Criminal defense attorneys are often not immigration specialists. Yet, attorneys are expected, in fact, professionally obligated to be able to identify potential immigration consequences facing the criminally accused. There are many immigration issues throughout a criminal case that require knowledge, concern, and care.
There is a misconception that if the defendant is not found guilty of anything and has not pleaded guilty to anything that there cannot be immigration consequences. This false assumption is rooted in our notion that we have a presumption of innocence. While that may apply in a court of criminal law, that concept does not transcend into the immigrations courts. For example, a foreign national who has no lawful status in this country because he or she entered illegally, will immediately be on the defensive and subject to deportation the moment they are criminally charged and brought to the attention of Immigration Control Enforcement (I.C.E.). It does not matter to the immigration courts that the particular defendant may in fact be innocent of their pending criminal charges, what matters to them is that person has no lawful right to be in the U.S. boarders.
Assuming the person has some status in the country, vis-à-vis a green card (permanent resident alien) a visa, or perhaps even a visa overstay, deportation can be delayed and possibly avoided entirely if the criminal matter is handled with care. In those jurisdictiosn that still have monetary bail, understand that posting bail or being released in the jurisdiction that is prosecuting the case has no impact on whether I.C.E. will detain the defendant. A trained immigration attorney may be able to argue for immigration bail which is separate and apart from the bail paid to get out of the local jail. Understand further that in a handful of jurisdictions, a defendant who is detained by I.C.E. and is housed in a federal facility or a local facility that has contracted with the Department of Homeland Security for the purpose of housing I.C.E. detainees may not be entitled to any jail credit for the time spent in that facility.
Once the matter is past the charging and bail stage, the most important issue requiring the utmost care is the resolution of the case. Counter intuitively, the best deal in a criminal case may not warrant the best outcome for the immigration defendant. For example, while most states offer some sort of diversion to prosecution through a term of probation that will lead to a dismissal, more and more states are conditioning diversion on a plea of guilt. Even though on the criminal case, the charges will ultimately be dismissed, that entry of a guilty plea is admission enough to trigger immigration consequences. In such situations, a plea of guilty to a non-triggering offense may have been the preferable course.
Those seeking to avoid immigration consequences must make any effort to avoid a conviction for aggravated felonies and Crimes Involving Moral Turpitude. While plea-bargaining to a lesser included crime may seem like the answer, unfortunately state classification of criminal offenses are not universal and are not necessarily the same as under the federal code. A simple misdemeanor shoplifting in your local jurisdiction may likely be viewed as a Crime Involving Moral Turpitude which in certain circumstances can have drastic immigration consequences. Or take for example D.W.I. or D.U.I. which in many jurisdictions is treated as a traffic offense, yet a conviction for either can lead to deportation, bars to reentry, or an inability to later gain citizenship.
For certain, there is a tremendous overlap between criminal law and immigration law. A wise defendant and competent criminal counsel such as the Middlesex county NJ Criminal lawyer will consult with an immigration specialist throughout the representation and take efforts to avoid steps in a criminal case that may have permanent immigration consequences to the defendant.
Thanks to authors at Roberts & Teeter LLP for their insight into Criminal Law.