Hundreds of thousands of noncitizens convicted of criminal charges are incarcerated every year in the United States. Not only do they face the threat of incarceration, but noncitizens must also contend with the threat of deportation. Because individuals without citizenship status do not possess as many rights as citizens, they are confronted with constant worry about their immigration status being stripped away. When a noncitizen is convicted of a crime, this sentence may very well mean that they can be deported from the US.
Awareness of the potential consequences from the very beginning of a criminal case can allow individuals to make informed choices that aid in keeping them in the country. The safest way to ensure your rights are protected during this stressful time is to hire an experienced attorney with comprehensive knowledge of immigration law, in addition to familiarity with the criminal justice system in Kentucky. Check out the information presented below to understand the legal process for noncitizens facing criminal charges, then contact the office of Patrick McNally to discuss your unique case and review your options.
Criminal law is often harsh and unpredictable for noncitizens, some of the country’s most vulnerable people. Whether they are lawful permanent residents or illegal aliens, non-citizens face being arrested, charged, and convicted unlawfully as well as lawfully. As a result, they may be removed from the US, even for minor offenses. After removal, they are typically barred from returning to the country. For an individual without citizenship, being convicted in a criminal case means not only facing punishment from the crime itself but also the potential of punishment due to their status in the country.
Because the stakes are so high for noncitizens in criminal cases, the Supreme Court declared in the 2010 Padilla v. Kentucky case that noncitizens have the same right to effective counsel as citizens. This decision orders that an attorney representing a noncitizen accused of a crime is legally obligated to inform them that submitting a guilty plea can result in their forced removal from the US. Criminal attorneys have a duty to noncitizen clients to provide them with the correct information and properly advise them of potential immigration consequences of a conviction. They are also responsible for educating themselves in issues of immigration law so they can fulfill their duty to their noncitizen clients. Failure to meet these obligations is considered a violation of the Sixth Amendment.
Any criminal defense attorneys representing noncitizens must share with them the grounds for removal in immigration law, through inadmissibility or deportation. Noncitizens who have not yet been “admitted” into the US and are convicted of a crime may encounter inadmissibility when applying for a green card, visa, or entry into the US. Noncitizens who have been “admitted” into the US and are convicted of a crime may face deportation. Attorneys must adequately research how a defendant’s immigration status may impact their criminal case. Without sufficient knowledge of immigration consequences, defense attorneys will be unable to appropriately navigate such criminal cases and may end up making hasty, uninformed plea decisions. The rising criminalization of immigration means noncitizens are at risk of substantial errors when the stakes, such as forced removal and family separation, are incredibly high. Ignorance and missteps can be catastrophic.
Some crimes committed by noncitizens almost always guarantee deportation, mainly aggravated felonies. This consists of crimes of violence or theft requiring imprisonment for one year or more. Originally, this category of felony was applied to only serious offenses like drug trafficking and murder. However, crimes considered to be less serious have recently been included, such as failing to appear in court, committing tax fraud, money laundering, federal gambling, sexually abusing a minor, and bribery of a witness, among others.
Crimes of Moral Turpitude
Crimes that carry the risk of deportation of noncitizens are crimes of moral turpitude, or those deemed morally unacceptable by society. Being convicted of this type of crime within a period of five years after entering the country could mean deportation. Crimes of moral turpitude include perjury, tax evasion, and specific kinds of child abuse and fraud. Other crimes that may be grounds for deportation are those that violate any federal or state laws regarding firearms, destructive devices, or controlled substances, as well as domestic violence, violation of a protection order, threatening political figures, or treason.
Other Crimes and Consequences
Usually, the more secure of an immigrant status held by a person, the more difficult it is to force removal. However, even legal permanent residents living in the country for decades can still be removed. Noncitizens without any form of legal status may be deported for any kind of criminal conviction, even one less serious than those described above. A noncitizen holding temporary lawful status may be deported upon conviction of two misdemeanors.
In addition to deportation, other consequences are possible. Noncitizens may be barred from greater immigration status, delaying or completely preventing any future petitions of immigration, or barred from the pursuit of citizenship. Holds on immigration may also be placed on noncitizens directly after they submit a guilty plea. A knowledgeable attorney can structure a plea deal so that the possibility of removal is reduced.
Unfortunately, inexperienced criminal defense attorneys may sometimes make unfair, inaccurate assumptions about their noncitizen clients when representing them, even if they have their clients’ best interests at heart. This inexperience could significantly harm any defense strategy. A person’s appearance, such as their skin color or language abilities, can cause false assumptions about their citizenship status that affect legal counsel. An attorney experienced in noncitizen criminal cases will seek proper documentation to verify their status and construct a legal strategy with all the necessary information at hand.
Criminal defense attorneys representing noncitizens must also become familiar with the Immigration and Nationality Act (INA). The consequences of submitting a guilty plea are different for noncitizens than citizens. If a US citizen pleads guilty under their state’s First Offenders Act, their sentence will not be enforced immediately after the plea; the charges will be dismissed after they complete community service or probation requirements. However, because of the INA, any noncitizen submitting pleas or receiving probation, deferred adjudications, or any disposition considered a penalty or punishment is regarded as a conviction, even if all charges are dismissed.
If you are not a citizen of the United States, a criminal conviction can ultimately lead to your deportation, even if you have a visa or resident status. You may feel scared and confused about what you should do after an arrest, but I can provide the defense you deserve, regardless of your immigration status.
I am Patrick McNally, and as the founding partner of the Nashville-based law firm of Weatherly, McNally & Dixon, P.L.C., I have more than three decades of experience providing qualified defense counsel to people facing serious criminal charges. If you are a noncitizen, I know what is at stake for you, and I will work diligently to fight these charges as well as the threat of removal. You have the right to a highly effective defense, and I will fight for justice on your behalf.
Are you concerned about your resident status or the threat of deportation because of criminal charges? You deserve a lawyer who understands both the criminal justice system in Tennessee and Western Kentucky, as well as the immigration laws that could play a role in the outcome of your case. I can help seek alternatives that will alleviate the risk of a hearing before the US Citizenship and Immigration Services or Immigration and Customs Enforcement.
Even if you already agreed to plead guilty, it’s not too late. With my help, it may be possible to avoid deportation. There is no time to lose in securing the defense help you need during this difficult time.
I have spent my legal career defending the rights of people charged with various crimes on both the state and federal level. Whether you are here on a Visa, in the United States without permission, or have concerns about how your legal issues could affect your immigration status, I am here to help.
You can start by seeking a free initial evaluation of your case. Reach out to our office online or call 800-785-9546 or 615-200-9559 to make an appointment.