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
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
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.