Immigration Consequences of Criminal Convictions: A Guide for Criminal Defense Counsel and Criminal Defendants

It is not rare for an immigrant with a green card or someone with a visa to be charged with a crime.  These crimes, be they misdemeanor or felony, can have harsh immigration consequences for the defendant.  Criminal attorneys and criminal defendants should understand the immigration consequences for noncitizens before going to trial or accepting a plead deal.  The penalties for a criminal charged immigrant or nonimmigrant visa holder are complex and consultation with an immigration attorney may be necessary.

Approximately one in six California criminal defendants is a noncitizen.  If you are a noncitizen and charged with a crime, you should always consider not only the criminal consequences involved, but also the immigration consequences.  Any noncitizen, including a lawful permanent resident (“green card” holder) is vulnerable to “removal” (deportation), if he or she is convicted of the wrong offense.

If there is a conviction for some crimes, the immigration system works to force the person to accept removal.  If an immigrant or visa holder attempts to contest being removed based on a conviction, they may be detained for the duration of the removal proceedings. This could take from several months to a few years, depending upon appeals.  In addition, cases involving noncitizens who are not lawful permanent residents will be placed in removal proceedings which have very little due process.  Furthermore, there is no court-appointed counsel to assist the immigrant in these proceedings.  The vast majority of noncitizens in removal proceedings are unrepresented with no advice or support.  Any noncitizen should have a name of an immigration attorney ready in case they are ever charged with a crime or approached by Immigration Enforcement.

Criminal Offenses Under the Immigration Code

The Immigration and Nationality Act (INA) contains three main categories of offenses that damage immigration status or potential status.  These are deportable offenses, offenses which make a noncitizen inadmissible, and aggravated felonies.  There is a long list of crimes which fall within these three categories and any noncitizen charged with any crime should consult an immigration attorney.

A quick reference chart for determining immigration consequences of various California offenses can be found at

http://www.nationalimmigrationproject.org/legalresources/cd_so_Chart%20-%20California%20Offenses%20-%202010.pdf

Criminal Defense Counsel’s Duties in Representing an Immigrant Defendant

On March 31, 2010 the Supreme Court issued a momentous decision regarding immigrants’ rights to counsel in Padilla v. Kentucky.  The Court held that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.  The standards put forth by the court provide that competent defense counsel must take immigration consequences into account at all stages of the legal process.

Some duties of defense counsel include:

• Duty to inquire about citizenship / immigration status at the initial interview stage.
• Duty to investigate and advise about immigration consequences of plea alternatives.
• Duty to investigate and advise about immigration consequences of sentencing alternatives.

The Supreme Court in Padilla urged criminal defense attorneys to be “active, rather than passive, taking the initiative to learn about rules in this area rather than waiting for questions from the defendant.”  It is of utmost importance when defending any client, you are aware of any possible immigration consequences that may arise.  There are several resources available online to help.  Such links include www.ilrc.org/criminal.php and www.defendingimmigrants.org.  No matter what resource you are using, be cautious since laws, especially administrative laws such as immigration, are always changing.

Obtaining Successful Immigration Outcomes

For noncitizens that are charged with a crime, one should always consider not only the criminal consequences involved, but also the immigration consequences.  For some, they are going to care much more about the possible criminal penalties than any immigration consequences.  But for others desperate to remain in the U.S., they would sacrifice almost any other consideration in order to avoid removal.

If they are in the latter category, there are many cases where it is possible to identify a plea that is roughly equivalent to the one charged but is safer for immigration purposes.  A few examples of successful immigration plea strategies are:

• For some offenses, they become aggravated felonies only if a sentence of a year or more is imposed.  Successfully deployed strategies include:
  • Defense counsel negotiated a sentence of 364 days rather than 365.  The conviction for a crime of violence was not an “aggravated felony.”
  • Defense counsel declined to accept a 16 month sentence with credit for six months time served, and instead bargained for a sentence of 11 months with no credit for time served.  The conviction for theft had less than a year’s sentence and was not an “aggravated felony.”
  • Defense counsel, handling a probation violation, pled to a new offense, rather than adding time to the original offense that would cause the sentence to exceed 364 days.  The residential burglary conviction was not an “aggravated felony.”
  • Defense counsel negotiated a plea to possession for sale of a “controlled substance” rather than methamphetamines.  The conviction did not cause deportability and was not an aggravated felony as a drug trafficking offense.
  • Defense counsel pled to transportation rather than sale of heroin.  The conviction was not an “aggravated felony.”
  • Defense counsel pled to spousal battery and kept the conviction record clear of evidence that more than offensive touching had occurred.  The offense did not cause deportability as a crime of domestic violence.

Criminal defense attorneys and criminal defendants should research the immigration laws to see if one of these, or another, strategy would be successful.  Because of the complex and ever-changing nature of immigration regulations, consultation with an immigration attorney who has knowledge about the immigration consequences of criminal charges may be necessary.

Todd Gallinger is an attorney who works in the areas of business and immigration law.  He is available for consultation on the immigration consequences of criminal offenses.  Todd can be contacted via his websites, http://gallingerlaw.com and http://socalimmigration.com, or at (949) 862-0010.