Sharing an office with a veteran Immigration attorney definitely gives me exposure to people who are facing immigration troubles because of criminal charges. We have a nice system where I handle the criminal portion and then he covers the immigration.
Because our clients are not citizens, their criminal cases require different approaches to hopefully avoid immigration consequences. I understand that most criminal defense attorneys don’t practice immigration but there are still simple basics, which attorneys and people should know regarding “Crimmigration”.
The simplest and most basic rule of crimmigration is… any form of conviction stays on your record in the eyes of immigration. EVERYTHING. The reason is because Immigration Law is Federal law and they have adopted their own rules called the Immigration Nationality Act (INA). And, the INA definition of “conviction” is harsher than you would think.
For example, an undocumented person charged with a crime in state court could be eligible for a deferred adjudication with dismissal after 6 months. Yet, this would still be a conviction under the eyes of Immigration. Deferred adjudication is a form of probation where if you stick to the conditions of your probation after a set period of time, the court will dismiss your case.
That’s a great situation for the majority of people because the case is dismissed. However, under INA a deferred adjudication can still be a conviction if the record “admits sufficient facts to warrant a finding of guilt.” This means that if the judge says “Person X, we find that you committed theft at Wal-Mart but instead of finding you guilty we will place you on deferred adjudication,” that is enough to be deemed convicted under Immigration Law.
So what does that leave us with? Honestly, an uphill battle but one that we can still be strategic about. Obviously, one should always go for the dismissal or the not guilty; however, we live in a real world and sometimes those results aren’t always available. At that point sometimes a well formulated plea agreement can really save your client from harsh immigration consequences. Maybe some pre-trial programs where you don’t admit to any facts could be a good alternative.
For example, I had a great case of a girl who was in the USA on a Dream Act Visa. She was the valedictorian of her class, tried to be cool and consumed LSD at school. Let’s just say she regretted it really bad approximately 2 hours into the trip when school nurses were around her trying to calm her down. A local county brought charges against her for possession of a controlled substance.
My client admitted to me taking LSD but claimed she didn’t know it would be that intense. The prosecutor laughed at the facts and was willing to offer her deferred adjudication if she completed drug tests and other similar conditions.
But REMEMBER: deferred adjudication is still a conviction under INA so that would ruin her immigration status. So instead, the prosecutor and I agreed to some pre-trial conditions and if she satisfied them they would dismiss the case. Luckily my client successfully completed all the conditions, the prosecutor dismissed the case, and my client was eligible to reapply for her immigration status.
My job as an Immigration and Criminal Defense attorney compels me to try to get the best outcome for my clients.
Knowing the rules of Immigration helps me to arrange deals with prosecutors that will have the least immigration consequence on my clients. I hope that by understanding that a deferred adjudication can still be a conviction, it may prompt some lawyers and clients to find alternative ways of handling a case.
If you have any questions regarding Deferred Adjudication and the consequences it may have on your immigration status, contact our Houston law firm today.