Today, I will address an issue that is somewhat unusual but seems to affect many more people than we imagine. As many of the readers know, my and our firm's specialty is employment-based and business-related immigration law. However, I am also called upon to consult and, in the course of their case, represent highly respected non-U.S. citizens with past criminal charges and even convictions. Almost universally, their involvement with the criminal justice system is a result of bad luck and/or unfortunate incidents and even a misunderstanding. Often these individuals were poorly represented and not fully made aware or cognizant of the draconian immigration consequences. I felt it was an important enough issue to write and warn my readers about.

In most immigration and visa petitions and applications, the party must reveal if he/she has been arrested or convicted. This question can have severe immigration consequences since the immigration law enacted in 1996 (IIRIRA), included virtually every crime as a ground of deportability (being removed from the U.S.) and or inadmissibility (not being allowed to enter the U.S.). To name a few, crime of violence, theft or burglary, fraud or tax evasion, commercial bribery, counterfeiting, or forgery, attempt or conspiracy to commit any of these, domestic violence, and any crime involving moral turpitude are included. For example, one DUI (driving under the influence) will not bring immigration consequences but repeated offenses will; and any drug-related offense and sex-offenses will have serious consequences.

Non-U.S. Citizens, who get arrested and/or convicted in the U.S., can suffer three kinds of problems. They may not qualify for naturalization; they may get detained and deported even after they have served their sentence; and when they travel abroad, they may not be allowed back in. Similarly, non-U.S. Citizens, who have an arrest and/or conviction record abroad, may not be able to obtain a visa at the U.S. consulate or may get refused at the port of entry, depending on the nature of the crime.

In an extreme example, a B-2 visitor, who was accused of stealing $600 and was put in immigration detention for over 6 months waiting for a trial, which eventually determined his innocence. In a similar fashion, a misunderstanding over a spousal argument can result in the arrest of a spouse and conviction for domestic violence. The arrest itself can cause severe problems for the immigration practitioner trying to represent the client.

When someone is arrested, regardless whether he committed a real crime or the whole thing was a misunderstanding, a public defender or private defense attorney not familiar with the severity of these acts on immigration may suggest that one works out a deal with the prosecutor and therefore advise the client to plead 'no contest', or plead guilty to a lesser offense to settle the case instead of fighting the Charge. Although immigration consequences are often mentioned by the defense counsel and even the judge, too often neither the criminal lawyer him/herself nor the client clearly understands how severe the consequences are and how likely they will follow.

From immigration's perspective, an "arrest record" alone can establish the person's bad moral character (depending on what was written in the police report.) and lead to deportability. Pleading no contest and working out a deal is considered the same as a guilty conviction. Therefore, whereas an immigration lawyer would advise the client to fight for innocence or to at least negotiate a deal that will minimize immigration consequences, a criminal lawyer, unfamiliar with immigration laws, may opt out for a settlement that has greater immigration consequences. For example, pleading guilty or no contest to any felony that could result in a sentence of one year or more is a ground of deportability even if no sentence was actually imposed. If one pleads guilty or no contest to any crime involving moral turpitude and more than 6 months incarceration was imposed, this conviction is likely to lead to removal proceedings. Even if your arrest was a mistake or a misunderstanding and you were even later released the arrest itself will often lead to serious immigration consequences.

It is bad enough to be arrested and or convicted of a crime - especially, if you have never had legal trouble before and were caught in an unfortunate chain of events. How do you prevent facing additional immigration consequences? If you are a non-U.S. Citizen and get arrested for any reason, first and foremost one should engage criminal defense counsel (never a public defender) and ask specific questions about immigration consequences to any strategy or plea other than "not guilty". If they cannot authoritatively answer your questions, as they should, seek a new and more qualified attorney. If a conviction has already occurred or is in your background, seek a qualified immigration lawyer.