What Do I Do? I Have a Green Card or Visa, and Have Just Been Charged With a Criminal Offense?

Contents

1. Introduction
2. Will A Criminal Charge Affect My Immigration Status?
3. How Do Immigration Officials Find Out About the Charge?
4. Will I Get Deported?
5. Does It Matter If It’s a Misdemeanor or Felony?
6. Other Potential Impacts
7. What Do I Do?
8. How Can My Immigration Lawyer Help Me?
9. Cancellation of Removal for Lawful Permanent Residents
10. Can I Appeal My Removal Order?

Introduction

Sometimes, it is in human nature to make mistakes, or make decisions that we later regret in life. For non-US citizens, it probably took a lot of time, money, and effort to finally obtain lawful US residency through an immigrant visa, or otherwise, become a green card holder. However, all of your hard work in obtaining that visa might go down the drain the moment you decide to commit a crime or violate US law.

Green card holders may find themselves in this situation both intentionally or unintentionally, meaning sometimes an immigrant might be committing a criminal offense without having the intention or realization of the violation. Depending on the offense, certain acts can even lead to the green card getting revoked, or worse, the immigrant being deported from the country.

Remember, having a green card does NOT mean you are a US citizen! Failing to abide by the law may jeopardize your overall path to citizenship.

Will A Criminal Charge Affect My Immigration Status?

Possibly. Lawful permanent residents (“LPRs”) are required to renew their green card every 10 years. Green cards are essential for non-citizens to work in the United States and return from international travel without complications.

It is quite possible that having a criminal charge on your record may affect your application to renew your green card–depending on the charge and the status of potential prosecution, it could delay your renewal or even eliminate your eligibility to apply for US citizenship.

Before submitting your green card renewal application, speak with an immigration attorney about the possible consequences of your criminal charge.

How Do Immigration Officials Find Out About the Charge?

If you have anything on your criminal record, it is best to be completely honest and upfront about it rather than to hide it because immigration officials will find out. Nearly all immigration application forms ask about your criminal history.

For instance, if you are applying to renew your green card and submit a Form I-90, you are required to pay fees for both the application and for biometrics. Biometrics is how USCIS collects personal data for every applicant, which is usually conducted by taking fingerprints and a photo ID.

Once the agency collects this information, they send it over to the Federal Bureau of Investigation which runs the information against multiple databases, and cross-checks for any known criminal or immigration violations. This process is often used by the government to find offenses serious enough to place the non-citizen into removal proceedings.

Essentially all US immigrant and nonimmigrant visa applications ask if you have ever been arrested or convicted of a crime. Even if you have been arrested and the charges were dropped or there was no conviction, you still have to answer yes–but don’t worry, you will also have the opportunity to provide additional details about the situation and what resulted from the arrest.

In the realm of immigration law, many non-citizens become confused about criminal terminology and whether one act leads to another. Therefore, it is important to keep the following in mind:

• An arrest is not the same as being charged with a crime: An arrest occurs when a suspect is taken into legal custody based on probable cause in relation to a crime. At this stage, the police must read your Miranda rights to you. Usually further questioning is involved. Within the arrest stage, the police may make the decision to bring formal charges against you, which ignites the criminal proceeding where you have turned from suspect to defendant. Or, the police may decide to release you without any charges, usually due to insufficient evidence.
• A criminal charge is not the same as a criminal conviction: If you have not been charged with a crime, then you cannot be convicted. If you were originally charged but charges have been dropped, then you cannot be convicted. Even if you have gone through your entire criminal trial and were acquitted or otherwise received a not guilty verdict, you have not been convicted of a crime. For immigration purposes, a conviction occurs if you have formally admitted guilt in any of the records when facing a criminal charge. This means that once you plead guilty, nolo contendere, or confess to a crime or admit sufficient facts to warrant a finding of guilt before a court–regardless of whether misdemeanor or felony–AND the judge has ordered a form of punishment or penalty, you are found to have a conviction.

The key takeaway here is, if you are not a US citizen and you have any criminal history–arrests, charges, convictions, and so forth–be honest and upfront about it in any immigration application. Do not attempt to lie because it is likely that the agency will catch you.

Furthermore, depending on the circumstances, lying may result in a criminal charge of fraud or misrepresentation of a material fact and may ultimately deem you ineligible for basically any US immigration benefit.

