Criminal Charges And Immigration

March 8, 2013

Criminal Charges and Immigration

If you are not a U.S. citizen, there are several things you should keep in mind if you are ever arrested or detained in the U.S.  Non-citizens include those with a green card.

Consular Official Provided to You:

First, as a non-citizen, U.S. federal law may provide you with a right to have a consular official notified at the nearest consulate for your home country.  If the official that has arrested or detained you does not offer to contact the consulate, you should request that he/she do so to obtain the aid of a consular official.  A consular official is a citizen of your home country employed by its government and is authorized to provide assistance on behalf of your home country to citizens in the U.S.  The consular official may be able to help you find legal counsel, may help with translation difficulties, and may even contact your family abroad.

Criminal Charges and Immigration Requires Special Notice:

Second, as a non-citizen, if you are arrested, your attorney must advise you of your risk of deportation if you plead guilty. As a non-citizen there are numerous reasons for which you may be deported, such as:

  • Controlled substances offenses;

  • Crimes involving moral turpitude;

  • Aggravated felonies;

  • Felonies involving firearms;

  • Domestic violence, stalking, child abuse, child abandonment, neglect;

  • Marriage fraud, polygamy;

  • Failure to register as a sex offender; and/or

  • Violation of a protective order;

A removal action against an alien may be the most immediate and significant consequence of a guilty plea (or a nolo plea).

Deportation and Pleading Guilty of a Crime:

For example, suppose you were arrested with a small amount of marijuana in your possession. You decided not to get a lawyer because the prosecutor offered you a great deal in which you can avoid serving jail-time. While you may have avoided going to jail without paying an attorney, you may be subject to deportation under federal law. You may even be subject to exclusion from admission to the U.S. if you try to return at a later time, or subject to denial of naturalization if you have a green card. This example may prevent you from being with your family in the U.S.

In 2010, the U.S. Supreme Court ruled that criminal defense lawyers must advise their clients who are non-citizens (including green card holders) that a guilty plea can result in deportation. While this creates liability for a defense attorney, it may not for a judge or prosecutor. So, the moral of the story is: Get an attorney before you accept a plea bargain, and make sure the attorney is versed in immigration law.

    If you have accepted a guilty plea without an attorney present, you may be able to vacate the plea in order to avoid deportation.  However, to do so, you should first contact a because this process can be complex.  Once the plea is vacated, you should then ask the Immigration Court to stop the deportation. An expungement will not work to avoid deportation, as you are usually required to disclose them on immigration forms.

So, if you are a non-U.S. citizen, remember two things if you are detained or arrested. First, request to speak with a consular officer and do not agree to a plea bargain without first contacting an experienced Tulsa Immigration attorney who handles criminal charges and immigration in Tulsa.