Will My Criminal Case Affect My Immigration Status?

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. 
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Common misconceptions include the following:

• I’m a lawful permanent resident (green card holder), so I don’t have to worry about my immigration status.  Unfortunately, this is not correct.  For example, a lawful permanent resident may still be deportable if convicted of an “aggravated felony” or multiple crimes involving moral turpitude.

 

• I was offered a deferred disposition with dismissal, so I don’t need to worry about immigration consequences.  Again, unfortunately this is not true. A deferred finding that is not carefully crafted to avoid the immigration definition of a “conviction” may still be classified as a “conviction” for immigration purposes, even if it’s dismissed in court.  However, there are ways to avoid this by entering what is referred to as a “Crespo Plea” as part of the deferral agreement.  

 

• I’ve been living in the U.S. nearly my whole life, so I can’t be deported.  Also not true. Even lawful permanent residents who have lived in the US nearly their whole lives may be deportable if they meet the immigration standards for removal.

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:

• Aggravated felonies: Under 8 U.S.C. § 1227(a)(2)(A)(iii), a non-citizen who commits an “aggravated felony” is deportable. Examples of this include violent felonies like murder, rape, or sexual abuse of a minor, drug trafficking, trafficking in firearms, theft offenses or burglary offenses with a term of imprisonment at least one year, certain fraud offenses, and certain obstruction of justice offenses. 

 

• Crimes involving moral turpitude: A crime of moral turpitude is one that involves (1) reprehensible conduct, and (2) a mental state of mind or mens rea higher than negligence.  Examples include fraud offenses, theft and larceny, offenses with intent to inflict serious bodily harm, and offenses of “morally offensive” character, like incest and prostitution.      

 

• Controlled substance offenses: Controlled substance convictions like possession of a Schedule I/II drug also trigger serious immigration consequences, including the possibility of deportation.

 

• Domestic Violence: Under federal law, any non-citizen who is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. 

 
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. 

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