By Collin County Criminal Defense Lawyer Jeremy Rosenthal
The intersection of criminal law and immigration is an important and complex one. My office is in McKinney, Collin County, where we have strong and vibrant communities of people who are here from over-seas for work, family and opportunity. It is not uncommon at all when such a person or their loved one is arrested and accused of a crime.
A mishandled criminal action against a non-citizen can lead to drastic consequences for that person as well as their loved ones in the event of a removal from the U.S. or denial of naturalization.
For the purposes of this discussion I mean “non-citizen” to mean anything less than being a fully naturalized U.S. Citizen regardless of whether they are a permanent resident, resident alien, green-card holder, or even undocumented or an illegal alien.
Also I’m going to keep this topic very general because this is very important stuff and I don’t want anyone making a decision when it comes to immigration without consulting an attorney.
Why Immigration and Criminal Issues are So Complex
We are dealing with two layers of laws — the Federal immigration system and the State or Federal criminal system. Think of watching a high layer of clouds moving one direction and a much lower set of clouds moving a different direction. It is complicated to know what it means for the big picture.
The Federal immigration system has classifications based on the individual’s status in the United States. The Federal system also has different proceedings focused on things such as removal from the U.S. or denial of naturalization which may or may not be triggered by a criminal event. Immigration proceedings, in general, are broader than the criminal proceeding in scope.
A state court prosecution, on the other hand, is treated identically as all others regardless of the person’s immigration status. The laws, rights, and protections of State and Federal governments apply equally to anyone charged. This means people are obviously expected to follow the law regardless of national origin and at the same time people accused are entitled to due process, counsel, and to be free from search and seizure regardless of national origin too. The result of a State criminal case is not dependent at all on a person’s immigration status.
So This is Complex. What Does That Mean for My Case?
It means your criminal lawyer has to know how to advise you as to what can happen on your immigration case. The U.S. Supreme Court has even said so. I specialize in criminal law — not immigration. I’m qualified enough to give immigration advice but I tend to be overly-cautious… so I’m generally insistent on making sure my clients have actually seen an immigration specialist as well. I view it no differently than a medical problem where a person has multiple but related problems requiring doctors of different disciplines to confer and cross-check one another.
What are Some Examples of Problems Which Could Happen?
The most common problem is a non-citizen might plead guilty, no contest, or nolo contendre, to something which doesn’t seem like a big deal but triggers immigration consequences such as removal proceedings or denial of naturalization. Sometimes a person’s immigration status puts them in a “must-win” situation. This can take options such as plea bargaining off the table and can put the client in an all-or-nothing position where they can’t take advantage of a good plea offer or even a reduction of the charges.
The Bottom Line
Experienced lawyers are a must when dealing with criminal charges for someone less than a full citizen. The carpenter’s rule is particularly relevant here, “measure twice, cut once.”
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about this or any issue you should see an attorney directly.