Need for immigration attorney in criminal cases

The other day I had a meeting with a lawful permanent resident who wanted to apply for naturalization. As we went over his personal history, it was revealed that he was convicted of a misdemeanor on the basis of driving while impaired. In New York, a misdemeanor is any crime that carries a potential sentence of more than 15 days but not more than 364 days. Generally, these are considered to be minor offenses such that the penalties would typically involve fines and any number of days of incarceration as mentioned. However, as innocent as it may look, a misdemeanor and any criminal offense for that matter, should not be overlooked. Note that the definition talks about “potential” sentence and not actual sentence. So even if you only stayed for one day in jail but your offense could have placed you for 30 days, then you were still convicted of a misdemeanor. This variance could have very serious implications on your immigration status as we will point out.

Very worthy of attention is the fact that regardless what the state says or defines what a crime is, federal law such as immigration classifies crimes in its own definitions. Thus, a crime could only be considered an infraction in state law but under immigration law, such crime is already a misdemeanor. This is crucial because as early as during the proceedings in state court for the offense charged, the immigrant must know what the consequences of his actions are. He must retain an immigration attorney to work with his criminal defense attorney in order to better strategize the case.

This reminds me of a case that best illustrates this point. Gary was accused by Jane of raping her. In his defense, Gary said that the sexual contact was consensual. Jane said that it was not and she communicated to him that she did not want to engage in sexual contact with him. Also, to Gary’s surprise, Jane was still a minor and thus cannot give a valid consent. The case dragged on for years and Gary, who has drained all his resources for his legal defense decided, over the objections of his legal team, that he will just plead guilty to a lesser charge. The court allowed his new plea of inappropriate touching of a minor but still a sex offense under state law. Gary would live to regret his decision for the rest of his life.

When Gary found out that he could not petition his wife because of a prior offense with a minor, he was so devastated. Under the Adam Walsh Child Protection and Safety Act, if the petitioner has a conviction of sexual offense against a minor, he cannot file a petition for his spouse unless he can prove that he will not cause harm to the beneficiary. Gary realized that he should have referred his case to an immigration attorney before he entered his plea. Worse, the denial of his spousal petition cannot be reviewed.

So make sure that if you are an immigrant and that you find yourself entangled with a criminal charge, make sure you ask an immigration attorney in order that you will be guided on what plea to enter with the goal of not affecting your immigration status and future immigration benefits.