As a Criminal Defender, You Have Immigration Obligations

 Sometimes a defense attorney will assure me: “But this plea won’t be a problem- it's a misdemeanor.” This is absolutely wrong. In 95% of immigration cases, it is the elements of the offense, rather than whether it is a felony or a misdemeanor, that controls. 

While there may be exceptions for a single CIMT [Crime Involving Moral Turpitude] misdemeanor depending on the potential sentence, these exceptions do NOT apply to a misdemeanor drug conviction or another type of offense that triggered a non-CIMT ground of removal. In other words, never assume that a plea is safe for immigration consequences just because it is a misdemeanor. 

Immigration law contains many different grounds of removability, of which Crimes Involving Moral Turpitude ("CIMT's") and aggravated felonies make up only two. 

However, since CIMTs and aggravated felonies are frequently discussed and commonly associated with immigration consequences, it is easy to assume that if an offense is not a CIMT or an aggravated felony, the plea must be safe. But consider: a conviction for simple possession of meth is not a CIMT or an aggravated felony, yet it will trigger both inadmissibility and deportability as a controlled substance offense. Therefore, do not assume that a plea is safe just because it is not a CIMT or an aggravated felony. 

Immigration law has its own definition of “conviction,” and many diversion programs will still satisfy this definition even if the charges are ultimately dismissed under state law. Look at 8 U.S.C. § 1101(a)(48)(A) to see whether your court’s particular program qualifies as a “conviction” for immigration purposes, if there is ambiguity, assume that it will. 

 This is a common statement by defense attorneys, but it can be very confusing for immigration attorneys. In general, an immigrant will go from having no lawful status in the U.S. (or having temporary status, such as a visa), to obtaining lawful permanent residence (often known as a “green card" or “LPR"), to becoming a U.S. citizen. In other words, you will almost never have someone go straight from being undocumented to being a U.S. citizen. Therefore, when a defense attorney says, “the client is applying for citizenship” an immigration attorney may mistakenly believe that the client is an LPR and give inaccurate advice based on this. 

Remember: a client who is undocumented is never applying for citizenship – she is applying for her green card. 

 Sometimes deportability will be triggered by an offense that's committed within a certain time period of the client's admission to the U.S. However, the date of a client’s physical entry to the U.S. may be different than the date that the client was formally admitted to the U.S. For instance, if the client entered illegally in 1998 but was only admitted as a lawful permanent resident in 2008, the 2008 date would control for determining whether the client was convicted of a CIMT within five years of admission. Therefore, it is critical to find out not just when the client entered the U.S., but when the client was given official legal status once inside the U.S. 

Failing to advise on travel consequences is the quickest way to undo all the hard work you put into creating a safe plea. A conviction that is perfectly safe for someone inside the U.S. may trigger removal, mandatory detention, and years of litigation just because the client stepped across the border. 

In some cases, leaving your federal circuit may even be a problem. This regularly occurs in our advisals, and we can give you a detailed written warning about what the client can and cannot do. 

It is true that you cannot do much about prior offenses, particularly if your client is already removable as a result of them. But sometimes the immigration consequences of the current plea are also highly dependent on priors as well; for instance, an LPR who accepts a plea to simple possession of 30 grams or less of marijuana will be removable if she has a prior marijuana conviction since she will no longer have a "single" offense. 

Remember to specifically inquire about misdemeanors and any diversion programs since many clients may not consider these “convictions.” Likewise, sometimes simply having previously been arrested can cause you problems. We need to know every single contact with law enforcement at anytime, anywhere in the world… 

 In calculating removability and eligibility for relief, the date that the alleged offense was committed is often critical. The most important example of this involves removability for a CIMT that is committed within five years of admission; thus, a client who is admitted in 2005, commits a CIMT in 2009, and is convicted in ‘.2010 will be removable. A client's ability to fight her case may also depend on whether the date of commission “cut” the time necessary to apply for a waiver or pardon. 

 Some grounds of removal (particularly aggravated felonies) are triggered by the length of the sentence that was actually imposed. A sentence of incarceration that results from a probation violation will be considered part of this sentence for immigration purposes. Therefore, a probation violation could turn a non-removable offense into an aggravated felony merely by increasing the sentence. Do not assume that probation violations will not trigger immigration consequences 

 Immigration consequences can differ wildly based on the exact immigration history, criminal history, and family connections. A particular crime may be no problem at all to a refugee, but may cause an asylee to be deported. Never assume, and get an advisal. 

 We have come across this situation many times. Put simply, while it is always the client’s choice how to proceed, their choice may not be informed without detailed information about the immigration consequences. Where the defendant is offered immediate release in exchange for a given plea, they may not actually be released! They may be immediately picked up by ICE upon release from the Jail. Once in ICE custody, they may be subject to mandatory detention (i.e. not able to even request that they be released from custody) and there are NO speedy trial rights in immigration; even while detained!

In these cases, we many of the defendants who were so adamant they wanted to take the plea quickly change their mind; spending another few nights in jail in order to get to an immigration-safe plea may be better than spending several MONTHS in immigration custody facing deportation.

Failure to file a timely notice of appeal – even if you waived appeal and even if you have not identified any specific grounds at the time – could constitute ineffective assistance of counsel.

If a non-citizen is involved, always assume that you HAVE TO file a notice of appeal in all circumstances, unless we specifically tell you in that case that you do not need to.