A criminal defendant who is not a citizen of the United States faces consequences that go beyond the penal sanction imposed, including possible denial of a visa or resident status, mandatory detention in an immigration facility, ineligibility for American citizenship, and even permanent deportation from the United States.
In the past 15 years, immigration law has become increasingly tough on crime, and eligibility criteria for immigration waivers have been tightened. More people are subject to deportation for more types of crimes, and fewer individuals are eligible for criminal waivers.
A non-American citizen defendant who enters a plea without understanding the immigration consequences of such a plea has not made a knowing plea. The same can be said for a defendant who chooses to go to a jury trial without having weighed the immigration consequences of a guilty verdict versus a plea to a lesser offense or sentence.
Now more than ever, it is important to be cognizant of unfavorable immigration law consequences attached to a plea, and to fashion a plea that avoids such consequences.
Knowledge of immigration law becomes strength in effective criminal defense, and ultimately enhances Mona Shah &Associates smart representation and reputation, along with the issue of good strategy.
Deportation Defense & Waivers
There are two lists of reasons that someone can be refused a visa, denied permission to enter the United States, or removed from the country.
Reasons on the first list are called grounds of inadmissibility. They apply to people who are trying to get a visa whether at a U.S. embassy or consulate, or through adjustment of status. They also apply to people who are trying to use their visa or green card to enter the United States through an airport, seaport or land border crossing. They even apply to certain people who are already inside the country if they did not enter legally.
The second list applies to people who are already inside the country. Things on the second list are called grounds of deportability. The grounds of deportability apply to people who are here legally and to people came here legally but no longer have legal status. If the government decides that there is a ground of deportability that applies to someone, they will start removal proceedings against that person in immigration court. Removal is a legal term that replaced deportation in 1996. There are some very technical legal distinctions between removal and deportation, but most of those differences are not important to understanding the removal process in general terms.
What things make someone inadmissible?
There are many grounds of inadmissibility, including certain diseases, lack of financial support or an ability to support yourself, past immigration violations, criminal convictions, misrepresentations (lies or fraud) made to the U.S. government, and others. Some can be forgiven (“waived”); others cannot. The most common grounds of inadmissibility that can be waived are misrepresentations and criminal convictions. Two examples of misrepresentations that can make you inadmissible are a lie that you told on a visa application or using someone else’s visa or greencard to enter the country. You can only qualify for a waiver of a misrepresentation if you have a parent, spouse or child who is either a U.S. citizen or lawful permanent resident. To actually get the waiver, you need to show that those family members would suffer extreme hardship if you were not given your visa or allowed to enter the country legally.
What criminal convictions make someone inadmissible?
There are many different kinds of criminal convictions that can lead to inadmissibility. Violent crimes and drug crimes make it very difficult or impossible to get a visa. Theft and fraud crimes are also very serious and may make you inadmissible. It is important to realize that serving your criminal sentence and completing probation does NOT make a difference in how the conviction affects your immigration status. Sometimes admitting criminal activity can make you inadmissible, even if you were never arrested or charged with a crime. If you are facing criminal charges or have a criminal conviction it is important to consult with an experienced attorney versed in both criminal defense and immigration issues.
What can you do if the government says you are inadmissible?
Some grounds of inadmissibility can be excused or waived by the government. Some cannot. The requirements for getting a waiver depend on the ground of inadmissibility that applies in your case.
If any of the factors mentioned above apply to your case, you should talk to an immigration attorney with experience in these types of cases BEFORE you contact U.S. immigration authorities. If you have already applied for your visa and an immigration officer thinks that you are inadmissible, he/she will tell you. He should also tell you if you are eligible for a waiver; but immigration officers are human and they make mistakes. If you have been told that you cannot be given a visa, talk to an immigration attorney about your case to see if the government made a mistake.
There are different types of waivers available for different grounds of inadmissibility. Your eligibility for a waiver will depend on varying factors such as your personal history that you have living in the United States, any family members you have here, how recently your immigration violation or conviction occurred, and others. An immigration attorney with experience on waiver cases will be able to tell you about all of the factors that will be considered in your case and will be able to put together the strongest possible application for you.