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By Jill K. Sanders, Esq.

After your arrest, your first question for your criminal defense attorney is usually, “Will I go to jail?” For those who are non-citizens, the more important question may be, “Can I stay in the United States?” Yet even after a sentence is served, immigration consequences of criminal charges may persist.

Who Faces Immigration Consequences?

Criminal charges can adversely affect any non-citizen. Notably, it is not just the undocumented who are affected by criminal charges. To clarify, undocumented persons include those entered the country illegally, as well as those who entered legally and then stayed without proper documentation. Non-citizens include legal permanent residents (green card holders), conditional residents, as well non-residents (visa holders, visitors, and tourists).

 The factors that will influence immigration consequences include:

• The current charge and the defendant’s criminal history
• The defendant’s current immigration status
• How and when the defendant entered the country
• When the defendant was granted a green card
• Whether the defendant has a prior Order of Removal

Immigration consequences may occur in criminal cases involving:

• Crimes involving moral turpitude (CIMT)
• Aggravated felonies
• Controlled substance offenses
• Domestic violence offenses
• Firearm offenses
• Crimes against children
• Violations of an Order of Protection

The Duty of the Criminal Defense Lawyer

A criminal defense attorney should advise you on the possible direct and collateral consequences of any conviction. The direct consequences include fines, jail and/or prison, and any other punishment imposed by the sentencing judge.

Almost anything else is deemed a collateral consequence. This includes driver’s license suspension/revocation, loss of gun rights, civil forfeiture, bars to employment and housing, and many other things. It even includes civil confinement, registration as a sex offender, and loss of voting rights. The number and severity of collateral consequences have greatly expanded in recent years. And this includes immigration consequences.

For many non-citizens, immigration consequences can be more severe than direct consequences, including:

• Removal (deportation) from the United States
• Increased likelihood of apprehension by ICE and placement into removal proceedings
• Ineligibility for defenses to removal
• Inability to return to the country after removal
• Mandatory detention
• Inability to obtain citizenship for failing to meet the “good moral character” requirement
• Denial of lawful permanent resident (green card) status
• Inability to renew a green card
• Inability to travel outside the country
• Ineligibility for certain other immigration benefits

In 2010, the United States Supreme Court held that the federal Constitution requires a criminal defense attorney to provide affirmative, competent advice to a non-citizen regarding the immigration consequences of a guilty plea. Because deportation is a particularly severe penalty, preserving the client’s right to remain in the country may be more important to them than any potential jail sentence.

Immigration Consequences and Criminal Justice Reform

New York recently changed its laws to reduce the maximum sentence on any class A or unclassified misdemeanor. Specifically, the “One Day to Protect New Yorkers Act” reduced the max from one year to 364 days. Why? Immigration law placed a degree of importance on sentences which were one year or longer.

As a result, class A or unclassified misdemeanors will no longer constitute an “aggravated felony” under immigration law. Further, deportable non-citizens will not be subject to mandatory detention in some cases. And a single class A or unclassified misdemeanor will no longer render a non-citizen deportable when the offense was committed within five years of their admission to the country. Finally, a single class A or unclassified misdemeanor conviction will no longer render a non-citizen ineligible for certain defenses in immigration court.

The new laws also provide for vacating prior convictions of class A or unclassified misdemeanors in some circumstances. As such, this will allow for re-pleading and re-sentencing under the revised 364-day sentence scheme.

References:

• Sarah B. Berson, “Beyond the Sentence – Understanding Collateral Consequences,” 272 National Institute of Justice Journal 25 (2013). Available at: https://www.ncjrs.gov/pdffiles1/nij/241927.pdf (last accessed April 13, 2020).
• Jenny Roberts, “The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of ‘Sexually Violent Predators,’” 93 Minnesota Law Review 670 (2008). Available at: https://www.minnesotalawreview.org/wp-content/uploads/2012/01/Roberts_mlr.pdf (last accessed April 13, 2020).
• Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Available at: https://www.oyez.org/cases/2009/08-651 (last accessed April 13, 2020).
• Penal Law § 70.15.
• Criminal Procedure Law § 440.10.