Will I Get Deported?

Not all crimes will render a green card holder deportable. The Immigration and Nationality Act has outlined specific criminal offenses that make LPRs subject to removal proceedings. In general, the following offenses will put you at high-risk for deportation:

– Conviction of a crime involving moral turpitude committed within 5 years (or 10 years in the case of an LPR) after the date of admission;
– Conviction of a crime for which a sentence of 1 or more year of incarceration may be imposed;
– 2 or more convictions of crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct;
– Conviction of an aggravated felony any time after admission to the US;
– Human trafficking crime;
– Drug-related crime;
– Domestic violence offense;
– Firearms offense; and
– Fraud-related offense

If you have been charged with any of the above-mentioned offenses, speak with an experienced immigration attorney as soon as possible to discuss your legal strategy.

Does It Matter If It’s a Misdemeanor or Felony?

When it comes to immigration law, there is no distinction between misdemeanor or felony offenses. When determining whether a criminal charge will affect your immigration status, the rule of thumb is to look at the seriousness of the crime and determine if it falls under any of the previously-mentioned offenses that trigger a ground of deportability.

For example, misdemeanor offenses with an intent to steal or defraud as an element (e.g., theft, forgery) can be classified as crimes involving moral turpitude under immigration law, and consequently, may initiate removal proceedings.

You may have noticed that some criminal deportability grounds are specific, while others group offenses into broad categories (e.g., drug-related crimes, illegal firearms offense).

If you have been charged with an offense that falls into one of the blanket categories subject to grounds of deportation, you will read later in this article how blanket classifications might allow for stronger defense tactics.

Other Potential Impacts

When committing a criminal offense, not only are you putting your US immigration status on the line, but you might also be putting your family’s status in jeopardy. For some green card holders, such as H-1B or certain EB-preference visa holders, the beneficiary might have had qualifying family members apply as derivatives from his or her visa application.

Should the beneficiary commit a criminal act or otherwise violate immigration laws, not only is the beneficiary’s visa status at risk, but also all of the derivatives’ statuses may be negatively impacted.

What Do I Do?

First things first, as soon as a formal charge has been brought against you, you have the right to obtain counsel. Whether obtaining a private criminal attorney or having assigned a public defender, you should absolutely inform counsel that you are not a US citizen.

Non-citizens are not afforded all of the same rights and privileges granted by the US Constitution; however, for purposes of adverse judicial proceedings in the criminal context, the main reason to inform your attorney of your noncitizenship is that the process and outcome of your case may affect your immigrant status and possibly any future immigration benefit.

Upon informing your criminal attorney, you should discuss obtaining an immigration lawyer to assist with your case. Not every attorney is well-informed about immigration law and whether certain legal decisions will affect a non-citizen’s legal status.

In fact, it is common for some criminal attorneys to have no knowledge at all about immigration consequences when it comes to criminal defense strategy.

By having both a criminal defense and immigration attorney handling your case, you are covering all grounds to protect yourself and shield your legal status to remain lawfully in the United States.

How Can My Immigration Lawyer Help Me?

By retaining both an immigration attorney and a criminal defense attorney to work on your case, your skilled counsel will be able to work alongside one another to obtain your best outcome. Your immigration lawyer will be able to inform your criminal defense attorney of any possible immigration consequences that may arise, and how to venture around that result.

Together, your attorneys can assess your best case strategy in both the criminal and immigration context: your attorneys will want to plea bargain or negotiate with the prosecutor’s office to either lessen the criminal charge or drop the criminal offense.

As previously mentioned, if convicted, crimes with a higher degree of severity or seriousness involved are likely going to lead to removal proceedings. By having your experienced counsel bargain with the prosecutor to lessen the offense, the crime can fall out of the scope of deportable offenses.

Another strategy is to get your criminal charges dropped, which takes a lot of skill and knowledge of the law to be successful. In order to do so, your attorneys must present a persuasive legal argument to mount a strong defense. Remember, no conviction, no grounds for deportation!

One important strategy is to negotiate a lesser sentence of jail time in order to avoid the risk of removal. Conviction of a crime where a sentence of 1 year or more of incarceration may be imposed is a ground to initiate deportation proceedings.

