The Consequences of a Criminal Conviction
March 30th, 2012 by Nevin F. Murchie
In the unfortunate event that a foreign national, whether in lawful permanent resident or non-immigrant status, is charged with a criminal offense, it is critical that he or she immediately consult a knowledgeable immigration lawyer about the possible implications a conviction may have on his or her immigration status. For example, you do not want to plead guilty to a “lesser” crime to avoid jail time, but find out later that the conviction has now made you removable under immigration laws.
Recently, our firm encountered several cases that highlight the importance of consulting an immigration lawyer before making any criminal judgments are entered against the foreign national. Below I have provided several scenarios to help illustrate my point:
CASE A: John, a Canadian non-immigrant in F1 status, was convicted for “manufacturing, distributing, or dispensing a controlled substance,” namely: marijuana. During the proceeding, the defense lawyer was able to spare John time in jail; however, the lawyer failed to address the ramifications of his John’s conviction on his immigration status.
Recently, while John was traveling back from Canada, his conviction was uncovered by Customs and Border Protection (“CBP”). He was detained and subsequently charged under INA § 212(a)(2)(C)(i) as a “trafficker in a controlled substance” and was therefore inadmissible to the U.S.
In this case, the criminal defense attorney should have ideally consulted with an immigration lawyer before allowing his client to plead guilty to the drug conviction. Based on the facts above, an immigration attorney would have advised the defense attorney about the severe consequences of a drug conviction under U.S. immigration law, advised John about the ramifications of traveling abroad, and the potential for being placed in removal proceedings.
Thus, while the criminal lawyer was successful in sparing John jail time, John’s conviction renders him inadmissible to the U.S. without a waiver.
CASE B: Rafel, a lawful permanent resident of the United States of three (3) years, pled guilty to the charge of burglary in the second degree (a violent felony offense). Rafel did not serve any time in jail; however, he was sentenced to five years of probation. Unfortunately, the public defender representing Rafel did not consider the possible negative effects that a guilty plea may have on Rafel’s immigration status.
Two (2) years later, Rafel lost his permanent resident card (aka green card) and filed a Form I-90, Application to Replace Permanent Resident Card with USCIS. However, when USCIS completed their background checks while processing his application, they uncovered his conviction and placed him in removal proceedings by charging him as being removable from the U.S. under INA § 237(2)(A)(i)(I) as an alien who has been convicted of a crime involving moral turpitude (“CIMT”).
Our office was hired to represent Rafel in his removal proceedings. Ultimately, we were successful in working with Rafel’s current criminal defense attorney to have the conviction vacated and reduced to a lesser crime not involving moral turpitude. Vacating a conviction is an option, but the facts of your case must warrant such an action. In general, a sentence cannot be reduced solely for immigration purposes; however, in this case, Rafel’s criminal defense attorney was able to successfully argue that his due process rights were violated. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (criminal defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea).
The examples above help illustrate the importance of LPR’s and nonimmigrants addressing his or her immigration status when involved in a criminal proceeding. These individuals should not wait until there is an actual immigration issue before contacting an immigration lawyer, because by then it may be too late. The best chance for a favorable result will be when they involve an immigration lawyer as early in the process as possible.
If you are a non-immigrant or an LPR who is currently in criminal proceedings, please contact our office to schedule a consultation to discuss the ramifications of any criminal convictions to your immigration status.
