Immigration Consequences of a Criminal Conviction: Think Before You Plead!

Immigration consequences of a criminal conviction can be harsh. Often, too harsh. For those people who are not United States citizen, a criminal conviction can lead to deportation from the United States. For many non-citizens, United States is the only home they have ever known, having resided here since childhood. Returning to the United States after deportation is more difficult than ever. Deportation means near-permanent separation from family members, friends, loss of employment and end of life in the United States. But sometimes, all it takes is one mistake to lose everything.

However, not every conviction results in deportation. Current immigration laws allow non-citizens to seek special "waivers" for certain criminal convictions. However, not all waivers are available to every non-citizen. Some are available only to those who are lawful permanent residents (green card holders), such as a waiver under former INA section 212(c). While there are other forms of relief available to non-citizens who are not lawful permanent residents, having a criminal history will certainly play a factor in a decision by an immigration judge or the Department of Homeland Security official on the non-citizen's future in the United States.

If you are a non-citizen with a criminal record, the key to controlling your immigration destiny, however, comes very early, and not at the point where the Department of Homeland Security ("DHS") commences removal (formerly called "deportation") proceedings. Rather, the initial stages of the criminal proceedings that eventually lead to a conviction will often control whether a non-citizen will have an opportunity to remain in the United States despite a criminal conviction.

I am writing this blog as a public service to all non-citizens (or their family members or friends) who are currently facing criminal charges in a state of a federal court, but have not yet pleaded guilty to any crime or offense. The message is simple: you must know whether your guilty plea and subsequent conviction will trigger removal proceedings (formerly called "deportation") against you. And you should know this BEFORE you plead guilty to anything!

Of course, this means that your criminal defense attorney representing you on the criminal matter MUST have an understanding of what immigration consequences you may suffer if you are convicted of a certain crime (usually the crime you are charged with). All too often, criminal attorneys are not well-versed in current U.S. immigration laws and are unable to advise you on the potential immigration consequences of a specific conviction. This is one reason why a consultation with an immigration attorney with experience in criminal deportation matters is critical.

Let me illustrate a typical situation I hear from my clients all the time. You are arrested and charged with a crime. You hire a criminal defense attorney (or are appointed one). Of course, you do not want to go to jail. So, looking at your situation, your criminal defense attorney advises you that the best thing to do to avoid jail time would be to plead guilty to the crime or to a lesser offense, and receive probation or a monetary fine. Assuming the prosecutor and the judge agree to such a bargain, this sounds like a good deal. After all, you do not want to go to jail! So, you plead guilty to a crime to avoid jail time. You are sentenced to probation and you successfully complete your probation, thinking the past is now behind you. As far as the criminal attorney is concerned, he or she achieved a good result for you -- you avoided jail time and you were only sentenced to probation.

You continue to live your life in the United States. You have a family, including children. You have a job. You pay your bills and taxes. You have turned your life around from whatever situation that led to your conviction. Weeks, months, or even years pass by without any problems. Suddenly, the Department of Homeland Security begins removal proceedings against you, alleging that you are "removable" from the United States on the basis of the crime you pleaded guilty to. Now, you have to go to immigration court, deal with a DHS lawyer who wants you deported as soon as possible, and deal with a judge who may or may not let you stay in the United States. You are forced to go through this process, regardless of how long you have been in the United States, regardless of how many family members you have that depend on you for financial, emotional, and moral support, and regardless of the fact that you have been working hard and paying taxes in America.

Naturally, you should wonder "why didn't my criminal defense lawyer tell me that I could be deported if I got convicted of [whatever offense you pleaded guilty to]?"

If you are facing this situation, you are not alone! While your criminal defense lawyer may have done a great job in getting you a lesser conviction and a sentence, what he or she didn't tell you -- because he or she probably didn't know -- was that even though you pleaded guilty to avoid jail time, and even though you were only sentenced to probation, the specific offense you pleaded guilty to is a removable offense under the immigration laws of the United States. This means that even though you fully accepted responsibility for the crime (by pleading guilty) and served your sentence, the Department of Homeland Security can still punish you by trying to deport you for that crime! This is because criminal laws are different from immigration laws. You aren't being punished "twice" by the criminal system for the crime, because immigration proceedings are civil in nature. So if you think that just because you pleaded guilty, served your sentence or probation and have "put the past behind you," you may be wrong. Your past conviction can still come back to haunt you!

This is why is it critical to seek the advice of experienced immigration attorneys BEFORE you plead guilty to anything in state or federal court! Most criminal defense attorneys are simply not educated on the immigration consequences of a criminal conviction, including possible mandatory detention by the DHS. Therefore, you should take it upon yourself to ask all the right questions to an immigration lawyer with experience in criminal deportation defense matters. Working together with an immigration lawyer and your criminal defense lawyer will allow you to understand what can happen to you if you plead guilty to a certain crime, and may allow your criminal defense lawyer to "negotiate" with the prosecutor about reducing the criminal charges. But until and unless you and your criminal defense attorney understand the immigration consequences, you are risking deportation.

Recently, the New Jersey Supreme Court issued a detailed decision in State v. Nunez-Valdez (A-46-08) (Jul. 27, 2009), where it found that the defendant's lawyer in criminal court provided him ineffective assistance of counsel when he misinformed the defendant that his conviction for criminal sexual contact in the fourth degree would not result in deportation if he pleaded guilty to it, especially since the defendant said that had he known about possible deportation, he would not have pleaded guilty in the first place. The lawyer had advised him that if he pleaded guilty, he would get 5 years probation as opposed to a 10-year jail sentence if he went to trial and was convicted. Of course, the defendant chose to plead guilty. The Court found that the lawyer gave bad advice to his non-citizen client and recommended reforming the plea notices to defendants to include a notice about immigration consequences of a guilty plea and notifying defendants of their right to seek legal advice about their immigration status.

This is just one example. Indeed, criminal defense attorneys are usually not experts in immigration laws. It is your job to find out from an expert in immigration law (and especially an attorney with experience handling criminal deportation cases) about what could happen to you if you plead guilty to a certain crime. Not all criminal convictions result in deportation. Some criminal grounds of removability or inadmissibility can be "waived" by special waivers. But certain convictions will prevent you from naturalization. If all these issues are important to you -- and they should be -- then you should talk to an immigration lawyer before you plead guilty to anything!

-Ruchi Thaker