UNDERSTANDING THE EFFECT OF A CRIMINAL ARREST AND/OR CONVICTION ON YOUR IMMIGRATION STATUS

by: Melissa E. Peat, Coastal Legal Team, P.L.

Have you been arrested or convicted of a criminal offense in the United States? Are you a citizen of the United States? If not, you may be subject to immigration consequences as a result of your criminal matter, including detention, removal (deportation), restrictions, enhanced sentence and/or inadmissibility. Your status as a lawful permanent resident (LPR), also known as a “green card” holder, does not protect you from these potential consequences.

If a judge or jury has found you guilty or you have entered a plea of guilty or no contest (nolo contendere) or you have admitted sufficient facts to warrant a finding of guilt and the judge has ordered some form of punishment, penalty or restraint on your liberty as an alien, you have been convicted for immigration purposes. Mandatory court costs are also considered a form of punishment. Therefore, any form of sentencing subjects you to potential harm to your current immigration status. There are some exceptions to this general rule, but it is vital that you contact an experienced criminal and immigration attorney to advise you of your rights.

You may be removable for offenses involving moral turpitude, aggravated felonies, offenses involving firearms, or offenses relating to controlled substances. The definition of these offenses is complex and determined on a case by case basis. There are no absolutes when it comes to the potential immigration consequences of a criminal case.

The Supreme Court has found, under Padilla v. Kentucky, 130 S.Ct. 1473 (2010), that a criminal attorney is obligated not only to advise you of the immigration consequences involved in your criminal case, but to do so correctly. Failure to do so is a violation of your Constitutional 6th Amendment right to counsel. In order to rectify the failure of an attorney to advise you as to immigration consequences, and to do so accurately, a motion for post-conviction relief, also known as ineffective assistance of counsel, must be instituted on your behalf. It is important to find an attorney who has experience in these matters and can guide you through the process.

Padilla only helps in matters after March 31, 2010. Courts have found that the burden imposed by Padilla are NOT retroactive, meaning criminal cases dealt with prior to that date cannot be readdressed with the Court based on the criminal attorney’s failure to advise you of the immigration consequences. Therefore, some aliens who have pled to previous criminal charges may find themselves subject to immigration consequences without the protection afforded by Padilla through a motion for post conviction relief. This is not to say that there is no relief available to you. An experienced immigration attorney can advise you of your options in those cases.