Ten Frequently Asked Client Questions Regarding Criminal Cases and Immigration

The intersection of immigration law and criminal law can arise within the United States in many different scenarios such as the following: (1) when a foreign national is either visiting or working in the US and is arrested while here; when the foreign national is applying for a Green Card while in the United States and is arrested prior to or during the Adjustment of Status process; or when someone has to deal with explaining their criminal history during the “good moral character” analysis of the citizenship process. This article by prominent Criminal Defense attorney, Elena Fast, answers some of the most frequently asked questions by foreign nationals trying to navigate the complicated criminal terrain in the United States. 

Being arrested and dealing with an open criminal case is stressful. Unfortunately, if you are not a United States citizen, your conviction and even your arrest alone may have adverse immigration consequences. The intersection between Criminal and Immigration Law is frequently called “Crimmigration.” Below are ten most frequently asked client “Crimmigration” questions. 

1. Will my arrest or criminal case impact my ability to stay in the United States? 

There is no definite answer to this, as it depends on many factors. However, if you’re in the United States on a visa (work, student or tourist) or on a Green Card, your right to remain here may be impacted by a criminal conviction and maybe even an arrest. Both the timing of the crime and the nature of the crime will determine whether you are deportable as a result of the criminal case. 

2. What types of criminal cases may have the worst immigration consequences?

Generally speaking, the two types of cases that can make someone deportable – (1) Crimes of Moral Turpitude and (2) Aggravated Felonies. 

Crimes of Moral Turpitude: There is no legal definition of what constitutes a Crime of Moral Turpitude. Rather, the Courts and the U.S. Department of State have explained that the most common elements of a moral turpitude crime are "fraud, larceny, and intent to harm persons or things." Some examples of New York Crimes of Moral Turpitude: 

• Larceny (NY Penal Law Article 155), 

• Fraud and Identity Theft (NY Penal Law Article 190), 

• Falsifying  Business Records (NY Penal Law Article 175)

• Forgery and Possession of Forged Instruments (NY Penal Law Article 170).

Domestic Violence (spousal abuse) as well as Aggravated DWI offenses can also be Crimes of Moral Turpitude. 

Aggravated Felonies: Immigration and Nationality Act includes a full list of crimes that are considered Aggravated Felonies under U.S. Immigration Law.  Some examples of Aggravated Felonies are:

• Murder (NY Penal Law Article 125)

• Rape (NY Penal Law Article 130)

• Drug Trafficking (NY Penal Law Article 220)

• Tax Fraud involving over $10,000 (NY Penal Law Article 190)

• Any Theft or Violent Crime with a sentence of at least one year.

Importantly, for immigration purposes, it doesn’t matter if you serve less than a year or receive a suspended sentence. It is the charge that you plead guilty to that controls, not the sentence served. 

Timing of the Crimes: An individual may be placed into deportation proceedings for committing a Crime of Moral Turpitude (“CMT”) if (1) the crime happens within five (5) years of admission into the United States or if there are two or more convictions for Crimes of Moral Turpitude regardless of when they happen. However, if the two crimes of moral turpitude are part of the same criminal scheme or transaction, they may count as one conviction, rather than two. 

Aggravated felonies do not have to be within the first five years of admission into the United States. Rather, they can trigger deportation proceedings at any time. Even if they happened well after the first five years of admission. 

3. Are there any exceptions for smaller-level crimes? 

Yes, there is a statutory exception for smaller-level crimes that can be excluded from being counted as a Crime of Moral Turpitude. The requirements for getting a “petty crime” exception are:

• Penalty for a crime can never exceed one year, and

• The individual never served more than 6 months in jail

As the term can never exceed one year, usually these petty crimes are misdemeanors under New York Law. Common examples of New York “petty crimes” are – shoplifting, simple assault, and theft of services. However, the two requirements above must be met. 

4. What is my Criminal Attorney’s Responsibility in Vetting the Immigration Consequences of My Plea?

Very few criminal attorneys happen to be immigration experts. Therefore, it is absolutely essential that you or your criminal attorney consults an immigration attorney for guidance regarding your plea. Under a 2009 Supreme Court Case, Padilla v. Kentucky, criminal attorneys must accurately advise clients about the immigration consequences of accepting a guilty plea. Specifically, the Court in Padilla, held that it was an ineffective assistance of counsel when the attorney failed to advise the client of the possibility of deportation as a result of a plea on a drug case.  

