First and foremost, I am not an immigration law attorney. And as I like to say, I know just enough to be dangerous. Having said that, in general, for someone who is not in the USA legally and doesn’t have documentation, or, even if they do have documentation, but they’re not an American citizen, it’s important to note that there will be immigration considerations for their case if they’re charged with a crime.

There are some things that you can generally count on as being deportable offenses. For example, if it’s a felony where you’ll be imprisoned for more than a year, or if it is a crime against a person versus a crime against property, then I can pretty much know that it’s not going to be immigration-safe. If it’s something like a class three felony or similar, it’s just not going to be immigration-safe in general. The immigration laws in America are such that if you commit an aggravated felony, you can basically plan to be deported. But those specific crimes aside, here are some things to keep in mind.

First of all, if I have a client who isn’t an American citizen that is being charged with a crime, we’ll want to avoid exposure to jail and potential convictions, of course. But we also want to make sure that we’re not having anybody plead guilty to something that’s going to make them deportable or kill what’s called their “defense to removal.”

A lot of times, people aren’t necessarily in immigration proceedings, but if they do plead guilty to certain felonies later on down the road, if they’re trying to get their citizenship, those crimes can ruin that attempt. Also, if removal proceedings ever commence in the immigration courts, some things will have immigration consequences. Generally, the worse the charge is, the more likely it is to have an impact on their immigration status, and it could take away their ability to defend against the removal proceedings.

So, let’s say there’s somebody who’s been here for twenty years, who has otherwise not caused any problems, but then suddenly has a violent felony domestic violence case, such as second-degree assault or something somewhat aggravated. Not only does that now make them deportable, but if removal proceedings ever commence, they’ll lose some of their defenses. So what happens a lot of times is I get what’s called a “Crimmigration Memo.” This is where a law firm that’s more immigration-oriented but has some criminal law background will meet with the client and get their exact legal status: whether that’s Legal Permanent Resident (LPR), completely undocumented, etc.

This is all very fact-specific for the client in terms of what charges will end up being immigration-safe. So this Crimmigration Memo will say something like, “This person is here in the country; this is how we’ll want to keep them from getting deported.” Then, based on the charges, we’ll determine which charges they can and cannot plead to based on which are immigration-safe.

There are some charges that I know are absolutely immigration-safe, for example, misdemeanor criminal mischief. And there are some I know that are absolutely not immigration-safe. For instance, I had one client who was an immigrant who was accused of rape, and I knew that a rape charge was not going to be immigration-safe and that nothing the prosecution would give us in terms of an offer was going to be immigration-safe.

So it’s crucial to know which specific charges are immigration-safe and which aren’t, and these will differ based on the exact status of the defendant. For example, if you have a deferred judgment for injury to property in municipal court, rather than pleading guilty to assault and battery, it is generally immigration-safe. EXCEPT when it comes to folks who are here under DACA (Deferred Action for Childhood Arrivals).
Interestingly, if there’s any deferred judgment to a domestic violence anything, whether it’s an injury to property or murder, it seriously undermines their ability to remain here under the DACA program. So even for crimes that otherwise would likely be immigration-safe, you have to know that DACA folks are in a different situation than others. That’s why one of the first things I do in my engagement agreements is to say, “Let me know if you’re not a citizen.”

So, again, there’s no way I could just make a list of which crimes are immigration-safe and which aren’t immigration-safe because it’s so fact-specific. If someone finds themselves in a circumstance where they’re being charged with a crime, but their immigration status is in question, they should first contact me to help them with their criminal defense, but just know that I will need to get an immigration attorney involved in their case as well.

There are a lot of immigration attorneys out there, and I don’t necessarily trust all of them. So I have a list of people that I trust, and I know they’re going to do a good job for my clients.

At the end of the day, the most important thing to know is that your immigration status will absolutely complicate your criminal defense case, and it’s a special consideration that needs to be taken into account for every criminal defendant who is not a citizen.

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Frequently Asked QuestionsFAQ: Will Being Charged With a Crime Affect My Immigration Status?