If you are an undocumented immigrant who have been arrested on criminal charges, you face two serious legal problems. First, you could be convicted of the crime and sentenced to jail or prison; and second, you could also be deported, whether you are convicted or found not guilty of the underlying criminal charge. If you are a legal resident in the U.S. and have been arrested, you are at risk of losing your immigration status (i.e. deported).
Undocumented Immigrant charged with a crime
It is highly likely that a noncitizen defendant (i.e. lawful permanent resident or LPR) or an undocumented immigrant defendant (UID) who was charged with a crime and accepted plea for a lesser sentence or no jail time, between March 31, 2010 and December 1, 2013, is at risk of removal/deportation.
So what does this Mean?
If you are a permanent resident (or green card holder) who accepted a plea deal and as a result of this plea deal you did not serve any jail time or you were offered less jail time in your criminal case, you are at risk of being deported. This is because the burden to inform the defendant of immigration consequences to his plea lies with your defense attorney. Now, however, effective December 1, 2013, the burden is shared by the Court, as required by the amendment to Rule 11 of the Federal Rules of Criminal Procedure. In Padilla v. Kentucky, the Supreme Court held that criminal a defense MUST advise their noncitizen defendant of the immigration consequence that they may face if they accept a plea agreement. A criminal defense attorney’s failure to advise the defendant concerning the risk of removal is a violation of the Sixth Amendment. That is right- as a non-U.S. citizen, YOU still have rights guaranteed to you by the U.S. Constitution.
How will the Court now protect your plea from immigration consequences based on the Padilla case?
Your criminal defense attorney MUST advise you (or consult with an immigration attorney) directly before you enter a plea, “If you are convicted, and you are not a United States citizen, you may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” But, this warning follows many other warnings of direct consequences of a plea, which means that you may not be paying much attention.
How can you ensure that you do not plead guilty to an offense that carries severe immigration consequences?
As the Supreme Court correctly pointed out in Padilla, “deportation is an integral part-indeed, sometimes the most important part- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” My best answer to this question is for you to hire a criminal attorney who is well versed in immigration law, or a criminal defense attorney who will proactively seek the advice of an immigration attorney before entering your plea.
An immigration attorney who can proactively work out a safe plea is essential, especially after this new amendment. While it appears that the new amendment protects you, it is actually to your detriment. Rather, the new amendment protects the government and the Court from a defendant’s motion to vacate the conviction.
The Benefits of Working with an Immigration Attorney
Most criminal defense attorneys do not know the immigration consequences of crimes and or convictions. An immigration attorney can assist your criminal defense attorney by doing the following:
- Review the paperwork in advance of the consultation, and brief legal research as necessary.
- Review the noncitizen’s Intake Form and ’s immigration history and criminal cases;
- Review the Chronology with the noncitizen to make sure it is accurate, and to add additional dates that are relevant to the analysis of the immigration problem and its potential solutions;
- Analyze the noncitizen’s immigration status and the immigration consequences of the criminal history at each point throughout the Chronology;
- Identify the immigration risks the noncitizen faces, and seek arguments against the adverse immigration consequences that might flow from each conviction.