This is a question we often get as criminal defense attorneys. And it can be the most important question in a criminal case. If you are not a United States citizen and you are facing a criminal charge, your immigration status and future in the country could be on the line.
This is why one of the first questions we ask our clients is this: Are you a U.S. citizen? If not, what could otherwise be a simple criminal case with minor penalties may have life-altering consequences for you and your family, including deportation or denial of renewal of your status. Clients often have misconceptions about the importance of considering their immigration status in addressing criminal charges.
Common misconceptions include the following:
What types of offenses could affect my immigration status?
Every case is unique, and that’s why it’s important to raise this issue with your counsel so you understand the potential consequences in your individual case. However, certain categories of offenses under immigration law can trigger negative immigration consequences, including the following:
What should I do if I am not a US citizen and I am charged with a criminal offense?
First, it’s important to retain an experienced criminal defense attorney who is accustomed to representing immigrant clients and is sensitive to the issue of immigration consequences of convictions. The Supreme Court decision of Kentucky v. Padilla, 559 U.S. 356 (2010) held that it is ineffective assistance of counsel for a defense attorney not to advise a client on the immigration consequences of a plea.
Second, before accepting any plea agreement, or deciding whether to go to trial or negotiate a plea, make sure you understand the consequences of the specific charge(s) you face on your status. Discussing this early on with your attorney can facilitate a plea negotiation that is focused on protecting your immigration status.
Can I avoid adverse immigration consequences from my criminal case?
Often, yes. While every case is different, in many cases a plea agreement can be fashioned specifically in a way to protect your immigration status. For example, a plea to an amended charge that does not trigger immigration consequences is often possible. Similarly, a deferred disposition agreement can be crafted in a way that avoids triggering immigration grounds of inadmissibility or removability. Of course, this depends on a number of factors, including the seriousness of the charged offense and any prior criminal history.
This is why it’s critical to understand the exact consequences you face, discuss them with your attorney, and ensure that you know the immigration consequences before you make any case-related decisions.
Are you or a loved one facing a criminal charge in state or federal court? Call us now at 703-884-2636.