Defendants in less serious criminal cases will often defend themselves. If the defendant is not a citizen of the United States deciding to defend oneself is a critical mistake. Criminal convictions can often carry collateral deportation/removal consequences for the foreign defendant that were never anticipated. Criminal defense lawyers can provide valuable advice that may not prevent a conviction but may avoid deportation/removal consequences.
Do Not Take Immigration Advice from the Police
In minor criminal matters the police will often escort the defendant to a preliminary arraignment or be present at the preliminary hearing on behalf of the prosecution. The foreign defendant may not yet have spoken with or hired a lawyer. In an attempt to resolve the case during the early stages of the prosecution the foreign defendant frequently is offered a plea agreement that places the defendant on probation. The desire to avoid jail is overpowering and if this chance is offered along with assurances from the police that there will be no immigration consequences, foreign defendants may feel secure in accepting probationary plea offers. The foreign defendant needs to understand that the police or the prosecutor does not represent the foreign defendant. Moreover, the police and prosecutors often do not understand the immigration law. The foreign defendant should not accept any plea offer until he or she has spoken with their own lawyer.
Ask Specific Questions and Get Detailed Answers from Your Lawyer
Once the foreign defendant has hired a lawyer he needs to discuss the charges and the immigration consequences of those charges with the lawyer. State charges that seem minor may carry severe immigration consequences. In addition, the immigration consequences sometimes make little sense in the context of state criminal law. For example, a foreign citizen typically will not be deported for a conviction of possessing marijuana for personal use but may be deported for possession the pipe that is used to smoke the marijuana, even if the drug itself it not present. This situation is illogical to the criminal defense attorney in the context of state criminal law, but it illustrates why a foreign defendant needs to review not only the state criminal charges with the lawyer, but also the federal immigration consequences of conviction..
Protecting Yourself at Court
Once the foreign defendant feels confident that he or she is aware of any potential immigration consequences of a conviction and the case is at Court, the defendant must be sure to ask appropriate questions on-the-record. In Court, during a guilty plea for example, the foreign defendant should ask for clarification from his own lawyer as to whether or not the plea will carry any immigration consequences. If the lawyer is not willing to advise the client the he is protected from deportation, then the plea should not be entered and the case delayed. Foreign defendants should never plead guilty to offenses that result in deportation/removal from the United States. The defendant should also be sure that the Court in which they appear is a court of record, meaning that there is a court reporter who transcribes what is occurring. If there is not a court reporter or transcription service present the foreign defendant should not agree to a plea.
What to do if the ICE Man Comes
Following conviction, by plea or trial, foreign defendants may be placed on probation and permitted to return to their place of residence. If the conviction is for a deportable offense immigration officers (ICE) may not appear for days or weeks. If ICE does take the foreign defendant into custody because the conviction carries immigration consequences, the foreign defendant must contact a state defense attorney or the local public defender immediately and arrange to file a post conviction appeal. There are usually strict time periods and deadlines that must be followed in post conviction appeals and therefore time is always of the essence.
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