What All Immigrants Should Know If They Are Charged With Any Crime

By Paschal Obinna Nwokocha,
Attorney at Law

When charged with a crime, an alien living in the United States faces several issues. First, the alien would have to deal with the criminal charges. This means going to Court and deciding on how whether for fight the charges or plead guilty. Second, and more importantly, the alien would have to deal with the possible immigration consequences of the criminal charge. In addition to the criminal punishments, the person may be deported to his or her home country. In this short article, we discuss how to an alien should deal with criminal matters. The term “alien” is used to broadly to include every person who is not a United States citizen. This includes permanent residents and even people whose spouses and children are United States citizens.

The Immigration and Naturalization Service (INS) can initiate removal/deportation proceeding against aliens who commit certain offences. This applies even to aliens who have acquired Permanent Residency status, or “green card”. It is very important, therefore, for all aliens and permanent residents to consider very well the consequences of any charges before you plead guilty to an offence. Once the person have pleaded to the criminal charge, it may be too late to go back to Court and ask the Court to reopen the case or set aside the plea. Minnesota courts have held that failure to advise an alien charged with criminal offence of the immigration consequences of pleading, is not an adequate basis to withdraw a guilty plea. It, therefore behooves all aliens to study their situation carefully, preferably consult with an immigration attorney in addition to a criminal attorney, or have a criminal lawyer who also has a good knowledge of immigration law, before pleading to any offence.

Once a criminal matter is resolved, the INS may place a hold on the person. The person will be transferred to INS custody and the person will not be released from detention until the deportation/removal proceeding is resolved.

What happens if an alien is in the Country Illegally?
Being illegal in the U.S can mean a lot of things; it can mean overstaying the visa one came in on, not being enrolled in school or failed to comply with a deportation order, etc. In either case, the person no longer has the permission to remain in the United States. If such a person is arrested for a criminal offense and the criminal proceeding terminates, the jail may transfer the person’s matter to the INS for future proceeding. This may be in the form of deportation proceeding. The INS may decide to continue holding you in jail until your immigration case is resolved.

In such situations, a knowledgeable immigration lawyer can advise you on what your option are and whether you have any chance in prevailing in the immigration proceeding.

Can the INS deport an alien though the alien has a “green card” or have U.S citizen Spouse/children?
The fact that one has a “green card”, or children born in the United States or United States citizen spouse, would not necessarily prevent the INS from initiating removal proceeding. The INS can place a hold on the person until the immigration matter is resolved. However, whether the INS initiates such proceeding depends on what you were charged with, how the charges were resolved and what the alien’s criminal and immigration history is.

There have been instances where a Permanent Resident pleads guilty to an assault or DUI charge, and after serving a couple of weeks for the charge, the INS puts the person in immigration proceeding. And there have been instances where, after pleading to an offense and serving time, the alien applies to citizenship years later. In adjudicating the citizenship application, the INS may initiate removal proceeding based on the criminal offense. Therefore, an alien has to be extremely cautious on how he or she resolves a criminal charge.

In light of 09.11.01 terrorist incidents, all aliens have to be very careful. The atmosphere is such that the government wants to remove illegal aliens or criminal aliens out of the country. The best course of action is to totally avoid committing any offence; but once an alien has been arrested or charged with an offence, the alien owes it to himself and his family to get sound advice from knowledgeable professionals. That may save the alien from the specter of deportation.