These days, the relationship between crime and immigration is widely discussed, but perhaps often misunderstood. Fears for public safety are sometimes invoked as a rationale to keep immigrants out - as well as a basis to deport noncitizens living in the country.

However, recent studies do not support the concept that immigration causes higher crime rates. For example, a 2018 Cato Institute study found that in 2015 in Texas - one of three states with the largest immigrant populations (California and New York being the others) - there were 50 percent fewer criminal convictions for illegal immigrants than for native-born Americans.1 Further, the criminal conviction rate for legal immigrants was about 66 percent below the native-born rate.

A national study published last year in the journal Criminology2 found that, nationwide, locations with higher percentages of undocumented immigrants did not have higher rates of crime. Indeed, states with larger shares of undocumented immigrants tended to have lower rates of violent crime than states with smaller shares, in the years 1990 through 2014. After controlling for various economic and demographic factors, the relationship between high levels of illegal immigrants and low levels of crime persisted.

Deportation of Noncitizens

The connection between crime and immigration is relevant not only to whether immigrants can enter the country, but also to whether they can remain or are forcibly removed. In recent times, the threat of deportation has significantly increased, as federal authorities have aggressively enforced existing laws to remove noncitizens - including persons with long ties to the United States, families here, and gainful employment - based on convictions of even minor offenses, such as marijuana possession.3

A legal foundation for potentially harsh actions against immigrants who commit crimes was laid a century ago. In 1917, Congress made classes of noncitizens deportable based on conduct committed on American soil.4 However, there were no automatically deportable offenses. Even as such offenses expanded, judges retained broad discretion to ameliorate unjust results on a case-by-case basis.

That changed in 1996, by virtue of amendments to the Immigration and Nationality Act. Under contemporary law, discretionary relief from deportation has been virtually eliminated. Thus, deportation is practically inevitable for a noncitizen who commits a removable offense . These changes greatly raised the stakes of a noncitizen's criminal conviction. Deportation has become an integral part of the penalty that may be imposed on noncitizen defendants convicted of specified crimes.5

In recognition of these changes, the U.S. Supreme Court provided greater protections to noncitizen criminal defendants. The Court noted that  counsel who understands the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor to craft a conviction and sentence that reduce the likelihood of deportation.6 Observing that no criminal defendant, whether a citizen or not, should be left to the mercies of incompetent counsel, the Padilla court held that counsel must inform the client whether his or her plea carries a risk of deportation. Counsel's failure to perform such duty will be deemed ineffective assistance of counsel, requiring reversal if the defendant establishes prejudice.7

In light of the complexity of immigration law, several years after Padilla v. Kentucky was decided, New York State-funded Regional Immigration Assistance Centers (RIACs) were established throughout the state to help the defender community better understand the immigration consequences of criminal convictions and render effective legal assistance to noncitizen clients.8

Legal Protections in New York

New York courts have erected protections to noncitizen criminal defendants, based on recognition of the profound consequences of deportation as a penalty for many crimes.9 As our state's high court has observed, once a defendant is identified as a potentially removable alien, he or she may be detained, potentially for years.10 The conditions of that detention are often dire; criminal inmates may fare better than civil detainees.

Yet it is actual removal from the country that exacts the greatest toll. The defendant rarely has further in-person contact with family members remaining in America. Deportation strips the defendant of the job held in this country, thus depriving the defendant and family of critical financial support. T he defendant is banished to a country that is often more foreign to him or her than this country, where he or she may have lived since early childhood.11

In light of such realities, the People v. Peque  court held that deportation is a plea consequence of such "tremendous importance, grave impact and frequent occurrence" that due process compels a trial court to apprise a defendant that, if he or she is not an American citizen, deportation may result from a guilty plea to a felony.12  Reversal is not automatic; the defendant must show a reasonable probability that, if properly advised, he or she would not have pleaded guilty.

Recently, in another important immigration decision, the Court of Appeals held that a noncitizen defendant who demonstrates that the charged crime carries the potential penalty of deportation is entitled to a jury trial.13 The court reasoned that the constitutional right to a jury trial extends to serious offenses; seriousness can be measured by the severity of the maximum penalty; and penalties encompass not only prison time, but also deportation. Deportation is a penalty of such severity that it rebutted the presumption that that defendant's crimes - class B misdemeanors arising from a domestic violence incident - were petty for Sixth Amendment purposes.14

In sum, federal laws, policies, and authorities control the entry of immigrants, as well as the deportation of noncitizens convicted of crimes. However, given the draconian consequences of permanent exile from this country, critical legal protections have been provided by New York courts to noncitizen defendants whose crimes were alleged to have occurred here.

  • Alex Nowrasteh, Criminal Immigrants in Texas, Cato Institute, (Feb. 2018, updated Aug. 2018).
  • Michael T. Light and Ty Miller, Does Undocumented Immigration Increase Violent Crime?, 56 Criminology 370–401 (Mar. 2018), at
  • Governor Cuomo recently issued pardons to numerous individuals who – despite leading crime-free lives and contributing to their communities – faced deportation due to decades-old New York convictions for low-level, non-violent offenses,
  • Padilla v. Kentucky, 559 U.S, 356, 361 (2010), citing the Immigration Law of 1917.
  • Id. at 363–64.
  • Id. at 373.
  • Id. at 374.
  • Long before Padilla, New York held that an affirmative misrepresentation about deportation consequences of a guilty plea may constitute ineffective assistance of counsel. See People v. McDonald, 1 N.Y.3d 109 (2003).
  • People v. Peque, 22 N.Y.3d 169, 188–89 (2013), cert denied sub nom. Thomas v. New York, 574 U.S.__ (2014).
  • People v. Peque, supra note 10, at 189.
  • Id. at 176.
  • People v. Suazo, ___ N.Y.3d ___ (Nov. 27, 2018) (WL 6173962).
  • CPL § 340.40 permitted bench trials for criminal defendants in New York City facing such charges since amendments to the statute in 1984 – at a time when, unlike now, criminal convictions triggered deportations in a very limited set of circumstances.