If a non-US Citizen is facing criminal charges, does he or she have a right to competent advice on the consequences of the decisions in the criminal case on the person’s immigration situation? The US Supreme Court in a recent decision answered that question with a resounding “Yes.” Criminal defense attorneys who represent non-US Citizens have a duty to advise their clients of the immigration consequences of the advice they give and the options for resolution. See Padilla v. Kentucky, 559 US ___ (2010), (decided 03/31/2010).
Although I do not practice criminal defense, my understanding is that usually the goal is to minimize consequences and costs to the client, the defendant in criminal court. The game plan is to figure out a way to resolve the case without the client spending time in jail or incurring the costs of going to trial. When there are potential immigration consequences, the strategies that accomplish those goals can be fatal for the non-US citizen.
Would it surprise you to learn that a dismissed criminal case can be a conviction under US Immigration law? It can – happens all the time. Frankly in my experience, it is rare that an immigrant takes a case to trial in criminal court. Usually they accept a plea bargain, spend no time in jail, and just go on about their business while on probation. In the end, the case is usually dismissed and the person walks away with no criminal record. In Texas, this is called a Deferred Adjudication process. Other states have similar options.
The problem is, under US Immigration law, a plea of guilty or no contest coupled with any form of punishment or penalty is a “conviction.” The law does not take into account the motivations for plea bargaining, assuming instead that an acceptance or even an failure to contest the accusation of guilt is sufficient for consequences to follow.
Criminal Defense attorneys who are willing to accept the representation of non-US citizens must be able to advise their clients of the immigration consequences of their decisions and options. If you are in the US on a visa or a lawful permanent resident and you find yourself in criminal trouble, make sure your criminal defense attorney has a relationship with an immigration lawyer or is competent to advise you of the immigration consequences of your decisions. Saving money and staying out of jail are obviously important goals, but so is avoiding deportation from the US.
Garry L. Davis
Attorney at Law