Effects Of Guilty Plea’s Without Immigration Advice
30 June 2016Author: Criminal Immigration lawyer Alena Shautsova
Getting into trouble whether it was your fault or not is always a daunting process once an individual has been arrested and scheduled for an arraignment. It is increasingly overwhelming when an individual is an immigrant with a permanent resident status. Most individuals will do the right thing and consult with a criminal attorney about matter, however, sometimes that criminal attorneys are unaware of the effects of a guilty plea for purposes of immigration. It is so even after a famous Padilla case (a United States Supreme Court case) that essentially held that a criminal defense attorney is ineffective if he/she did not consult with an Immigration attorney prior to client’s guilty plea.
When a US Citizen is arrested and goes through the court process, a plea of a misdemeanor can be a great deal as opposed to “Rolling the Dice” at trial when you can literally have a chance at 15-25 years sentences opposed to a 6 month jail period. For permanent residents, sometimes, this can be a problem. The issue at hand is that every state has their own personal sentencing recommendations for different crime, and in a State court, for certain criminal cases, the sentence may be less than that of the federal statute. When determining the possibility of deportation, the state statute is not to be considered, only the federal statute. It means that the state statute would be compared to its federal counterpart and if there is a “match” a person is in trouble...
A wrong plea makes a person deportable. A very wrong plea makes a person permanently inadmissible (and deportable).
The greatest example of this is Criminal possession of marijuana. In New York, the state courts are lenient with sentences involving small amounts of marijuana, however, the federal statutes still classify this drug in the same category as cocaine. Because of this, when taking a plea deal involving marijuana can not only jeopardize an individual’s chances at Citizenship, but the likelihood of ICE meeting you outside the courthouse after your sentencing date to arrest and detain you on Immigration charges is very high. This is just one of many examples of plea deals that can go wrong for a permanent resident. That being said, the basic principle is to go by the federal statute when determining eligibility for immigration benefits or deportation defense before taking a plea.
Immigration proceedings can also take into effect the record of a criminal trial and /or sentencing. This is an especially difficult situation to play around even for the best Immigration defense attorneys. With the record being taken into consideration for Immigration proceedings, anything that is said during the sentencing can be used against you…again. If the Judge in your case during the sentencing says that you are pleading to a lesser charge and then asks you on the record “But you really did ‘XYZ’” that statement, once you say “Yes your Honor,” can and will be used against you during immigration proceedings. This means that even if you secure yourself a great plea deal, an attorney will still have to order your case transcripts to make sure you did not admit to anything that can cause an issue later in your Immigration case. For the purposes of Immigration court, any admission to a criminal act is just as good as a conviction.
An Immigration attorney may help to avoid such mistakes. He/she can look at the probation report and contest certain findings (especially the ones about the amounts of damage); an Immigration attorney can advise about the difference between possession and distribution, about the record of conviction that contains the name of the drug versus the one that does not; about pleading to a higher charge but serving less time in jail… All these insignificant factors may play a pretty significant role during one’s Immigration proceedings.
There are a few exceptions when a person can take their plea back. It means that one should not play Russian roulette with his/her Immigration future and simply call an attorney as soon as he/she is facing criminal chargers.