Chris Jan. 24, 2018

In criminal law we deal with direct consequences and collateral consequences. A direct consequence is a conviction and sentence for a crime. A collateral consequence is an effect that flows indirectly from and in addition to a sentence or, sometimes with immigration issues, even without a conviction and sentence. Examples of collateral consequences include a driver's license suspension for a reckless driving conviction and the disqualification from possessing firearms for felony convictions. But back to immigration. 

Non-citizens--whether permanent residents, visa-holders or undocumented immigrants--face potential immigration consequences when charged with crimes. Visas and green cards may be revoked or not extended. Individuals may be deported or denied re-entry (there may not be a proceeding for the latter, just a literal denial of re-entry if one travels outside the US and tries to return). The effective assistance of counsel. required by the Constitution, requires that we attorneys inform clients of potential immigration consequences to clients. Courts must also canvass on immigration consequenecs during plea colloquies. 

Lukasz Niec is currently facing deportation for past criminal charges. Mr. Niec is a Polish immigrant and becoming a cause celebre for the arbitrariness and unfairness of immigration law. He came to the United States with his parents when he was five, settled in Michigan and became a doctor. He is a lawful permanent resident ("Green card holder"). Approximately twenty-six years ago, when he was still a teenager, Mr. Niec picked up criminal charges for two misdemeanors: destruction of property (likely equivalent to criminal mischief in Connecticut) and receiving stolen property (larceny in CT). The news reports state that he was convicted of the first but pled under a program that later led to the expungement of the second

Criminal convictions do not automatically trigger deportation. Federal immigration law has numerous grounds for deportation. One is an aggravated felony. Another is two or more misdemeanors or felonies that are considered "crimes of moral turpitude." Statute and immigration court decisions have established what those crimes (most are state law) are. ICE (Immigration and Customs Enforcement), which enforces immigration law, also has discretion in prioritizing and bringing deportation actions. It is important to note that even if you are not deportable, you still could have your visa or green card extension denied. 

Minimizing immigration consequences is not as simple as avoiding a criminal conviction. Since state laws differ, whether there is a conviction for immigration purposes is decided by immigration courts. For instance, many criminal cases are resolved by diversionary programs which if successfully completed allow the charges to be dismissed without a conviction. There are some programs, in this state and others, wherein one must plead guilty to enter the program, with the plea being vacated upon completion. Even if the program is completed, the admission may still constitute a conviction under immigration law. Another common way to resolve criminal charges is to plead to a lesser, substiuted charge. Some criminal charges can be subbed down to infractions, such as a motor vehicle charge, creating a public disturbance, trespassing or possession of less than 1/2 ounc of marijuana. Pleading to a substituted charge could still be considered a conviction of a deportable offense. 

Then there's the issue of expungement. Most states have a process for criminal convictions to be expunged. In Connecticut it is the pardon process. While this process could lead to a state criminal record being erased, ICE and immigration courts can still consider the conviction to exist. 

When faced with a criminal charge, you really should hire a criminal defense attorney. If you are not a United States citizen, you really need to tell your attorney that up front so he or she could plan accordingly, which may also require retaining or consulting with an attorney who is experienced in criminal immigration and deportation issues.