Once again, criminal defense attorneys are not experts in the nuances of immigration law. Your criminal attorney has an obligation to advise you that you may have adverse immigration consequences – such as deportation or issues with naturalization. However, the likelihood of these possibilities is best left for a discussion with an experienced immigration attorney. I have done numerous cases with Ms. Khunkhun that have required her insights into immigration consequences as a result of certain criminal pleas. All clients have been absolutely ecstatic working with such an experienced and caring immigration counsel. 

5. What is the safest plea from an immigration standpoint to resolve my criminal case? 

In order of best to worst, these are the preferred case resolutions:

• Dismissal 

• Adjournment in contemplation of dismissal

• Violation

• Reckless Misdemeanor (not CMT) 

• Intentional Misdemeanor (not CMT)

• Reckless Misdemeanor (CMT)

• Intentional Misdemeanor (CMT)

• Aggravated Felony as defined by immigration law 

6. Can my Criminal Attorney Negotiate a Better, Immigration-Friendly Plea on my Case with the Prosecutor? 

Yes, in some situations your attorney is able to negotiate a better, immigration-friendly plea than what was initially offered by the prosecutor. However, for that to happen you have to think about your case through the eyes of the prosecutor. The initial offer that the prosecutor extends is the offer that they think is fair and reasonable in light of the allegations and someone’s criminal history. It is a big thing to ask the prosecutor to go back to their supervisor and ask for a better plea offer. It doesn’t just happen. The prosecutor has to have ammunition in order to justify giving someone a better plea offer, than one that they thought was reasonable and appropriate.

That ammunition frequently comes from either a call or a letter from an immigration attorney. An immigration attorney is able to explain the difference in giving someone a plea to “reckless assault” instead of “intentional assault.” While both charges are class “A” misdemeanors, one may count as a crime of moral turpitude and potentially trigger deportation, while the other may not. It is therefore very important to have an immigration attorney involved in conversations regarding any potential resolution of your case. 

7. My immigration officer has requested copies of my Criminal Court paperwork and police reports. Do I have an obligation to give these documents over to them?

Before you turn anything over, you need to consult your immigration attorney for guidance. Generally speaking, the information contained in the police reports or the criminal court complaint doesn’t show you in the best light. There may be ways your immigration attorney can tactfully limit what is being asked for and turned over to the immigration authorities. Sometimes providing a certificate of disposition, which shows the ultimate resolution of the case may be enough. 

8. My employer sponsored my H-1B (or another type of work visa) and the employer’s attorney did all of my immigration paperwork. Now that I have been arrested, what do I do if I don’t want to tell my employer?

This is a very common question. Many individuals find themselves at the crossroads of whether to tell their employer about their arrest, when the alleged conduct may be grounds for termination. Ultimately, it is the client’s decision of what to do. There may be an obligation to disclose any police contact or arrest in your employment agreement. Do not go looking that up now, if you’re trying to figure out what to do. Your best course of action would probably be to hire a separate immigration attorney, one that does not work for your employer, and figure out a plan of action. 

9. Will a judge take my immigration status and the possibility of deportation into account when determining the appropriate sentence on my case? 

Yes, if you have what’s called an open plea or an open sentence, a judge may take your immigration status into account when deciding the appropriate sentence. An open plea or an open sentence is when you plead guilty or are found guilty by a jury and the prosecutor does not make a promise of what your sentence will be. Rather, the sentence will be entirely up to the Judge. While the law in the Second (NY, CT, VT) and Third Circuit (DE, NJ, PA) is that the possibility of deportation is not punishment within itself, on a practical level the Judges take that into consideration when determining the appropriate sentence. 

10. How do I pick an attorney to represent me on my crimmigration case?

Very few criminal attorneys do immigration and very few immigration attorneys do criminal cases. As both areas of law are highly specialized, the saying “Jack of All Trades, Master of None” applies here. You should first find either an immigration or a criminal attorney that you would like to represent you on your case and then ask who they’ve worked with in the past on these types of cases. Then, schedule a consultation with the other lawyer. Once you have your dream team for both the criminal and immigration parts of your case, hire both. 

We work closely with Elena Fast, Esq., when it comes to providing comprehensive crimmigration representation for our clients. Her website is https://www.fastlawpc.com and she can be contacted at  212-729-6082.