DELITOS Y ADMISIBILIDAD¿Cómo Pueden Afectar a su Estatus Migratorio sus Antecedentes Penales?
Seven Myths about Immigration and Criminal Law
Foreign nationals living in the United States can face serious consequences, including deportation, if they are convicted of certain crimes. Unfortunately, most criminal defense attorneys have only the most basic understanding of immigration law. Criminal defense attorneys specialize in minimizing their clients’ sentences, but in most cases, they do not take into account how the conviction or the sentence might affect the client’s immigration status. Even if they do think about it, they rarely have the expertise to understand this complex area of immigration law. Therefore, if you are a non-U.S. citizen who has been charged with a crime, and you are considering pleading guilty to reduce the sentence, it is critical that you consult with an attorney specializing in immigration law and crimes so that you understand how any potential plea and sentence could impact your ability to remain in the United States. Even Lawful Permanent Residents, or green-card holders, could be deported based on certain crimes.
Many people fail to understand this importance, partly because there are many misconceptions about immigration and criminal law that people hear from their non-immigration attorneys or friends. These misconceptions can become traps that lead directly to removal proceedings, immigration court, and later on deportation without the ability to return to the United States. Here are the most common myths to watch out for:
- “I already served my sentence for my crime, so I can’t be punished again by immigration”. If you are not a citizen of the United States, the Department of Homeland Security has broad powers to detain and remove you from the United States for certain conduct that is deemed undesirable under our laws. The Immigration and Nationality Act contains several grounds of removal based on having been convicted of certain crimes. Depending on what you have been charged with and how your conviction is structured, you could be placed in removal proceedings before an immigration judge. Some grounds of removability can be waived if you meet certain requirements, but others, mainly those categorized under the Act as “aggravated felonies,” cannot be waived. In most cases these convictions permanently bar you from any immigration benefits. Importantly, it does not matter that you have fully served your sentence for your conviction. You will still have to answer for the conduct in immigration court if it is a removable offense.
- “I only have misdemeanor convictions, so I don’t have to worry”. Some misdemeanors are not a problem for immigration purposes, but some misdemeanors could be classified as aggravated felonies by the immigration laws. Therefore, do not agree to plead guilty to a charge simply because it’s a misdemeanor. Consult with an experienced and reputable immigration lawyer to make sure you will be okay.The Immigration Act makes no distinctions between felony and misdemeanor crimes. Instead, it categorizes crimes based on the type of conduct, often — but not always — taking into account the length of sentence that was imposed or severity of the conduct. For instance, if you have committed any type of theft or fraud, this will be categorized under the Act as a crime involving moral turpitude. Depending on your immigration status and prior criminal record, this may subject you to removal proceedings.
- “I don’t have a criminal conviction because I was sentenced under a ‘First Offender’ statute and my conviction was expunged”. The immigration law defines the term “conviction” in a completely different manner than state law does. A “conviction” under the immigration act is a plea or formal finding of guilt where some type of punishment is imposed. Under many states’ first offender type of statute, the defendant pleads guilty and is sentenced to punishment, usually jail time or probation. Once the defendant successfully completes the sentence and complies with some other requirements, the criminal conviction is expunged from his criminal record. According to some state laws, the person is released and may be treated like he was never convicted. Unfortunately, this has no effect for immigration purposes. It still remains a conviction in the eyes of the immigration laws, and could subject the person to deportation. That is why it is so important to understand that a conviction under a first offender statute can still have serious immigration consequences before agreeing to a first-offender guilty plea.
- “My criminal defense lawyer made sure that I was sentenced to less than a year, so there are no immigration consequences”. It is true that, for certain types of crimes, having a sentence of less than a year can save the foreign national from deportation. Many criminal defense attorneys take this to mean that, for any type of charge, all they have to do is structure a sentence for less than one year, and the client will be fine. In fact, this is only true with respect to a very narrow group of convictions. There are many types of convictions that will cause immigration problems regardless of length of sentence.Another common problem with sentences of less than one year is the way they are structured. If a person is sentenced to one year confinement, but the sentence is suspended upon service of probation, this is still considered to be a one-year sentence of confinement, even though the person did not actually serve any time in jail. In order to avoid this trap, the sentencing judge must clearly state on the conviction order that the person is not to serve any time in confinement and sentenced only to probation. This very subtle nuance in the language of the conviction can be the difference between keeping your green card and being deported.
- “I completed pre-trial intervention, so I don’t have a conviction”. This is true only in certain circumstances. Pre-trial intervention programs vary drastically among different jurisdictions. The basic idea is that, prior to entering a formal plea, the person agrees to complete some type of program, be it probation, substance abuse counseling, anger management, etc. If the program is successfully completed, the criminal charges will be dropped by the state and the person will not have a conviction under state law. The problem is that, in some jurisdictions, before the pre-trial intervention program is imposed, the defendant must go before a judge and admit guilt or be found guilty by the judge. The pre-trial program is itself a form of punishment. Immigration law defines a “conviction” as an admission or finding of guilt coupled with some type of punishment. Thus, in some jurisdictions, a pre-trial intervention, even where the charge is eventually dismissed, still counts as a conviction for immigration purposes.
- “My criminal record doesn’t matter because I’m a permanent resident who has lived her for many years”. Although permanent resident status is “permanent” in the sense that it never expires, it can be taken away by DHS based on certain types of bad conduct, including some criminal convictions. There is relief from deportation for some people in this situation (see Cancellation of Removal for Lawful Permanent Residents[KW1] ) based on a balancing of factors, and length of residence is a strong factor in favor of granting this relief. However, only U.S. citizens are immune from being removed on the basis of criminal convictions. Therefore, it is best to consult with a good immigration attorney prior to pleading guilty to any crime and prior to applying for naturalization.
- “I don’t have a conviction because I only got probation”. All that is required for a “conviction” for immigration purposes is a formal adjudication of guilt and some form of punishment. If you have been sentenced to probation, this means that you have been found guilty of the crime, either because you pleaded guilty or because a judge or jury found you guilty. Probation is considered a form of punishment, even though it is not jail time. Therefore, if you have been sentenced to probation, you have been convicted of a crime.While some crimes may not cause you to be put in jail, if you are sentenced to probation it could still have immigration consequences, for example, make you deportable. You should consult with an immigration attorney with expertise in criminal matters to determine whether that conviction has immigration consequences and what can be done about it.If you are a non-U.S. citizen who has been arrested and is facing criminal charges, or if you have had trouble with the law before, call our office as soon as possible in order to get help. Is it important for you to stay in the U.S.? If yes, call us today so we can find the best strategy to get you to stay here, despite criminal issues, and help you to avoid deportation.