Immigration Consequences For Non-Citizens Accused of a Crime


Normally, a person accused of a crime who is a United States Citizen must decide whether to plead guilty or go to trial.  This decision is made after careful consultation with his or her attorney and after reviewing the strength of the evidence against the defendant, the likelihood of success at trial, and the amount of jail time he or she will receive.

Non-citizen defendants face a difficult choice–plead guilty and be deported or go to trial and risk additional jail time in order to preserve their immigration status.

But what happens when a non-citizen is charged with a criminal offense?  The non-citizen faces another problem that maybe worse than the jail time he or she receives if convicted—that problem is deportation.

There are plenty of people living in the United States who are not United States Citizens.  These include lawful permanent residents, foreign students, individuals granted asylum, and undocumented individuals.  For defendants in this category—they need to know if a conviction on the charged offense will result in deportation, removal, or denial of reentry into the United States.

Non-citizen’s Dilemma:  Plead guilty and be deported or go to trial and face additional jail time followed by deportation. 

Should a non-citizen go to trial if there is substantial evidence to prove his or her guilt and there is little chance he or she will be acquitted (found not guilty)?  That decision will depend on receiving accurate immigration advice from your criminal-law attorney and the non-citizen’s goals for his or her case.

One final question—what if your criminal law attorney gives you bad advice?  What if your attorney tells you— “don’t worry about deportation . . .  you won’t be deported” when deportation is mandatory for the offense you are pleading guilty to?  That’s the issue the Supreme Court considered in United States vs. Lee.

UNITED STATES v. LEE (No. 16-327).  582 U.S.____ (2017).

Jae Lee, a lawful permanent resident from South Korea, was charged with possession with intent to distribute ecstasy in violation of 21 U.S.C. § 841(a)(1).  The evidence against Lee was strong and Lee had no real defense to the charge.  Lee asked his attorney if he would face deportation if he pleaded guilty to this charge.  His lawyer told him no.  Lee’s lawyer was wrong and Lee faced deportation proceedings.

A non-citizen defendant should consult with his or her lawyer about the immigration consequences of a criminal conviction before he or she enters into a plea agreement or proceeds to trial.

Lee filed a 2255 motion to set aside his conviction based on ineffective assistance of counsel.  Specifically, Lee alleged that had he known he would have been deported he would have proceeded to trial even though he had little chance of being acquitted by a jury.  The Supreme Court agreed with Lee and set aside his conviction.

The Court found that Lee’s trial attorney was ineffective for giving erroneous immigration advice.  Further, the Court said that Lee’s primary motivation in his case was avoiding deportation.  The Court stated that this is a legitimate goal for non-citizen defendants: “Deportation is always a particularly severe penalty . . . and we have recognized that preserving a client’s right to remain in the United States may be more important to the client than any potential jail sentence.”  (Citations omitted.)

So, what does this mean for your case?

If you are a non-citizen accused of a crime—you should ask your attorney directly if you will be deported, excluded, or denied admission if you plead guilty or are found guilty by a jury.

Further, if there is any question or ambiguity about the immigration consequences of a conviction in your case—you (along with your criminal law attorney) should consult an immigration lawyer to discuss (PADILLA Review) these issues BEFORE you plead guilty or proceed to trial.

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