CRIMINAL IMMIGRATION LAW 101

The Constitution of the United States makes the government prove all elements of a crime beyond a reasonable doubt before your freedom can be taken away. The Immigration & Nationality Act (INA - the main source of immigration law) says that if you're put in removal proceedings, all the government has to prove is that you're an alien. After that, it's your job to show you have the right to stay in the US.

The Supreme Court has said that every defendant in a criminal proceeding gets a lawyer. The respondent in removal proceedings doesn't necessarily get one, and if so, not at government expense.

The Constitution says if the government is going to charge and try you, it has to do so quickly and can't leave you in jail for too long waiting to be charged. The INA allows aliens to be detained for long periods of time, and sometimes actually requires it, without being charged with a crime.

The criminal defendant gets a jury. The criminal alien doesn't.

What do you get when these two wildly different bodies of law collide?

Welcome to the convoluted world of criminal immigration law. A body of law which prompts many people to say, in the words of one federal judge, “Go figure.” (1)

* * *

The basic things any non-citizen has to appreciate if he or she is charged with a crime are:

• The alien will have to deal with the government twice – once for the crime, once for immigration
  
• Law enforcement works closely with ICE DRO (Immigration & Customs Enforcement – Detention & Removal Operations) so more and more, if you're charged with a crime, and you're not a citizen, ICE finds out.
  
• Your basic freedoms are rights that can only be taken away after proof beyond a reasonable doubt. Your immigration status is a privilege that can be taken away if you can't show you deserve to keep it.
  
• Laws for criminal aliens often exalt form over function. It might not make “sense” to deport a 65 year old who's been in the US since he was 6 months old and gets caught stealing a cell phone, but it can and does happen.
  
  

* * *

If you are not a citizen and you're charged with a crime, make sure your defense attorney knows immigration law or consults with an immigration attorney. Furthermore, make sure this happens immediately. The time to involve the immigration attorney is at the beginning of the case, not after the conviction.

This body of law is very complex, and many criminal defense attorneys do not or cannot keep up with all the changes and nuances. Too often, the defense attorney gets what he considers to be a “good deal” for the client, only to find out that ICE has picked up his client outside the courthouse. The defense lawyer calls an immigration lawyer to find out what's going on, and finds out that it would have been better for the client to actually serve 3 months in jail in exchange for a misdemeanor conviction rather than the probation before judgment “deal” he got for a felony conviction.

Though more and more defense attorneys are becoming aware of immigration consequences for their non-citizen clients, ultimately it's the alien who will do the time, and the alien who risks deportation.

* * *

Generally, a criminal immigration attorney will start with looking at the alien's status. Next, the attorney will look at the charging document that shows what the alien is being charged with. Then the statutes are looked up and analyzed, to see if they fall into any of the “deportation” categories. These include aggravated felonies, crimes involving moral turpitude, drug offenses, firearm offenses, and others. If it does, then that tells what grounds the government has to remove (deport) the alien. Sometimes all of the crimes are “deportable” offenses; sometimes only some of them are.

Next, the attorney will look to see if there are any waivers or other forms of relief available. Waivers are like “get out of jail free” cards, but they can be hard to get. They are also very technical. You might have the most sympathetic case in the world, but if you do not meet the statutory requirements, you won't get it.

If the alien hasn't been convicted yet, the immigration attorney can advise the defense attorney on how to fashion a plea agreement that would protect the alien's immigration status. This is a complex legal analysis that the attorney must complete after a thorough review of the facts and law of that particular case. The attorney should never advise based on similar cases. Each case must be treated as unique, because there might be some small technical difference that changes the whole result.

If no waivers are available, and the alien must be removed, and there is no relief, then this needs to be communicated to the defense attorney so that the alien can make the best out of a bad situation.

Consult an attorney

The HMA Law Firm
1039 Sterling Road
Suite 204
Herndon VA 20170
703.964.0245
301.637.4019
[email protected]

1 - Ocegueda-Nunez v. Holder (9th Cir. 2/10/2010).