IMMIGRANTS in America are particularly vulnerable right now. Non-citizens accused of crimes, whether convicted or not, are ripe for deportation thanks to US Immigration and Customs Enforcement (ICE) agents who have been plucking people from the courthouse.
John Schlosser is a Portland public defender who represents several hundred Spanish-speaking clients charged with misdemeanors in state court each year. Many of those assigned to him are immigrants, who become targets for deportation just for showing up in court. Their chances of remaining in the country plummet if they’re convicted of a crime.
Schlosser says there’s a better way. He’s pushing for legislation that would require the state to pay for consultations with immigration attorneys for non-citizens who are charged with crimes. The immigration attorneys would then write letters letting prosecutors know what would happen on a federal immigration level if the defendants were convicted of the crime. The goal, he says, is to limit the “collateral damage” from low-level convictions.
We spoke with Schlosser—on the same day he says one of his asylum-seeking clients was picked up by ICE at the Multnomah County courthouse—about his advocacy for non-citizens arrested in Oregon.
MERCURY: Why is it important to advocate for the immigration rights of non-citizens facing criminal charges?
SCHLOSSER: Personally, 90 to 95 percent of my clients for the last four years have been immigrants. They’re either now a citizen or not, but most of them are immigrants at some point in their life and they’re all Spanish speakers. I didn’t have a lot of personal interaction with people from that community until I started this job, but overwhelmingly my clients are kind, decent people. Many of them made mistakes, and many were accused of a mistake they didn’t do, but they’re all very polite and contrite. For the most part, they accept when they did something wrong and want to do something about it, and that’s the kind of attitude that helps make a community great. Many of them now live in fear—not that they weren’t before, but it’s worse now. They’re great people, generally. Many of them made mistakes. I handle mostly misdemeanors, but I see their families torn apart on a daily basis. That’s why it’s important to me: I’m seeing these people and their lives torn apart.
Why should prosecutors consider a defendant’s immigration status?
Many charges that the public, the court, and the state legislature consider minor offenses are given serious consequences on an immigration level. A petty theft—somebody shoplifting to feed their family, even—can be considered a “crime of moral turpitude,” which gets you deported. Pleading to it is going to get that person deported and this is the day-to-day balance that I deal with. The person isn’t a serious threat to society or community, but the ultimate result of this conviction is going to be so much harsher than a citizen who gets the same treatment.
Your proposed legislation would go beyond the “Padilla Project” from the Metropolitan Public Defenders (which Schlosser doesn’t work for). What is the Padilla Project?
The Padilla vs. Kentucky Supreme Court case came out in 2010 and it obligates defense attorneys to make sure their clients are adequately advised of potential immigration consequences. The Padilla Project at MPD came out as a result of that. So there is some ability for non-citizen defendants to get immigration information, but it’s limited in what it can do. It’s sterilized information that’s provided to the Padilla Project through their attorney, as opposed to a consultation between an immigration attorney and a defendant—currently there’s not a complete sharing of all the facts and information that might be beneficial in that kind of consultation. The Padilla Project looks at what’s there and then makes suggestions, based on what they know about the case, in plea negotiations and potential charges that may make them deportable or help them preserve their immigration arguments in immigration.
Let’s go over the immigration consultation legislation you want the state to pass.
This is something that’s been in my head for years because of who I’m representing. I work almost on a daily basis with immigration attorneys and I see how complex it is, how nuanced it is, and how really little details—most law comes down to little details—but it’s really little details that can make a huge difference on whether or not a person gets deported or not. Ideally for a client, after figuring out if they’re not a citizen, they’d immediately get referred to an immigration attorney who would do a thorough consultation with them, an intake questionnaire, and the immigration attorney would draft an opinion letter that the defense attorney can take to the district attorney. The immigration lawyer would work with the defense attorney to figure out what charges [the defendant] is facing, what are the facts of the case, and, based on what the facts are, if there are other potential charges they could plea to in the negotiation process. They’d provide that info to the district attorneys office and try to work out a plea.
