By Attorneys Steven J. Malm and Nancy E. Miller
The time to fight removal from the United States on criminal grounds does not begin when the government commences removal proceedings. The first line of defense comes in criminal court. Short of dismissal or acquittal, a carefully-drafted plea agreement is essential to avoid or mitigate the adverse immigration consequences that flow from a criminal conviction. Accordingly, for non-citizens, a competent criminal defense requires knowledge of U.S. immigration law.
The United States government can deny admission or deport an alien based on a criminal conviction. This is true for a non-citizen that has held a green card for many years, even decades. Only United States citizens are shielded from removal resulting from convictions. Typically, the government commences proceedings to remove a non-citizen after a criminal conviction and confinement, when the person applies for a benefit such as naturalization, or upon return from a trip abroad. The non-citizen may be caught totally unaware.
Competent criminal defense must include an inquiry into the defendant’s immigration status. However, this does not always happen – especially when the defendant is fully acculturated to American society and culture. The case proceeds as it would for a citizen but with catastrophic consequences for the alien because a criminal conviction can result in removal and a permanent bar for the alien.
Fortunately, much can be done in criminal court to insulate a non-citizen from removal in the future. For this to happen, the alien must inform the criminal defense attorney, at the start of representation, that s/he is not a citizen of the U.S. In the American criminal justice system, the vast majority of cases settle through plea agreements. Strategies and alternatives exist in negotiating with a prosecutor to devise plea agreements to avoid or mitigate immigration consequences. The rationales for the differing approaches come from what has been coined “crimmigration”—where criminal law and U.S. immigration law intersect. But it is unreasonable to expect that a criminal defense attorney, who may be expert in her field, will also be fully familiar with the United States’ labyrinthine immigration statutes and case law interpreting these statutes. Therefore, competent representation requires that they consult a knowledgeable immigration attorney to assist them in formulating a defense or a deal.
Non-citizens should be fully informed as to the immigration consequences of potential convictions or pleas. The best source of that information is an immigration attorney – not the criminal defense attorney. In fact, the non-citizen should encourage her criminal defense counsel to team with immigration counsel to achieve the best plea agreement. Ideally, the alien should be proactive and hire the immigration attorney. The criminal defense attorney will often be receptive to the idea since competent representation and zealous advocacy requires consideration of the immigration consequences of the plea.
An effective plea agreement can defeat removal at the first stage of a removal proceeding. If the government cannot prove a removal charge, the Immigration Judge can terminate the proceeding. Termination is appropriate if the conviction is not for a crime that results in a ground of inadmissibility or removability. Crimes involving dishonesty (such as theft), drugs, violence or firearms are examples of crimes that may support removal from the U.S. Though the non-citizen may have committed such a crime, the one to which he pled may not result in inadmissibility or removal. The plea agreement controls and can protect the non-citizen from negative immigration consequences.
Other times the goal of the plea agreement is to preserve eligibility for relief from removal. The relief stage is the second stage of a removal proceeding. Assuming the Immigration Court concludes that the alien is removable as a result of the conviction, the non-citizen may be able to seek relief that will allow him or her to remain in the United States notwithstanding the conviction. Relief takes various forms – each of which has its own requirements and standards of eligibility. Whether the alien is eligible for any relief and, if so, what relief, and how strong a case can be made is within the purview of the immigration lawyer. This is another reason why consultation with an immigration lawyer is essential before a plea is entered into. The plea should be constructed in such a way that allows the alien to seek some relief and be able to remain in the U.S.
Once a plea agreement is entered, it can be very difficult to undo. Drafting a plea agreement to effectively stave off or counter a removal proceeding in the future is critical. For this to happen, the non-citizen defendant must pair his criminal defense counsel with immigration counsel.