Bar Bulletin

September, 2004

 Bar Bulletin Focus

Immigration Law    

Only a Misdemeanor?
~For non-US citizens facing criminal charges, the stakes are often much higher~

By Marvin J. Muller, III

If you ask 10 attorneys to name the fundamental differences between U.S. citizenship and Lawful Permanent Residency, it is unlikely that more than half will be able to tell you. In addition to the fact that our current immigration laws are enormously complex, immigration law, like tax law or intellectual property law, is its own distinct practice with which most attorneys are not generally familiar. This is particularly true with regard to the interplay between criminal and immigration law and the consequences of criminal conduct on immigration status.

It is extremely important for criminal attorneys representing non-citizens to become familiar with the immigration consequences of plea agreements. This is especially the case with misdemeanor offenses, for which most attorneys have a tendency to disregard the extreme consequences of a finding of guilt because the punishment imposed at the state court level is usually minimal. Many clients explain their conviction by stating, “Well, my previous attorney said it was nothing to worry about because it was only a misdemeanor, and the judge even told me it shouldn’t affect my immigration papers at all.” These same individuals are completely shocked when the immigration authorities send them a formal Notice to Appear for Removal Proceedings on account of a mere “misdemeanor” at the state level. This confusion leaves many people feeling helpless and jaded.

Non-citizens must walk a much finer line with regard to criminal offenses. This is not to say that the District and Circuit Court judges who adjudicate criminal cases are biased – rather, it is because our federal immigration agencies are waiting in the background to have their turn. After a non-citizen is convicted of a crime, it is only a matter of time before the Bureau of Citizenship & Immigration Services (BCIS) and/or the Bureau of Immigration & Customs Enforcement (BICE) make a determination of whether the crime constitutes a “removable” offense or a ground of “inadmissibility.” What does this mean?

Take for example the situation in which two college students – one a U.S. citizen and the other a student visa holder – are caught stealing snacks from a local convenience store. If the citizen student pleads guilty to the misdemeanor charge of Theft Under $300, he will likely get a slap on the wrist and be required to pay a small fine and/or complete a few days of community service. The misdemeanor conviction can later be expunged from the citizen student’s record with no further consequence. The other student who is in the U.S. on a student visa will get the same treatment in state court but will also be subject to additional immigration consequences thereafter. These consequences may not be immediate as immigration authorities are notoriously backlogged, but eventually the student visa holder will either be considered “removable” from the United States or, upon subsequent reentry into the U.S., he will be categorized as “inadmissible” pursuant to § 212(a)(2)(A)(i)(I) of the Immigration & Nationality Act for being convicted of a “crime involving moral turpitude.” While the non-citizen student can also petition to have his records expunged, doing so will not limit the government’s ability to hold him accountable for a previous admission of guilt.

Should non-citizens be held to a higher standard? Perhaps. Should a misdemeanor theft result in forced removal from the U.S. and a permanent ban from returning? Maybe not. Bottom line, effective representation in a criminal matter for a non-citizen client must include a review of the potential unintended immigration consequences of a guilty plea. At the very least, criminal attorneys representing non-citizen clients should contact an immigration attorney with the requisite knowledge in order to determine whether the issue merits further study.

Fellow immigration practitioners will surely note that non-citizens who find themselves in these types of predicaments may have other options, such as seeking a Waiver of Inadmissibility or arguing the application of the “petty offense” exception. Admittedly, these options are available at times. They are, however, increasingly difficult to win, as they are within the discretion of the immigration officers charged with the same responsibility of removing the non-citizen from the U.S. Experience reveals that immigration officers making these decisions often wonder less about the injustice of punishment in excess of the crime and wonder more about why a second chance should be given when there are so many other immigrants knocking on the door and waiting to gain access to our country’s economic privileges.


Marvin J. Muller, III, is an associate of the Law Office of David Goren, a practice concentrated on Immigration Law in Silver Spring, Maryland.

 

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