So the goal is to paint a more sympathetic picture to prosecutors?
A more accurate picture. In Multnomah County, most of the DAs are sympathetic if your client has a potential immigration issue. But they need more to hang their hat on, so to speak, in trying to negotiate something. They need something more specific.
What are the roadblocks to getting this through?
Money. That’s a valid issue with the state budget being what it is and public defense services being underfunded. The counties fund their own prosecutor’s offices—each county doles out their money and they get increases regularly. But the state has to fund the entire state’s public defense, and it’s not a sexy topic for many people. There’s already a huge gap between what’s provided to public defense services versus the resources the individual district attorney’s offices have. It looks like the budget coming up, if it gets passed, might not even reach what’s predicted to be needed [for defense services]. That’s without providing these people a network of immigration attorneys to handle these scenarios. The bill that’s being proposed, the goal is to get these people independent consultations outside of the Padilla Project. Some of the money that goes to the Padilla Project could go to pay for this, so some of the money is already there.
What do you tell people who don’t believe immigrants should get any more state resources?
There’s only really a certain subset of those people I can address—some of them are going to say, “Well, deport their families too.” Some people, it just doesn’t matter, and I can’t address those people. But for the people more in the middle ground, the ultimate effect here is the destruction of a family. That’s a collateral consequence of a potential criminal charge. Padilla vs. Kentucky says that district attorneys can—and should in my opinion, but can—consider immigration consequences when making decisions. In doing that, they look at what the disparate impact is for a citizen getting a conviction for X versus a non-citizen getting a conviction for X—taking into account that this person can get deported, and what that’s going to do to not just him but his family, they can use that as a factor in balancing out the negotiations. That’s the ultimate goal.
How has your job as a state public defender for mostly immigrant clients changed since Trump was sworn in?
I have for a very long time, on an individual basis, done many know-your-rights training sessions. It would vary from client-to-client depending on their particular needs based on what they’re seeing me for. It could be a 15-minute conversation or it could be an hour. And as a defense attorney, you have the usual consultation about just the criminal case itself. I have that plus the immigration impact. My consultations tend to take a fair bit longer than the average public defender, and that has probably doubled now on every case. Because of the Trump administration’s policies, if you are not a citizen, and you are charged with a crime, you can be detained [by ICE]. That’s nearly every one of my clients, they’re all charged with a crime and are at risk for being detained. An asylum holder gets detained? Somebody with [Deferred Action for Childhood Arrivals] gets detained? It’s just a charge, no conviction. And certain convictions wouldn’t result in them getting deported. So I have to give know-your-rights on immigration and teach them how to prepare for immigration knocking on your door, or coming to your workplace: what you say, what you don’t say, how you create a plan with your family in case you are picked up. What do you do? Who do you call? Have you already met with an immigration attorney? You need to give your family my contact information so they can contact me if I can’t find you. It’s very difficult to find people when they make it up to Tacoma, the detention center.
The list goes on and on and on with what I have to go through For me, it falls within my Padilla obligations because it’s a collateral consequence from this case. The list goes on and on and on with what I have to go through. You’ve been charged, and immigration law is what it is. You can be picked up. And some of it is case-related, practical information about getting your information to me so I know you’re detained, because if I know it, I can let the district attorney’s office know, and if you’re released later, we have to clear your warrant [for failure to appear in state court]. It’s going to be a lot easier if I’ve already told the DA that you were detained by ICE. I consider it all within the scope of what I am required to do.
You have to take each client individually and all of my clients have these collateral consequences. It’s just broader now. Under the Obama administration, there were priorities on who they were going to pick up, and that affected what I had to explain to each person. But it’s the Wild West out there right now at the Multnomah County courthouse. You have to tell everybody they’re at risk. It doesn’t matter if you have status anymore. You can get picked up, too.