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Immigration Problems for Non-Citizens Accused of Crimes in New York City

By Don Murray, Esq.

The most commonly thought of problem associated with being accused of a crime for those who are not citizens (including legal residents) is DEPORTATION. Deportation is the forced removal of a person from the United States, usually returning the person to the country of citizenship. Deportation is like banishment from the United States.

Certainly deportation can have life changing effects on people’s lives on a par with or even more devastating than a criminal conviction or even jail. Families can be torn apart and people can be forcibly returned to countries they have never really known. These stories are frequently terribly sad and in many cases apparently unjust to most people.

But there is another, more insidious potential problem for those accused of crimes who are legal residents but not citizens of the United States: INADMISSIBILITY. Inadmissibility means that the immigration laws prevent you from entering the United States (say at an airport). Notice that inadmissibility is different from deportability. Under the complex web of immigration rules, there are situations in which people may not be deportable, but they are nevertheless inadmissible.

If you are in the strange group of people who are not deportable, but nevertheless inadmissible, then you are not subject to deportation and can remain within the United States as long as you are otherwise permitted under the law. But if you ever leave the country for any reason (vacation, for example) you could be stopped at the border coming home and denied admission into the United States.

The circumstances under which a person can be made inadmissible but not deportable are not what most people would expect. For example, probably the most surprising circumstance is the person who is accused of a crime (say drug dealing) and who is then acquitted (found NOT GUILTY). The person who is found NOT GUILTY is not deportable because there was no conviction. But, if the case involved dealing in drugs, the person is at risk of being labeled “inadmissible” if the United States Government decides that there is “reason to believe” he is involved in drug dealing. Isn’t this strange? The United States Government is using a finding of not guilty AGAINST someone. 

This is only scratching the surface of potentially unusual results of even positive resolutions to criminal cases for those accused who are legal residents but not citizens of the United States.

This is why those who are not actually citizens of the United States should take any contact with the criminal justice system highly seriously and seek competent representation both as to the criminal case and as to the potential immigration questions.

At Shalley & Murray, we have more than 20 years experience representing people accused of crimes, and we have successfully navigated many non-citizens through the criminal justice system. Often this involves working with a lawyer who handles immigration issues.  We always recommend that our clients seek the additional advice of a lawyer who does nothing but Immigration law before entering into any plea agreement.

Immigration law is a highly specialized, incredibly complex web of interactive, constantly changing rules and regulations. Immigration law is not a hobby. At Shalley & Murray, we are happy to work together with competent immigration lawyers to achieve the best possible position for our clients, both with respect to the criminal case and with respect to the immigration case.

Realistically there are going to be times when it will be impossible to reconcile the immigration problems and the criminal law problems. In other words, there will be times when trial is not a realistic or wise option, but the best plea that can be obtained is one that would certainly cause immigration problems. It is easy to say “he can’t accept that because he is not a citizen – get a different offer or have the case dismissed.” In some circumstances, this is just not realistic.

From the criminal defense lawyer’s perspective this can be extremely frustrating, because the criminal defense lawyer knows that immigration problems are not a defense to any crime. Having potential immigration problems is not something that improves the quality of a criminal case, or makes it more likely that a person will be found not guilty at trial. Furthermore, many Assistant District Attorneys are not terribly sympathetic to the notion that a non-citizen ought to be given an extra-specially good deal simply because he is a non-citizen. Certainly there will be cases in which prosecutors might be convinced that deportation is more of a consequence than was necessary given the nature of the case, but there are also many cases in which non-citizen status will be irrelevant to the Government’s considerations.

All of this is not meant to suggest that there is nothing that can be done, but simply to stress the importance of obtaining competent defense for any non-citizen accused of a crime. All possibilities must be explored to make sure that the case is resolved in the way least likely to harm the immigration status of the person accused.

What Sorts of Crimes are “No Good”?

The answer to this question is actually far too complicated to answer completely, especially by me. An experienced immigration lawyer would be the best person to answer this question completely.

On the other hand, certain broad generalizations can be made:

Guns and Drugs are VERY bad. Pleas of guilt for drugs should be reviewed carefully for negative immigration results (deportability and inadmissibility). Marijuana possession of less than 30 grams can be ok depending on how long the accused has been in the United States.

Violence is VERY bad. Pleas of guilt to crimes of violence like assault, are bad news.

Theft is bad, especially if it involves lots of money, like say, over $10,000.

Domestic Violence is very bad.

Just about anything New York considers a felony is bad.

Many misdemeanors in New York can also have felony-like results. Most misdemeanors in New York can be considered felonies under immigration law. Depending on the type of case, the length of time the person has been in the country, and some other factors, a non-citizen may be able to absorb a misdemeanor without deportation, although you have to watch out for inadmissibility.

In the end, non-citizens frequently have two incredibly high-stakes problems whenever they are accused of a crime in the United States: 1) The problem of a criminal conviction and potentially going to jail and 2) The problem of being banished or excluded from this country. Non-citizens, therefore, need competent representation that takes into consideration BOTH problems.

Otherwise, the immediate problem of the criminal case might be “solved” but in so solving the criminal case, the person may find himself sent back in chains to a country he has never known or would prefer to avoid.

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Non citizens face double the challenges of citizens accused of crimes, and in some ways even higher stakes. Even if non-citizens don’t go to jail, the outcomes of their cases can still cause them to suffer life crushing consequences of removal from the United States and separation from their families.
— Don Murray

Immigration and Citizenship Issues for New York State Convictions

New York criminal defense lawyer Don Murray provides a general overview of potential immigration problems for non-citizens accused of crimes in New York Criminal Court, including discussions of deportation, inadmissibility, and the realities of negotiation in a non-citizen case in New York.

Call 718-268-2171 for more information about immigration consequences of criminal convictions in New York or to schedule your free consultation with a New York criminal defense lawyer from Shalley & Murray.

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