If you are convicted of a crime, you could be deported. The United States government is serious when it comes to excluding and deporting immigrants who have been committed and subsequently been found guilty, either through a voluntary plea or a jury trial. U.S. policy is strict and it does not take into account whether it separates family members.
It is crucial that you not only hire an attorney that is experienced with immigration law but is extensively familiar with the criminal justice system and the laws. But more importantly and lesser known fact, you need to prevent the conviction at the first level—at the criminal level. This is when the client’s nightmares and problems in deportation should be mitigated and completely prevented.
When hiring a criminal defense attorney, you must look for someone who personally knows the prosecutors and judges. This is the reality—you can negotiate a much better deal with prosecutors if your attorney is familiar with individuals in the prosecution agency and if necessary, set up a meeting with the supervisors. This is crucial for criminal deportation proceedings since reducing a charge, reducing a sentence to less than one year and even an outright dismissal would prevent deportation.
For many who were not adequately represented in the criminal level, it is too late, they have already been convicted of a crime defined as one of moral turpitude, aggravated felony or have been sentenced to more than one year in jail. Many immigration lawyers will represent themselves as being adequately familiar with the criminal law system.
However, the truth is that many have never negotiated with prosecutors and/or familiar with the many criminal laws, its defenses and its sentencing parameters. It has been said amongst us practitioners in the criminal arena; “knowing what a case is worth” takes experience. This simply means you can not ask a prosecutor for a reasonable disposition unless you personally know what the judge and the prosecutor would entertain.
Additionally, it is crucial in the criminal level that if your client’s immigration status is greatly at risk, a jury trial may be the only solution. A criminal conviction is always a big deal, but for many individuals, they are able to deal with the consequences of their actions and move on with their life. For a non-U.S. citizen, it is not that simple. Even a misdemeanor crime such as domestic violence or petty theft could lead to deportation. If you are an immigrant, a criminal conviction makes you ineligible to immigrate to the U.S. If you have a green card, you can lose your permanent residency and any chance for American citizenship.
Best efforts to prevent a criminal conviction must be achieved. As I already stated, an effective criminal defense attorney needs to negotiate a sentence that would be for the best interest for the client in both his/her criminal case but must also be cognizant of the immigration consequences. If negotiations with the prosecutor do not work and his/her citizenship is jeopardized, then I prepare my clients to go to trial.
A criminal conviction may start a removal action to deport you. Even if you are allowed to stay in the country, it may adversely affect your employment prospects or you may not be granted a security clearance. If the conviction is for domestic violence, you may lose your child custody or visitation rights with your children, in addition to the revocation of your visa. If you are a legal resident who has a criminal conviction, you may not be able to travel abroad without losing your residency status.
An experienced criminal defense attorney will also advise you of how to get a conviction expunged or set aside. For example, I had a prior client who was charged with sales of drugs, I was able to have the prosecutor offer my client a charge of simple possession. Since it became a mere possession case, my client completed a drug diversion program and the case was dismissed. I have negotiated cases that upon completion of community service or payment of fines, a lesser charge was imposed and consequently did not place my client at risk of being deported.
It is clear that the first step in defending deportation due to a criminal conviction is to ensure that your criminal case is handled in a manner that does not even place you at risk of deportation. If you have any comments or additional questions, feel free to email me at [email protected] or visit my website at attycastaneda.com.