How a Criminal Case Can Affect Your Immigration Case
(by: Margarita Silva)

The immigration consequences of a criminal case can be very harsh. The most important concept I can convey is that if your status is anything other than a United States citizen and you are a defendant facing criminal charges (felony or misdemeanor), it is critical that you seek competent immigration advice immediately certainly prior to completion of the criminal case to determine whether or not a conviction can effect your immigration case now or in the future. This advice applies whether you are an LPR, an undocumented immigrant, a refugee/asylee or hold employment authorization; in short, anyone not a citizen of the United States. At Navidad, Leal & Silva we advise our clients of the importance of the immigration consequences of any criminal conviction. This analysis is absolutely essential if you are not a U.S. citizen.

The following is an example of how the proper advice could make a difference in your immigration case. Joe and his twin brother Pedro are Legal Permanent Residents (LPRs). Although they have never committed a crime before, one day they are influenced by some friends to take part in a theft. The young men are caught and charged with theft in state court. Both are convicted of exactly the same crime. Joe is sentenced to 364 days incarceration. Pedro is sentenced to 365 days incarceration. Pedro now faces deportation; mandatory detention while his immigration case is being heard (after having served his 365 days in jail); is likely ineligible for any sort relief; a 20 year ban from returning to the U.S. without proper authorization and when Pedro is deported, he faces up to 20 years in federal prison just for setting foot on U.S. soil. Joe, who was sentenced to one day less than his brother, faces none of these issues.

How could this happen? Simple Pedro was convicted of an aggravated felony and Joe was not. The one day difference in their sentences made all the difference in their worlds. Many immigrants are generally familiar with the merciless aggravated felony rules (a crime which neither has to be a felony nor aggravated as defined by Arizona law) and the severe consequences of crimes deemed to be moral turpitude. But did you know that something as simple as one day in jail could make such a difference in identical situations, like in Joe and Pedros situation?

The answers to the obvious immigration/criminal questions - what crimes are considered aggravated felonies or crimes of moral turpitude? - are probably not obvious to the layperson, or even to many criminal defense attorneys. It is also important to emphasize that there are a host of questions that defendants may not even know to ask in the first place and the answers to these questions can make all the difference, just like in John and Pedros cases.

• Will the conviction trigger action? Deportation? Inadmissibility?
  
• Is a person who participates in a diversion program (where the criminal case will be dismissed upon completion of some agreed upon terms) a conviction for immigration purposes?
  
• What if in Pedros case, he was released early for good behavior, after serving only 300 days do the immigration consequences still apply?
  
• Is there a time frame in which the criminal conviction will not have an affect on the immigration case?
  
• Can my case be resolved so that there are no immigration consequences?

These are important issues a defendant needs to address if s/he ever hopes to remain in the U.S. or to be allowed to enter the U.S. after a departure. So I urge non-citizen defendants to protect yourself and your family from a tragic and maybe irreversible separation: seek competent immigration advice as early as possible in the criminal case to resolve whether or not your immigration status will be adversely affected.