What Should a Legal Permanent Resident Do After Being Charged with a Crime?
Question
What steps should a Legal Permanent Resident take after getting arrested?
Bullet Points
Immediately inform your defense attorney that you are not a U.S. citizen
Try to find a defense attorney familiar with the immigration ramifications of being convicted of a crime
If financially feasible, hire an immigration attorney to assist defense counsel in obtaining an outcome in the criminal case that will preserve your current and future immigration plans
If a plea deal is to be negotiated, the prosecutor should be informed of your legal status, as well as the immigration consequences you are seeking to avoid
If your case goes to trial before a judge or jury, the judge should be made aware of your legal status and attendant immigration consequences
Introduction
When a legal permanent resident (LPR) or Green Card holder is charged with a crime that person must proceed cautiously to minimize the adverse immigration consequences s/he could face in the event of a conviction. The following is a road map to help preserve one’s legal status.
Exercise One’s Right to Remain Silent
Few first-time criminal defendants -- especially teens and young adults – understand the importance of remaining silent if they are taken into police custody for questioning or placed under arrest.
Even if someone is innocent, agreeing to speak to the police can still have disastrous consequences.
Selecting a Criminal Defense Attorney
If an LPR or non-citizen defendant can afford to hire a private attorney, it would be preferable to obtain representation from a criminal defense attorney who understands the adverse immigration consequences of a conviction. Non-citizen defendants must advise their attorney of their legal status early and often.
Two Heads are Better than One: Immigration Co-Counsel
If possible, a non-citizen defendant should also obtain the services of an immigration attorney to assist both defense counsel and the prosecutor in negotiating an outcome that will result in the least amount of damage to a defendant’s legal status.
One of the most common errors defense attorneys make when representing non-citizens is assuming that a non-conviction (under Illinois law) is a non-conviction under federal immigration law. WRONG. Classic examples include: misdemeanor supervision and special forms of felony probation (e.g., 410/710 or first offender drug probation, TASC probation).
The reason why these sentences are “convictions” under federal immigration law is because a defendant is required to pled guilty in state court to the charge(s). A guilty plea, alone, satisfies the federal law’s definition of a conviction for immigration purposes.
If defense counsel objects to “partnering” with an immigration attorney, find a new attorney who will not have a problem being assisted by an immigration practitioner.
Of course, not everyone can afford to hire private counsel, let alone an immigration attorney. If one can’t afford private counsel and is arrested in Cook County, s/he may be in luck.
Several years ago, the Cook County Public Defender’s Office established a special unit to better represent its non-citizen clients. Consequently, if eligible to receive representation from the Public Defender, the individual should inform the attorney initially assigned to the case that s/he is not a U.S. Citizen.
Educating the Judge
Sometimes one’s best laid plans don’t pan out. One LPR defendant was set to take a plea agreement negotiated with input from his immigration attorney but the victim insisted the case go to trial. The case was tried before a judge, who was aware of the defendant’s immigration status.
The defendant was ultimately found guilty of a felony crime of violence but benefited from the fact the judge was willing to consider the potential immigration ramifications in determining the sentence.
The jail time and the length of probation to which the defendant was sentenced was carefully calibrated to minimize the conviction’s immigration ramifications – effectively preserving the defendant’s ability to apply for citizenship in the future.
It is doubtful, absent the immigration attorney’s input, the defendant would have received the same sentence.
The Takeaway
If the reader takes only one piece of advice from this article, it should be this:
Let’s compare the situation a non-citizen criminal defendant faces to a baseball game. Instead of there being one ball, there are two balls in play at all times.
To avoid dropping either ball, a non-citizen defendant must keep his/her eyes on both: the outcome of the criminal case and its impact on his/her legal status.
The only way to successfully keep both balls in play – i.e., securing good outcomes on both fronts -- a non-citizen must negotiate a resolution (in the criminal case) that won’t jeopardize his/her immigration plans.
This is not an impossible strategy to put into place but does require the legal skill set to avoid making any unforced errors.