Deportation for Any Conviction, No Matter How Minor

I have a client; let’s call him Jay. One day INS agents hauled Jay out of his place of employment. He had been charged with forging a $100 check. The checkbook belonged to Jay’s parents. He had forged the check with their permission. Jay was incarcerated for about a year until my firm and I got him out. With a competent lawyer early on, Jay probably could have avoided prison.

As anyone might imagine, all sorts of confusion had arisen around Jay’s case and none of it was sorted out in a satisfactory manner. So, Jay ended up incarcerated in a federal prison in Arizona. Many immigrants are not aware that as long as they are not U.S. citizens, even if they are legal permanent residents, they can be detained or deported for any conviction, no matter how minor.

Wisdom in Both Criminal and Immigration Law

During a recent trip to Arizona to represent twoFilipino clients, we discovered that something went wrong in the criminal court level that led to their detention. They were lawful permanent residents who were convicted in a state court. The convictions led immigration to detain and attempt to deport them. We learned that their attorneys in criminal court could have handled the case differently to prevent immigration detention.

When defending an immigrant in a criminal case, it is important that the lawyer be competent in both criminal and immigration law or have a colleague who can complement his or her legal expertise. The criminal lawyer must be very clear as to how the criminal case verdict will alter the immigrant’s legal status, with the primary goal being to avoid deportation.

Certain types of crime convictions can make immigrants very likely for deportation. Handled correctly, deportation can often be avoided. Our clients in Arizona neglected to work closely with their criminal lawyer, neglected to make it clear that their immigration status could be adversely affected by their conviction. As a result, their immigration case is in jeopardy.

Analysis and Strategy

A lawyer must review and analyze the crime. He or she must consider if conviction would lead to deportation. If there is a good chance of beating the rap, the attorney should consider going to trial. On the other hand, many lawyers choose not to go to trial for fear of losing and the possibility of jail. Sometimes this is prudent. But, the remaining options are to plea bargain or plead guilty. And both of those options could have negative immigration consequences as well.

One strategy is to ask for a reduction of the crime from felony to a misdemeanor. A felony is the more serious crime, of course. By having the offense reduced to a misdemeanor, the chance of success in immigration court is enhanced. Immigration officers would almost automatically re-arrest any immigrant if they see a felony conviction on that person’s record.

Three Examples That Show a Little Can Mean a Lot

Some of our clients had gotten DUI arrests, which are relatively minor. They then left the U.S. for whatever reason and when they returned, they were surprised to hear that immigration was starting deportation proceedings against them. Little things that can be done in criminal court that can save one from deportation. For example, in one case we negotiated an imposed sentence to less than one year.

Generally, if the sentence imposed is less than one year, there may be relief from deportation. In another case we attempted to keep certain damaging statements from being included in a probation report. This kept the deportation relief alive. And in yet another instance, we refused to stipulate that statements in the conviction record were true. In fact, we challenged the statements given to the police. In doing this, the immigration case remains winnable.

One Day in Prison Is too Much

Remember Jay? Well, after talking with him, it indeed appeared that more could have been done to prevent his mandatory detention. Every immigrant facing criminal proceedings should be certain that their defending attorney knows all the possible verdicts in the case and the impact each verdict could possibly have on the immigrant’s legal status. Any convictions must be checked out for possible action by Immigration and Customs Enforcement (I.C.E.).

Living in detention, especially in the middle of the Arizona desert, can’t be easy. The federal detention facility in Eloy, Arizona holds hundreds of illegal immigrants. How many could have avoided being there with the help of a competent advocate? Even one day in a federal prison is too much of a price to pay if it can be prevented. Each immigrant must demand that their lawyer consider all possible theories and find all possible loopholes to secure their freedom.

Immigrants, it’s your life and it’s your freedom – tell that to your lawyer.

Johnson Lazaro has been practicing law for over 25 years. For questions please call 866-237-9555 or Email:   This article should not be taken as legal advice.  This is not meant to create a lawyer-client relationship.