged with a crime.
What impact can local prosecutors have on a noncitizen’s immigration status or case?
Local prosecutors, including Teare and the assistant district attorneys who staff his office, represent the state in criminal cases and handle only state offenses. Because immigration crime is a federal offense, it is adjudicated by federal prosecutors and law enforcement agencies like U.S. Immigration and Customs Enforcement, also known as ICE.
However, even a minor criminal conviction at the state level can have severe consequences for a noncitizen’s immigration status or case.
“The consequences of a criminal conviction, and sometimes even charges, can be devastating to an immigrant,” said Lena Graber, a senior staff attorney at the Immigrant Legal Resource Center. “It depends on the precise statute that (the noncitizen) is convicted of and their exact immigration history, but someone who has been a legal permanent resident in Texas for 50 years and is convicted of possession of marijuana can lose their green card and be deported.”
Sometimes, even less punitive resolutions to a case can trigger outsized immigration consequences, immigration lawyers and advocates said. For example, diversion programs, in which defendants participate in alternative programming in exchange for the dismissal of their charges, often require participants to admit guilt or to a certain series of facts. That can be disastrous for noncitizens, experts said.
“Admitting the elements of a crime is a conviction for immigration purposes, even though that’s not the definition for state criminal purposes,” said Powers. “Then, depending on what the ICE policies are, (the conviction) could lead to an ICE hold.”
Are prosecutors required to consider the immigration consequences of a conviction?
Though defense lawyers are constitutionally required to advise their clients on the immigration consequences of their case, prosecutors have no such obligation. Some states, like California, have passed laws compelling state prosecutors to factor immigration consequences into their decision-making. Others, like Texas, have not.
“At a constitutional level, the prosecutor’s role is to seek justice, not just maximum punitive consequences,” Graber said. “The (U.S.) Supreme Court has said deportation is a consequence and a penalty of a criminal case, and that’s why it is imperative that defense counsel take it into account. That imparts onto prosecutors as well, but there’s less precise case law on it.”
Whether a Harris County prosecutor will consider immigration consequences has historically been inconsistent, said Joe Vinas, a defense lawyer and president of the Harris County Criminal Lawyers Association.
“The attitude is typically (like), ‘This is what I would give to somebody who’s a citizen. I don’t see a reason to give your client a break because they’re not a citizen,’” Vinas said.
Some district attorneys have taken steps to educate their prosecutors on the immigration consequences of criminal convictions and mitigate disproportionate outcomes for noncitizens. For example, the Brooklyn District Attorney’s Office hired two immigration lawyers in 2017 to train and advise prosecutors “in an effort to avoid disproportionate collateral consequences, such as deportation, while maintaining public safety” in cases involving noncitizen defendants, according to an office press release.
Asked whether any such policies are or will be in place in Harris County, the district attorney’s office declined to comment.
Such a directive could meaningfully impact the course of immigration enforcement for Harris County residents who have been charged with a state crime.
“If the district attorney is willing to negotiate to something that doesn’t carry such totally disastrous immigration consequences, that has an enormous effect on that person’s life,” Graber said.
What should noncitizens do if they are charged with a crime in Harris County?
Houston Landing consulted with defense lawyers, immigration lawyers and other immigration experts on what noncitizens should know if they are charged with a state crime.
Among their recommendations: know your rights. The American Civil Liberties Union has released a guide to immigrants’ rights in English, Spanish and numerous other languages available for free online.
These rights include the right to remain silent and the right to a defense lawyer, said Amy Mena, director of the Immigration Section at the Harris County Public Defender’s Office.
“ICE has space in the Joint Processing Center,” Mena said, referring to the location where Harris County’s criminal defendants are processed into the criminal legal system and jail. “Anything involving an arrest — you need to remain silent.”
Mena leads a small team of lawyers and paralegals who specialize in counseling Harris County’s public defenders and court-appointed lawyers on the immigration consequences of a charge, conviction or guilty plea. She and other experts urged noncitizens to notify their defense lawyer immediately about their immigration status and any ICE hold. At times, they said, Mena’s team is able to help lift those holds.
“Whoever their defense counsel is, they need to ask that person, ‘I am not a citizen — I need special advice about how this criminal case affects my immigration case,’” Graber said.
Above all, experts urged noncitizens to be aware that a conviction, and even an admission of guilt, can trigger immigration consequences.
“Immigration’s very complex, as we’ve seen over the last four years,” said Vinas, of the Harris County Criminal Lawyers Association. “People just need to know that there are very real and sometimes pretty guaranteed consequences of pleading guilty to certain offenses that they may not even think about.”
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