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Criminal Defense Attorney's Guide for Assessing Potential Immigration Issues

In Padilla v Kentucky, the U.S. Supreme Court held that it is ineffective assistance of counsel under the 6th Amendment of the U.S. constitution if a criminal defense attorney does not advise a client of the potential adverse immigration consequences associated with a criminal conviction.  This article gives generally guidance to criminal defense attorneys on assessing potential immigration issues in criminal cases. 

Step 1: Determine the Client's Immigration Status

U.S. Citizen—This includes persons who acquired U.S. citizenship at birth or those who are naturalized U.S. citizens. There are no potential immigration consequences for U.S. citizens. If the client was not born in the U.S. it is wise to ask the client additional questions to ensure they are in fact citizens. Some FN's do not understand the difference between residency and citizenship. Additionally (and this is especially true with older Canadians), some foreign mistakenly believe they are citizens.

Lawful Permanent Resident—Sometimes referred to as resident aliens, LPR's are foreign nationals who have been granted permission to live and work in the U.S. indefinitely. LPR's are subject to deportation and removal from the U.S. Criminal convictions can have dire consequences for an LPR. Even if the crime is not one that may result in the LPR's removal, a criminal conviction can cause problems in the future if a LPR applies for naturalization. LPR's should have a LPR card evidencing their status.

Non-Resident Aliens—This includes several classes of FN's who enter the U.S. on non-immigrant visas such as students, visitors, temporary workers and many others. All non-residnet aliens are subject to deportation and removal for conviction of certain criminal offenses and must be counseled accordingly. Most non-resident aliens will have a U.S. visa affixed to their passport but some will not.

Illegal/Unlawful Aliens—This includes FN's who entered the country illegally (entered without inspection or EWI) as well as FN's who entered lawfully but failed to return to their country when required or otherwise violated the terms of their visa. These folks have other problems but criminal convictions will adversly affect them. Unlawful aliens may also be subject to Immigration and Customs Enforcement detainers which may prevent them from being released from custody even if after any imposed jail sentence has been served.

Step 2: If the client is not a U.S. citizen, determine if the proposed plea could have adverse immigration consequences.

Controlled Substance Crimes –Always a problem

A FN who violates any law or regulation of a State or the United States relating to a controlled substance (as defined in section 102 of the Controlled Substances Act) is inadmissible.

  • There is no waiver available except for a single offense of simple possession of 30 grams or less of marijuana. See INA §212(h).

  • A conviction is not necessarily required. Applies to any FN who is “convicted of, or who admists having committed, or who admits committing acts which constitute the essential elements of” a controlled substance violation.

    • An admission is valid for U.S. immigration law purposes if: 1) The act is considered criminal under the law of the place where the act was alleged to have been committed; 2) The FN was advised of the essential elements of the crime; 3) The FN clearly admitted conduct constituting the essential elements of the crime; and 4) The admission was freely and voluntarily made. Matter of K, 7 I&N Dec. 594 (BIA 1957).

  • FNs who are not convicted and did not make an admission must still be careful and concerned about what is available in the public record. Any public record that involves the FN and the use or possession of a controlled substance could cause inadmissibility issues under health-related grounds pursuant to INA §212(a)(1)(A).

Alcohol Related Crimes—Sometimes a problem

Alcohol related crimes such as drunk driving can be problematic from an immigration stand-point for two reasons: 1) They can be considered crimes of moral turpitude and render an FN inadmissible; and 2) They can be used to support a determination that the FN is an addict or alcoholic and therefore inadmissible for health related grounds pursuant to INA §212(a)(1)(A).

  • Generally speaking, a single conviction for drunk driving will not render a FN inadmissible. However, multiple DUI convictions or a single DUI conviction in combination with other alcohol or non-alcohol related convictions can render an FN inadmissible.

  • A single conviction for an aggravated alcohol related crime that involves an accident or personal injury may render a FN inadmissible. This may also be true for new “super drunk” laws.

Crimes of Moral Turpitude (Most felony offenses) –Usually a problem

FN's convicted of or who admit to the essential elements of a “crime of moral turpitude” are inadmissible. INA §212(a)(2)(A)(i)(I). A “crime of moral turpitude” is not defined by statute but generally includes: 1) Most felony offenses; 2) Crimes of violence that have an element of intent; 3) Domestic violence; and 4) Most crimes that involve fraud or theft.

  • FN who has only committed one crime of moral turpitude is not inadmissible if maximum penalty for crime is not more than one year AND FN was not sentenced to a period of incarceration exceeding 6 months. INA §212(a)(2)(A)(ii)(I).

  • FN who has only committed one crime not inadmissible after five years if FN was under age of 18 at time crime was committed. INA §212(a)(2)(A)(ii)(II).

  • FN convicted of two or more offenses and sentenced to a total of 5 years or more is inadmissible. INA §212(a)(2)(B).

  • “Conviction” is defined by INA §101(A)(48)(A) as a formal judgment of guilt entered by a court OR if adjudication of guilt has been withheld where: 1) A judge or jury has found the alien guilty, the alien entered a plea of guilty or nolo contendre, or the alien has admitted sufficient facts to warrant a finding of guilt; or 2) The judge has ordered some form of punishment, penalty or restraint on the alien's liberty. This includes any reference in a court order to a term of imprisonment regardless of whether imposition or execution of the sentence was suspended. INA §101(A)(48)(B).

Other Potential Problematic Convictions

  • Prostitution and gambling offenses. INA §212(a)(2)(D).

  • Money laundering. INA §212(a)(2)(I).

  • Human traffickers. INA §212(a)(2)(H).

  • Terrorism. INA §212(a)(3)(B).

Step 3: Inform the client of the potential immigration consequences of the plea

The best practice is to simply advise any client who is not a U.S. citizen that a criminal conviction may have serious adverse immigration consequences including deportation, future inadmissibility and/or inability to become a naturalized U.S. citizen.

This should be standard practice unless the client is a first time offender and is pleaing to: 1) Simple possession of less than 30 grams of marijuana; or 2) A crime with a maximum penalty of not more than one year and the client will not be sentenced to imprisonment for more than six months.

*All non-citizen clients should be advised that a conviction to any alcohol or drug related crime can have adverse criminal consequences on health-related grounds irrespective of whether or not the conviction renders them inadmissible on criminal grounds.

Step 4: Determine if a plea can be fashioned to minimize the adverse immigration impact

  • For first time offenders, can you negotiate a plea to a crime that carries a maximum penalty of not more than 1 year and a sentencing agreement that calls for no more than six months jail?

  • For first time offenders charged with drug crimes, can you negotiate a plea to a marijuana possession offense (less than 30 grams) in exchange for a stiffer sentencing agreement or some other consideration?

  • Can you negotiate a deferred sentence wherein the client will not be required to enter a guilty plea, nolo contendre plea or admitt sufficient facts to warrant a finding of guilt AND wherin no punishment or restraint on the client's liberty is imposed?

  • Can you negotiate a plea to one or more offenses that are not crimes of moral turpitude or drug offenses and keep the client's total aggregate jail or prison time to less than five years (the five year aggregate includes all previous crimes for which client was convicted.)?

If your client is a non-citizen and facing criminal charges it is critical that you conduct a thorough assessment of what consequences a criminal conviction may have on the client's immigration status.  In many cases there may be absolutely nothing you can do to change the outcome but Padilla requires that the client be sufficiently advised.  If you would like assistance with a criminal case involving a non-citizen please feel free to contact me for a courtesy consultation.