So you have a criminal case? First question. What’s your immigration status?
It is easy to mistakenly generalize about the immigration consequences of criminal convictions. However, it is vital to understand that not every foreign born defendant is treated the same under the United States immigration laws. It may seem to be counter intuitive that a country that prides itself on the goal of equal treatment of it’s citizens has a vast legal framework in place to treat non-citizens differently from one another. That is the unfortunate reality of immigration laws here and in most if not all other countries. This is why the client’s current immigration status and immigration history is so vital to know when developing not only a criminal defense strategy but also a strategy to enable the person to remain in the United States even if he or she gets convicted.*
The defendant’s opportunity to stay in the United States will often greatly depend on exactly what their status is and how long he or she has been in the country. As most of you know there are people here on “green cards”, student visas, and refugees. There are others there not even given a real status like those of deferred action and immigration parole. Of course there others who crossed over the border illegally and still others who initially came here legally on a student or visitor visa and overstayed their visa. The U.S. government allowed them to stay here as long as they complied with the conditions of their visa such as remaining a full time student for example. Those who have fallen out of legal status or entered without inspection (illegal entry) also face special hurdles to remaining in the country when faced with a criminal conviction or admission. These determinations are very fact specific and should be analyzed on a case by case basis to determine each client’s options. Bottom line is that everyone who is not a U.S. citizen, even a long time green card holder, can potentially be faced with deportation under certain circumstances.
I know in my practice, I ask everyone of my clients about their immigration status. I never assume they are U.S. citizens. The reason being, a criminal conviction for a citizen is often bad enough in terms of consequences. When you throw in the very important fact that they are here as non-citizens it can open up a potential can of worms in terms of immigration consequences. It is best to know their status up front in order for them to make an informed decision about how they want to defend their cases. In addition, sometimes a plea bargain can negotiated with a receptive prosecutor to limit the client’s exposure to deportation. There are even situations where the criminal conviction may appear to more severe in the traditional view of a criminal defense attorney when representing a citizen. However, in the context of representing the non-citizen, an unconventional plea agreement may help the client stay in the United States because of the way the federal government treats certain convictions and admissions to crimes.
*Crimmigration 101: A primer for Criminal Attorneys Representing Foreign-Born Defendants, Mary Kramer, Michael Sharma-Crawford, Rachel Self. 2016 AILA