This tactic may be difficult to achieve and is very fact-dependent on your case and criminal offense; however, some prosecutors are understanding of the negative immigration consequences and may work with your counsel to either avoid jail time or obtain the shortest length of incarceration so that you are not subject to removal.

Lastly, if the facts clearly show that you are guilty of the crime and removal proceedings have commenced, by applying your situation’s facts to applicable law, your immigration attorney may be able to find gray areas to argue that your crime does not fit within the grounds for deportability.

For example, many of the grounds for deportation are classified as broad criminal classifications, i.e. crimes involving drugs or firearms. Have your lawyer assess your case, research controlling precedent, and find similar cases where the suspect’s offense did not amount to deportation.

How Can My Immigration Lawyer Help Me?

By retaining both an immigration attorney and a criminal defense attorney to work on your case, your skilled counsel will be able to work alongside one another to obtain your best outcome. Your immigration lawyer will be able to inform your criminal defense attorney of any possible immigration consequences that may arise, and how to venture around that result.

Together, your attorneys can assess your best case strategy in both the criminal and immigration context: your attorneys will want to plea bargain or negotiate with the prosecutor’s office to either lessen the criminal charge or drop the criminal offense.

As previously mentioned, if convicted, crimes with a higher degree of severity or seriousness involved are likely going to lead to removal proceedings. By having your experienced counsel bargain with the prosecutor to lessen the offense, the crime can fall out of the scope of deportable offenses.

Another strategy is to get your criminal charges dropped, which takes a lot of skill and knowledge of the law to be successful. In order to do so, your attorneys must present a persuasive legal argument to mount a strong defense. Remember, no conviction, no grounds for deportation!

One important strategy is to negotiate a lesser sentence of jail time in order to avoid the risk of removal. Conviction of a crime where a sentence of 1 year or more of incarceration may be imposed is a ground to initiate deportation proceedings.

This tactic may be difficult to achieve and is very fact-dependent on your case and criminal offense; however, some prosecutors are understanding of the negative immigration consequences and may work with your counsel to either avoid jail time or obtain the shortest length of incarceration so that you are not subject to removal.

Lastly, if the facts clearly show that you are guilty of the crime and removal proceedings have commenced, by applying your situation’s facts to applicable law, your immigration attorney may be able to find gray areas to argue that your crime does not fit within the grounds for deportability.

For example, many of the grounds for deportation are classified as broad criminal classifications, i.e. crimes involving drugs or firearms. Have your lawyer assess your case, research controlling precedent, and find similar cases where the suspect’s offense did not amount to deportation.

Cancellation of Removal for Lawful Permanent Residents

If none of the above strategies are successful and your criminal offense has resulted in a conviction subject to deportation, do not lose hope and go to Plan B: Avoiding Deportation. If you are placed in removal proceedings, see if you can retain the immigration attorney that assisted in your criminal case to now represent you in immigration court.

It is very beneficial to have the same immigration attorney to represent you as counsel because he or she already knows the in’s-and-out’s of your prior criminal case which helps in presenting a knowledgeable and substantive defense to the Immigration Judge.

One common tactic immigration attorneys utilize is attempting to obtain cancellation of removal (“COR”) for their clients. COR essentially sets forth a legal argument of why you should not be forced to leave the United States.

The elements required for COR differ between whether you are a lawful permanent resident or not. According to INA §240A(a), in order to present eligibility for COR for lawful permanent residents, you must establish that:

1. You have not been convicted of an aggravated felony;
2. You have been an LPR for at least 5 years;
3. You have 7 years of continuous residence in the US since the date of admission; and
4. You have not been granted cancellation in any prior immigration proceedings.

There are several intricacies within these requirements. Discuss with your immigration attorney whether you may be eligible for this immigration benefit.

Can I Appeal My Removal Order?

Yes, should the Immigration Judge not grant you cancellation of removal or otherwise has issued you a removal order, you have 30 days to appeal the decision before the Board of Immigration Appeals.

Common arguments on appeal are whether the judge made an improper finding based on failure to consider important evidence, failed to appropriately apply controlling law, or whether there are changed circumstances in your country of origin that the BIA should take into consideration of your pending removal.

Should you choose to appeal your removal order, it is important to file a motion to “stay” in order to postpone your removal from the US while your appeal is pending with the BIA.