If I am not a U.S. Citizen and I am Charged with a Crime, Do I Also Need an Immigration Attorney?

If you are not a U.S. citizen and you are charged with a crime, you might eventually need an immigration attorney. But, your criminal defense attorney is legally obligated to advise you of the “clear consequences” of any plea deal. Due to the dire consequences that a criminal charge may have on your immigration status, some attorneys now specialize in a field called “crimmigration” and these attorneys are experts in developing legal strategies that minimize the immigration consequences of a criminal conviction and helping clients already convicted of a crime to access certain exceptions that might be available to prevent deportation or enable the client to reenter the U.S. with a visa.

Even if your criminal defense attorney is not an expert in crimmigration, the attorney must advise you if you will be almost certainly subject to deportation or permanently ineligible to reenter the United States. If the attorney is uncertain, the attorney can consult with an immigration attorney in order to advise you on the consequences of your plea.

A recent Arizona Supreme Court case held that whether you are in the U.S. legally (for example, with a green card) or illegally, your attorney must still advise you whether a plea would render you deportable or permanently unable to reenter the United States. For example, if you were in the U.S. illegally and pled guilty to a drug crime of any kind, you are permanently ineligible to reenter the United States. Even though you are already deportable because you are not legally in the U.S., your attorney should still advise you that a guilty plea would render you permanently ineligible to reenter the U.S., unless you could obtain a waiver of ineligibility.

In many cases, there are not clear consequences to a plea deal, especially if you are in the U.S. on a non-immigrant visa, like a student visa, and are convicted of a misdemeanor, such as an assault or DUI. You are not statutorily ineligible for a visa due to these types of convictions, but a consular officer might use their discretion to deny your visa renewal. Not all attorneys have expertise in determining these types of nuanced consequences to misdemeanor criminal convictions. Therefore, if you are in the U.S. on a non-immigrant visa, you should make sure your attorney either has expertise in crimmigration or can consult with an attorney who does.

If you have consulted with your criminal defense attorney and determine that a plea deal is in your best interest, even though the plea might make you deportable, at this point you might want to hire an immigration attorney that can advocate on your behalf to potentially prevent deportation. Most criminal defense attorneys work closely with local immigration attorneys and can give you a referral to a reputable attorney in your area.

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About Tiffney Johnson

Tiffney Johnson is an immigration attorney in Tucson, Arizona. Tiffney has significant experience in the field of consular "crimmigration" (visa eligibility consequences of criminal convictions), complex citizenship issues, and visa and passport policy. She also focuses her practice on O visas for performing artists and procuring national interest waivers for self-employed professionals applying for immigrant visas. Prior to law school, she served as a consular officer with the U.S. Department of State for 15 years.