Advising Non-Citizen Clients on Immigration Consequences of Criminal Convictions

One of the first questions that I ask any new client is whether he or she is a U.S. citizen. My reason for asking is that criminal charges can carry serious immigration consequences for any non-citizen (including permanent residents who have held this status for decades). The U.S. Supreme Court has held that criminal defense attorneys have a constitutional duty to advise their clients about the immigration consequences of their criminal cases and failure to do so is ineffective assistance of counsel. Padilla v. Kentucky, 130 S.Ct. 1473 (2010). I am careful to stay up-to-date on the constantly evolving body of “crimmigration” law (the intersection of criminal law and immigration law) so that I can effectively advise my non-citizen clients.

I am regularly hired by non-citizens to clean up the mess of having been incorrectly advised, or not advised at all, about the immigration consequences of a guilty plea. These individuals pled guilty to charges unaware that the convictions would result in them facing deportation or inadmission to the country. For these clients I file Motions for New Trial in which I ask the judge to allow my client to vacate his or her plea due to the constitutionally defective immigration advice given at the time of their plea.

Recently a Lowell District Court judge allowed my Motion for New Trial for a client who had a charge of Possession of Class B continued without a finding (CWOF). Many criminal defense attorneys are unaware that a CWOF is viewed as the equivalent of a conviction for immigration purposes and any drug conviction (other than possession of 30 grams or less of marijuana) will make the person ineligible for admission with no available waiver. My non-citizen client had married a U.S. citizen who wanted to sponsor him for a green card but could not do so because of the CWOF that he accepted 10 years prior. Fortunately, the judge allowed the Motion for New Trial and vacated his plea. His case was resolved in a way that did not put him at risk of immigration consequences.

If you are a non-citizen facing criminal charges, you need a lawyer who knows both criminal and immigration law. If you have previously pled guilty or admitted to sufficient facts (which results in a CWOF) to a charge that has made you ineligible for admission, change of immigration status, or you have received a deportation order, please contact me to discuss your case.