Criminal Defense of Immigrants

 

(A)  Before Conviction.  Tell your criminal lawyer that you are not a United States citizen.  Tell the lawyer you want to avoid deportation (and any other pertinent form of immigration damage) and explain why this is important to you.  Instruct the lawyer to try to identify a safe haven for you to plead guilty to that will not cause you to be deported.  There are a lot of other damaging immigration consequences — aside from deportation — that a conviction can cause, and some that can be triggered even if you do not suffer a conviction at all, because they are triggered by conduct, rather than a conviction.  Full discussions of these non-deportation forms of immigration damage are beyond the scope of this book.  You really need to talk to an immigration lawyer experienced in handling criminal immigration issues.  Don’t take a chance.  Spend the money; get a good immigration lawyer, and make sure your criminal defense lawyer consults with the immigration lawyer and informs you exactly of all the adverse immigration consequences of a given disposition before you enter into a plea bargain.

 

                Criminal convictions can result in two kinds of consequences:

 

                1.             Punishment such as jail or prison time, and

                2.             Deportation and other harsh immigration consequences.

 

                If you are a citizen of the United States, you only need to worry about the punishment.  The government cannot deport you or take any other action against you, so long as you did not lie in a naturalization application or interview.  If you did, it is possible the government may try to take your U.S. citizenship away.  If it succeeds, then you can be deported or excluded from the United States like anyone else who is not a citizen of the United States.  See § 3.20, infra. 

 

                If you are not a citizen of the United States, by birth or naturalization, a criminal conviction can force the Department of Homeland Security to take various damaging actions against you even after the criminal case is over and you have already served your time.

 

               

IF YOU ARE NOT A CITIZEN

 

If you have been accused of a crime it is very important that you speak to a public defender or a lawyer to protect your legal rights. 

Do not plead guilty without understanding the exact adverse immigration consequences the plea will have for you.  For the immigrant, a criminal conviction could result in permanent deportation.

 

                If you were under the age of 18 years old when your case was handled in Juvenile Court, it did not result in a conviction for immigration purposes, and will not cause deportation under any conviction-based ground of deportation.  See § § 12.20, et.seq., infra.

 

                If your case is handled in adult court, the immigration consequences depend on your immigration status.  They are different for permanent residents, temporary residents, persons in the United States without documentation, persons who have been here different lengths of time, etc.  This is why it is very important for your lawyer to check with an immigration expert before entering any guilty plea or no contest plea.

 

                In many cases, the immigration consequences can be far worse than the criminal consequences (such as the amount of jail time) you may face if you plead guilty.

 

                The following suggestions cover how you should approach plea bargaining:

 

                (1) Criminal Charges Can Cause Your Deportation

 

1.     Make sure your lawyer investigates the exact immigration consequences of any plea-bargain you are considering, and get a written statement of what those consequences are so you can talk to your family about them and perhaps seek a second opinion from an immigration lawyer.

 

2.       Realize that you may have to sacrifice one goal (do less jail time) in order to achieve another goal (avoid deportation).  For example, if the prosecutor wants you to do two months in jail, your lawyer may persuade the prosecutor to change the charge to a non-deportable charge if you offer to do four months in jail instead of two.

 

3.       Tell your lawyer how important it is to you to avoid deportation, as compared to how important it is to you to minimize the jail time.  For example, you can offer to do more time in custody in return for an agreement by the prosecutor to change the charge to which you plead guilty to a new charge which will not cause your deportation.

 

4.       DO NOT TALK to police, the DA, or the DHS.  Talk only to your lawyer or public defender.

 

(2)  Examples of Ways Your Lawyer Can Try To Avoid Negative Immigration Consequences

 

                1.             Get the charge dismissed.  See § 7.29, infra.

                2.             Obtain an acquittal after a jury or court trial.  See § 7.28, infra.

3.             Obtain pre-plea diversion (a program in which you are placed on probation and then later have the charges dropped without ever entering a guilty or no contest plea).  See § 7.30, infra.

4.             Change the charge to a non-deportable charge before a plea is entered.

                5.             Reduce a felony to a misdemeanor.  See § 7.46, infra. 

6.                   Reduce jail time below certain amount.  See § 7.45, infra.