Noncitizens Facing Criminal Charges: Avoiding Unforeseen Consequences

August 18, 2020, Travis Helm, Esq., The Law Office of Travis Helm, LLC

Although we often think of criminal cases as resolving in a courtroom and with a jury making the judgment of guilt, less than three percent of state and federal criminal cases actually go to trial. The remaining 97 percent of cases were resolved through plea deals. A plea bargain is an arrangement between prosecutor and defendant where the defendant pleads guilty to a lessor charge in exchange for a more lenient sentence or an agreement to drop other charges. These common plea deals however, may have dire consequences for noncitizen defendants. Convictions for marijuana or shoplifting can result in a noncitizen becoming deportable and/or inadmissible.

Certain criminal convictions will lead directly to deportation, but other convictions will only make a noncitizen inadmissible. Being inadmissible means that if the noncitizen departs the country, they will not be allowed to reenter the United States. Being inadmissible also prevents a noncitizen from changing from one immigrant status to another while here in the United States. A student visa holder who is convicted of an offense triggering inadmissibility could find a visit home for holiday permanently disrupts their educational and career goals. Likewise, a visa holder whose conviction has triggered inadmissibility is not eligible to adjust to lawful permanent status through marriage to a U.S. citizen.

Immigration law is probably the most complex area of United States law, more so even than income tax law. In 2010, the Supreme Court of the United States stated in Padilla v. Kentucky, 559 U.S. 356 (2010), that the severity of deportation underscores how critical it is for defense counsel to inform noncitizens of the immigration consequences which may result from accepting a plea bargain. As the Court noted in Padilla, deportation is a particularly severe penalty and preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence. For this reason, courts have placed an obligation on criminal defense attorneys to provide reasoned and thoughtful advice to noncitizen criminal defendants considering a plea bargain.

It is unlikely that an attorney who specializes in criminal defense will have the knowledge and experience required to provide that reasoned and thoughtful immigration-related advice that is critical to the noncitizen’s decision to accept a plea deal or take their case to trial. As the Wyoming Supreme Court noted: “Better to gamble on an acquittal at trial than the assured conviction and deportation resulting from a guilty plea.” Not all plea bargains are bad for noncitizens, indeed plea bargains can often serve the interests of the prosecutor and the noncitizen defendant, but they must be well informed of the immigration consequences. Prosecutors can avoid the effort and uncertainty of taking the case to trial and the noncitizen can attain deals that avoid immigration consequences such as deportation and inadmissibility.

Because criminal defense attorneys are often not informed and experienced in the complexities of immigration law, it is wise to involve an immigration law expert as soon as possible. In relatively simple criminal matters our office has directly represented the noncitizen defendant in their plea negotiations resulting in immigration safe plea deals. In other instances, we have worked with the client and their criminal defense attorney to understand and negotiate the best possible plea deals or to proceed to trial. Waiting until the criminal case is over to seek advice of an immigration attorney will be too little too late. In all instances it is in the best interests of the noncitizen to seek the advice of an immigration expert to fully understand potential immigration consequences which may result from pleading to or being found guilty of criminal charges.

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