The Importance of Fighting Your Criminal Case When You Are Not A Citizen

Any criminal conviction can cause serious immigration problems if you are not a US citizen. If you are out of status, that is undocumented or “illegal”, then it will definitely cause serious problems. (Know that under the current xenophobic administration, what will and will not work can change in an instant so be careful with any strategy or tactic. Always consult an immigration attorney in addition to your criminal attorney if you are arrested or have any criminal charge pending.)

For that reason, it is imperative that you fight to avoid or minimize any criminal conviction. Felonies or a drug, gun or domestic violence related offenses are particularly harmful and, in many cases, will bar you from any relief. You can and should avoid a criminal conviction by fighting it if there is a reasonable doubt or a valid defense to the crime. 

I discuss fighting your criminal case in many other blog posts and throughout my website.

If you can’t win your case, you need a lawyer who knows how to find an offense that is going to eliminate or minimize your exposure with immigration. That can depend a lot on what you’re charged with.

An aggravated felony is the worst of the category of criminal offenses when it comes to immigration. These are usually crimes that are punishable by 365 days or more in custody. California has recently changed the law so that all misdemeanors carry maximum sentences of 364 days, Penal Code 18.5. Being sentenced to 365 days or more can automatically render someone deportable.  An example of an aggravated felony is battery with serious bodily injury. That crime is an aggravated felony. As an alternative, a plea to simple battery is not an aggravated felony, therefore a safer plea.

Any crime of violence can result in negative immigration consequences. A crime of violence can be deportable two ways: (1) it can be an aggravated felony if the sentence is more than 1 year or (2) if the statute says that it was directed against a spouse or significant other. An example of a crime of violence would be assault with a deadly weapon. Again, a simple assault or assault with a deadly weapon without the mention of a firearm and for less than one year prison would be a safer alternative.

Possession, sale or felon in possession of a firearm are deportable. The good news is that the California statute that defines firearms is not compatible with the federal firearms statute so no general firearm statute in California is ‘deportable’. It can still be deportable as a crime of violence or aggravated felony though.

Crimes involving domestic violence, child abuse or neglect are deportable. Any crime where the subject was a minor, spouse or significant other can be used to cause negative immigration consequences. For example, child endangerment is a deportable crime of violence. A safe alternative would be a plea to any age neutral offense like battery that would carry the same punishment.

Crimes of moral turpitude can be deportable. A crime of moral turpitude is a vaguely defined term that usually involves fraud or deceit, theft or great bodily injury. An example of a crime of moral turpitude is theft.  A safer alternative would be shoplifting, as long as the plea could be to 'property intended to be taken'.

Finally, crimes involving controlled substances are deportable offenses. There is an exception for one single conviction of possession of less than 30 grams. Some California offenses include substances not listed on the Federal list of controlled substances and are thus safer pleas as long as the drug remains vague in the record of conviction. For example, a plea to possession of cocaine for sale is a bad plea. A plea to possession of an unstated controlled substance for sale is a better plea because of the non-Federal drugs on the California list of drugs.

Facing a criminal charge as a non-citizen is doubly scary you need to make sure that your lawyer understands how your criminal charges can affect your ability to stay in the country.  You definitely need two lawyers one who knows criminal law and another that knows immigration law and they need to be able to work together. If you are facing a criminal charge and worried about how it may effect your immigration status call me at 213-893-8640.

If you have a criminal conviction and want to know what to do about it see my blog post here.

To read about negotiating to avoid immigration consequences, see my blog post here.


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