As I sit here working on my most recent crimmigration consultation case, I realize more and more the need for non-citizens to have trusted advice and immigration counsel during their criminal cases. I have mentioned on many occasions that the time to hire an immigration attorney is not after you or your loved one is convicted of a crime, but before. The case I am working on now is but another example.
A loved one of my client called to ask, what are the immigration consequences of this criminal prosecution? She said that his criminal defense attorney had someone in his office who did immigration and could assist, but she chose to call us for a crimmigration consultation because she read my blog and knew I could help. She was right. This nice young lady had received all kinds of incorrect advice regarding the criminal prosecution of her loved one.
She was told that pre-trial diversion or pre-trial intervention was the way to avoid deportation. She was told that drug court was a terrible idea because her loved one would be labeled an addict and deported for that. Thankfully she was savvy enough to research and find out that it didnt matter if her loved one received a withhold of adjudication or an adjudication of guilt, both are considered convictions for immigration purposes.
By the time I was brought into the case, we were up against a deadline; we had to decide to take the pre-trial intervention agreement or fight the case. As I always say, a fantastic plea deal for a U.S. citizen may still ensure deportation for a non-citizen. This case was no different.
This client was charged with possession of a controlled substance, which was unfortunately for him, not less than 30 grams of cannabis. Therefore, a conviction for this offense (adjudication of guilt or withhold of adjudication), no matter the sentence, will subject him to detention by U.S. Immigration and Customs Enforcement (ICE), he will not be eligible for bond and he will be subject to removal from the United States under INA (Immigration and Nationality Act) Section 237(a)(2)(B)(I) (conviction for a controlled substance offense). This conviction would also make him ineligible for various forms of immigration benefits and relief, such as re-adjustment of status, cancellation of removal and others.
In addition, even if he was not detained by U.S. Immigration and Customs Enforcement immediately after a conviction, if he departs the United States, because of this conviction, he will be barred from returning in almost any immigration status as he will be inadmissible under INA 212(a)(2)(A)(I)(II) (conviction for, or admission to a controlled substance offense). There is no waiver available for this ground of inadmissibility, and this will also prevent him from re-adjusting his status as a form of relief from removal.
It is important to note that this ground of inadmissibility does not require a conviction, rather, it just requires an admission to the crime. The contemplated pre-trial intervention agreement requires that he confess to the crime in order to be accepted into the program. An oral or written admission that he committed this crime could be used to prevent his entry into the United States or bar his application for re-adjustment of status.
I had to break the bad news to the client and his family, this pretrial intervention program was almost as bad as a conviction, but a conviction was still worse as it would almost guarantee deportation.
Despite the bad news, we were able to come up with a plan of action. Since the conviction was the worst case scenario and avoiding it at all costs was the goal, the pre-trial intervention was the best choice. The best advice I could give to my clients during this consult was, do not leave the U.S. for any reason after you enter this agreement because they can use your confession against you to keep you from coming back into the U.S. Also, do not apply for citizenship until after five years have passed and you have a clean five-year window with not arrests or convictions.
Even though my advice often times cannot delete the negative immigration consequences that come with all criminal arrests, my goal is often to mitigate them as much as possible and give my clients a clear path to avoid problems with immigration in the future given their specific cases.
John Gihon is a Florida Bar Board Certified expert in Immigration and Nationality Law and a Crimmigration Consultant. You can contact John If you need an Orlando Immigration Attorney or need a crimmigration consultation, no matter where you live in the world. http://www.floridacrimmigration.com
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