When a person is arrested and charged with a criminal offense, many times there are options available regarding the outcome of the case that raise important questions for the individual to ask a criminal defense attorney. For example, should I take the case to trial? Is there a plea bargain being offered? What kind of punishment is possible for the charge? How will this affect my ability to work, attend school, etc?
When the person charged is a non-citizen, another question normally rises to the top of the list….. How is this going to affect my immigration status? The law surrounding Immigration is complex and ever changing. When these issues arise, it is important to have a person who is knowledgeable in both criminal defense and immigration law to help advise on the immigration consequences of criminal activity. I get contacted often in situations like this, where a non-citizen is charged with a crime and needs to determine what, if any, impact a specific resolution will have on the non-citizen’s immigration status.
When this happens, one of the first things determined is whether a conviction will exist for the purposes of Immigration. Many clients and attorneys are surprised to find that many times the answer is “yes” even if the case is dismissed in criminal court.
The Immigration and Nationality Act (INA) has a very specific definition of conviction. It is this definition that makes it entirely possible for immigration officials to claim that a noncitizen has a conviction even if the charges have been dismissed in criminal court.
One of the most common examples of this is what is called a “stayed adjudication”. In a stayed adjudication, a defendant is cited or arrested for a criminal offense. At some time during the negotiation process, the state may extend an offer where the defendant agrees to plead guilty or no contest and complete certain requirements, such as a fine, counseling, community services, or classes. The state will agree to ask the judge not to find the defendant guilty, but instead allow him/her an opportunity to complete agreed upon sentencing requirements to earn a dismissal, or in some instances, a reduction of the charges. If the defendant successfully completes the requirements, his plea of guilty is withdrawn and the charges are dismissed or reduced pursuant to the negotiations. For the purposes of this example, lets consider a client whose negotiation contemplates a dismissal of the charges at the completion of the agreed upon requirements.
If all goes as planned, the defendant in this example leave criminal court without a criminal conviction. But if that defendant is not a United States Citizen, immigration officials may determine that the defendant has been convicted of a crime. This is because of how the INA defines “conviction.”
The INA § 101(a)(48)(A) defines a conviction for the purposes of immigration. Under this definition, a conviction exists if:
– A formal judgement of guilt has been entered by the court and a judge has ordered punishment;
– Adjudication has been withheld but one of the following conditions are met:
– A judge or jury has entered a finding of guilt and a judge has ordered punishment;
– The immigrant has entered a plea of guilty or no contest and a judge has ordered punishment;
– The immigrant has admitted sufficient facts to warrant a finding of guilt and the judge has ordered punishment.
In the stayed adjudication example, the defendant entered a plea of guilty or no contest and the judge imposed a punishment. The moment these requirements are met, a conviction exists under immigration law. The fact that the charges are later dismissed pursuant to the negotiation does not negate the conviction for immigration purposes.
Because of this distinction between the definition of a conviction in immigration law and criminal law, it is extremely important that a non-citizen charged with a crime consults with an attorney with experience in immigration and criminal law prior to accepting any negotiations in criminal court.