Alien Criminal Defense Information

“Navigating the Minefield”

O’Neill’s Experience in Alien Criminal Defense Assistance.  Brian O’Neill has a successful and growing practice providing criminal defense counsel and their clients with essential advice on the immigration impact of criminal charges.  His services include a formal opinion letter on the consequences of pending charges, and the possibilities of waivers taking into account the client’s personal circumstances.  Even more importantly, he works closely with criminal defense counsel throughout the plea negotiation process to “navigate the minefield” by fashioning pleas that minimize the immigration consequences for clients. 

New Jersey correctional facilities such as that for Morris County (pictured left) in Morristown, NJ  house not only U.S. citizens, but also aliens accused of state crimes; aliens on “immigration detainers” (i.e. federal mandatory detention) after conviction for serious crimes while removal proceedings are pending; and aliens awaiting removal under final deportation orders that may not involve criminal activity.

Criminal defense counsel representing aliens face unique and daunting challenges: a recent seminar on the subject by the New Jersey Institute for Continuing Legal Education (NJICLE) aptly described the task as “Navigating the Minefield.”

The field is particularly difficult for criminal defense counsel because the immigration treatment of crimes can be counter-intuitive, and is frequently inconsistent with established state criminal law principles.  Additionally, the consequences to an alien of an improvident plea and conviction can be catastrophic: loss of “green card” status, mandatory detention during removal proceedings, and a permanent bar on ever returning to the U.S., regardless of hardship to immediate relatives. Because of these pitfalls, uninformed pleas frequently result in aliens seeking seek to reopen old convictions by alleging ineffective assistance of counsel.

A brief discussion of core concepts drives these points home.

A Special Definition of “Conviction” for Immigration Purposes. Immigration law contains its own definition of a “conviction.”   That definition includes admitting “sufficient facts to warrant a finding of guilt” even in the absence of a formal conviction under state law.  Additionally, for immigration purposes a conviction cannot be cured by a subsequent state law expungement.  An expungement is meaningless in the immigration context, and may even make the alien’s problems worse.

Three Classifications of Immigration Crimes

Immigration law classifies crimes in three ways.  There are “crimes involving moral turpitude,” (CIMT’s) which are basically malum in se offenses.  There are “aggravated felonies,” which may or may not also be CIMT’s, and which may not even be felonies under state law.  Finally, there are specific offenses listed in the INA that may be neither CIMT’s nor “aggravated felonies,” but will still subject an alien to “deportation” or “removal” (the two terms are synonymous in most cases). Such crimes include almost all drug offenses, firearms offenses, domestic violence offenses, and even civil violation of a domestic protective order.

Three Consequences of Immigration Crimes

There are also three types of consequences to alien criminal activity:

1. Inadmissibility (inability to return to the U.S.)
2. Deportability (being “removed” from the U.S. after a prior admission)
3. Mandatory detention while issues of inadmissibility or removability are resolved in “proceedings” in Immigration Court.

Conviction of even a single CIMT may make an alien “inadmissible” at a port of entry and result in the loss of his or her green card status, regardless how long ago the conviction occurred.  Conviction of a CIMT within five years of the alien’s last admission, conviction of an aggravated felony, and conviction of a specific deportable offense may each make an alien subject to deportation or removal.  Finally, multiple CIMT convictions, or conviction of a single aggravated felony, will subject the alien to mandatory detention in a federal or county correctional facility until his or her right to remain in the U.S. is finally determined.

Waivers for Certain Immigration Crimes

Immigration waiver law may excuse aliens from the consequences of certain convictions. No waivers are available for aggravated felony convictions, but “extreme hardship” waivers of inadmissibility and deportability for other convictions may be available for aliens with immediate relatives in the U.S. who are U.S. citizens or lawful permanent residents. 

An Area of the Law in Constant Flux

The law regarding immigration consequences of criminal activity is in a constant state of flux.  It is subject to ongoing interpretation and development at the federal level in precedent opinions issued by Board of Immigration Appeals (BIA) and the federal circuit courts of appeal, not to mention the U.S. Supreme Court.  Because of this, it is highly advisable for criminal defense counsel to secure the assistance of immigration counsel to “navigate the minefield” in this technical and difficult area.  In today’s post-9/11, anti-immigrant environment such assistance should be seen as a fundamental requirement of professional responsibility and service to one’s foreign clientele.