Criminal Violations and Arrests in the Immigration Context30 Nov 2020
When individuals have a brush with criminal law, they are often afraid and, typically, very embarrassed. Such experiences generally are shared, if at all, only with those closest to the individual. Thus, it often feels as if there is no one to turn to for advice. It is important that a foreign national turn to a knowledgeable immigration lawyer for advice at the outset of any criminal charge or soon after an arrest. Criminal lawyers do not typically know all the implications of actions and options in the immigration context, and will often suggest immigration-specific input when defending against a criminal charge.
Potential Serious Immigration Consequences of Criminal Case
Individuals who are not U.S. citizens need to consider both the criminal law consequences of any charges against them as well as potential additional, adverse immigration consequences arising from the charges. Criminal charges can impact one’s current immigration status as well as eligibility for the full range of future immigration benefits.
Why Some Hesitate Speaking with an Immigration Lawyer
Anyone who has been arrested and/or charged with a criminal violation knows the initial period starting with the arrest or the issuance of a criminal citation can be extremely emotional and confusing. Unfortunately, not everyone in this situation seeks professional legal representation. Some believe that the nature of the charge/s is not serious enough to cause long-term problems. Others may have financial difficulties, or may misunderstand the value of such representation, choosing to avoid the expense.
Overview of Benefits from Consulting an Immigration Lawyer
The value of proper advice and representation corresponds directly to the value one places on avoiding or minimizing negative immigration law consequences. With proper counsel, it may be possible to select defense strategies and options that resolve the criminal issue in a manner more favorable from an immigration law perspective.
Essential: Early Analysis of Criminal Charges and Record
Even a seemingly minor criminal offense may result in numerous immigration problems, based on the intricate interplay of criminal law and immigration law. It should never be assumed that offenses, which may even contain the descriptive words “simple” or “petty,” will not create immigration problems. For example, even a petty shoplifting offense can, depending upon a number of factors, make a foreign national inadmissible to the United States.
Such an offense can also make a foreign national removable (deportable) in some cases. As another example, even a simple driving while intoxicated (DWI) offense can cause serious problems, and potential inadmissibility, for those applying for a visa at a U.S. consulate abroad.
Conflicts Between Criminal Law and Immigration Law
Every case depends on the individual circumstances and the state or federal criminal law provisions involved. There is a natural desire to find the fastest route toward making the case go away. Unfortunately, the fastest, simplest route to ending a criminal case is often not the best approach from an immigration viewpoint. Therefore, in addition to retaining criminal defense counsel, it is advisable to consult with a knowledgeable immigration attorney.
The criminal law attorney will focus on the penalties under that state’s criminal laws and generally provide advice and guidance that would be best for most U.S. citizens. Immigration attorneys review each option and assess these from an immigration point of view. A knowledgeable immigration attorney can guide the criminal attorney as to the factors that make for the best immigration options. This allows the criminal attorney to weigh the immigration factors, and potentially seek to negotiate offers favorable from the immigration angle, as well as taking other appropriate actions in challenging the case. In our experience at the Murthy Law Firm, the best possible outcome for the foreign national is far more likely if there is joint strategizing between the criminal defense attorney and the immigration attorney.
Strategies to Minimize Adverse Consequence of Criminality
Avoiding a jail sentence is one typical goal perceived as the best outcome of a criminal proceeding by a criminal lawyer and his/her client. However, the most important goal for a U.S. citizen client is not necessarily the same for a foreign national client.
In some instances, a resolution of a criminal case that results in a short jail sentence may benefit a foreign national more than a resolution with no jail time. This is particularly true when such a sentence is prescribed in exchange for a guilty plea to a less serious offense with favorable immigration implications. While avoiding time in jail seems an obvious preference, that option starts to look better when compared to having to leave the United States for being inadmissible or removable (deportable).
Differences Between Criminal Law and Immigration Law
Another common error regarding the most desired outcome is based on the differences between what is considered a conviction under state criminal laws and how that term is defined for federal immigration law purposes. Some criminal dispositions that are favorable for U.S. citizens and considered irrelevant under state criminal laws, may still be considered a “conviction” under U.S. immigration law. Examples include: certain pretrial agreements; deferred judgments; and many first offender programs that result in dismissal of charges under state law. Any such options, which seem very favorable on the surface, must be reviewed by an immigration lawyer to ensure they will not have unforeseen immigration law consequences.
Immigration lawyers can assess other aspects of criminal cases, including the impact of an extended probation period. We are often involved in decisions regarding admissions that should and should not be made on the record, as well as information that might be helpful if included in the official record of the criminal proceeding.
Confidentiality of Immigration Attorney’s Advice
For many, the need to seek immigration advice after an arrest is complicated by the relationship between the immigration attorney and the employer. If there are concerns about revealing the incident to the employer, it is possible to seek independent immigration legal advice. The attorneys at the Murthy Law Firm are available to assist in these situations, when appropriate. We can provide the type of guidance, assistance, and coordination described above, and can help determine if and when the matter could become important in the individual’s current or future immigration case/s.
Never Too Late for Immigration Advice
It is common for individuals to fail to get immigration advice in their criminal cases. In situations where the foreign national’s criminal case has been disposed of without this input, it is still important to seek immigration guidance. We can analyze the consequences of the outcome of the criminal case in the immigration context. In some cases, favorable decisions were made through luck or chance. In other cases, it may still be possible to avoid additional mistakes and, in limited circumstances, to revisit the criminal case.
Often, it is not possible to change the course of a past criminal proceeding. There may still be ways, however, to minimize its negative effect. It is especially important to obtain such an opinion:
- before filing an application or petition for an immigration benefit
- before travel outside of the United States
- before an application for a visa or admission at a U.S. port of entry
As many criminal records result in one or a combination of problems, a specific strategy can sometimes be devised to avoid the actions or minimize the consequences of an action that would be most problematic. In a very limited number of cases, it may still be possible to reopen a completed criminal proceeding in order to obtain beneficial post-conviction relief such as overturning a conviction based on a substantive or procedural defect, including the lack of immigration input.
The best way to avoid negative immigration consequences of criminal charges is, of course, to avoid activities that result in such charges. It is important to understand that, in the United States, common violations, such as shoplifting, drunk or impaired driving, soliciting prostitution, and assault are taken seriously. Immigration laws have particularly serious provisions for domestic violence and controlled substances charges. That trinket at the local mall, extra drink at the bar, or other temptation is far less enticing when it is viewed as a potential one-way airline ticket out of the U.S. But, if and when there is an arrest, one’s future options in the United States likely depend upon the choices made from that point forward. Those choices should be made with the help of a good criminal defense attorney and an experienced, knowledgeable immigration law attorney. The Murthy Law Firm can help guide and advise you in such situations should the need arise.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which remains relevant.
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