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 or
illegal 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.
Another unexpected result
might occur in a situation in which a person accused of possession of
drugs is offered some sort of conditional plea in which he can get his
case dismissed if he completes a drug program. If he completes the drug
program he gets his case dismissed. OK. That takes care of
DEPORTATION. He’s probably ok as to being deported. But his guilty
plea, entered at the beginning of the case may make him INADMISSIBLE
regardless of the ultimate dismissal of the case.
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 14 years experience representing people accused of
crimes, we make it a point to maintain a sufficient knowledge of
immigration issues to know what to look for, and we have successfully
navigated many non-citizens through the criminal justice system. We
nevertheless 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.
