Rights of Immigrants Facing Criminal Charges: A Guide to Legal Defense and Protecting Your Residency

For an immigrant in the US, getting arrested for a crime can be a scary and life-changing event. The fear of being found guilty of a crime, which is bad enough on its own, is often made worse by the fear of being deported and being separated from family. This is what crimmigration means for a lot of people: a complicated and interconnected legal system where criminal law and immigration law meet. The first and most important step in a high-stakes legal fight is to understand the unique legal issues of the situation, the types of crimes that can lead to deportation, and how to protect your rights and your residency.

The Foundation of the Law: Criminal and Immigration Consequences

For an immigrant, a criminal conviction can have two sets of severe consequences.

  • The Criminal Penalty. This is the punishment handed down by a criminal court, such as a jail or prison sentence, a fine, or probation.

  • The Immigration Consequence. This is a separate penalty that is imposed by immigration authorities, such as deportation, inadmissibility, or a denial of an application for a green card.

The most critical thing to understand is that the criminal justice system and the immigration system are two different legal systems. A criminal defense attorney who does not understand immigration law can unknowingly agree to a plea deal that seems like a good outcome in criminal court but has severe and sometimes unavoidable immigration consequences. This is why a person facing this situation needs an attorney who specializes in both criminal defense and immigration law. This type of attorney is often referred to as a "crimmigration" attorney.

Crimes That Trigger Deportation: A Detailed Look

Immigration law has very specific rules about which types of criminal convictions can lead to deportation. Some of the most common and severe are as follows.

  • Aggravated Felonies. This is a broad and misleading legal term. An "aggravated felony" is not just a serious crime like murder. It is a wide range of crimes that can include non-violent offenses like theft, fraud, and a conviction for a DUI with a prior conviction. A conviction for an aggravated felony almost always results in a person's detention by ICE and their subsequent deportation.

  • Crimes Involving Moral Turpitude (CIMT). This is a very broad and often vague legal term. A CIMT is a crime that is considered to be "base, vile, or depraved" by the legal system. Examples include theft, fraud, assault with intent to do great bodily harm, and many drug offenses. A conviction for a CIMT can also lead to deportation.

  • Drug Offenses. A conviction for a drug offense can have a severe impact on a person's immigration status. A conviction for a drug offense, even for a small amount of marijuana, can lead to deportation.

  • Domestic Violence and Firearms Offenses. Convictions for domestic violence, stalking, and certain firearms offenses can also lead to deportation.

Navigating the Criminal Justice System: A Practical Guide

A person facing criminal charges has the same constitutional rights as a citizen. Your response in the initial moments of an arrest can have a significant impact on your rights.

  • The Right to an Attorney. A person in custody has the right to an attorney. This is a non-negotiable right that is crucial for a successful defense.

  • The Right to Remain Silent. A person has the right to remain silent and not answer questions from police about their citizenship or immigration status.

  • Plea Bargains. A plea bargain that seems like a good deal in a criminal case can have severe immigration consequences. An attorney who does not understand immigration law can unknowingly agree to a plea that makes a person automatically deportable. A person should never agree to a plea bargain without first understanding its immigration impact.

  • ICE Holds and Detention. If a person is convicted of a deportable crime, ICE may place a "detainer" on them, which is a request to a jail or prison to hold the person for a period of time after they have completed their criminal sentence. This can result in a person's detention by ICE and their subsequent deportation.

Strategies for Protecting Your Residency: Your Path to a Defense

If you or a loved one are facing criminal charges, the first step is to hire an attorney who understands both criminal and immigration law. This is your most important defense.

  • Get a "Crimmigration" Attorney. An attorney who specializes in both criminal and immigration law can negotiate a plea deal that has no immigration consequences, or they can fight for a non-deportable charge.

  • Fight the Charges. A person can fight the charges in court. If a person is acquitted, there is no criminal conviction, and therefore no immigration consequence.

  • Seek Post-Conviction Relief. In some cases, a person can challenge an old conviction that has immigration consequences. This is a very complex legal process that requires a skilled attorney.

  • File for a Waiver. In some cases, a person can file for a waiver of their conviction, which can allow them to remain in the United States. A waiver is a discretionary request that a person can make to an immigration judge.

FAQ: Your Questions About Immigrants and Criminal Law Answered

Q: Does a criminal charge, not a conviction, affect my immigration status?

A: A criminal charge alone does not typically have a severe impact on a person's immigration status. However, a conviction for a crime can lead to deportation.

Q: What is the difference between a misdemeanor and a felony?

A: The distinction between a misdemeanor and a felony is a criminal law concept. However, in immigration law, a misdemeanor can have the same severe immigration consequences as a felony.

Q: Can a conviction for a crime from many years ago still lead to deportation?

A: Yes. A criminal conviction from many years ago can still be used to deport a person. There is no statute of limitations on the immigration consequences of a criminal conviction.

Q: What if I'm a victim of a crime?

A: As a victim of a crime, a person may be eligible for a U Visa or a T Visa, which can provide a path to a green card.

Q: What is the difference between a "crimmigration" attorney and a regular attorney?

A: A "crimmigration" attorney is an attorney who specializes in both criminal defense and immigration law. A regular criminal defense attorney may not have the expertise to advise a person on the immigration consequences of a criminal conviction.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. The laws and procedures governing criminal convictions, immigration consequences, and deportation are complex, constantly changing, and vary significantly by case circumstances. For personalized guidance tailored to your specific situation, it is imperative to consult with a qualified attorney who specializes in both criminal and immigration law.

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