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Understanding Immigration Consequences in a Criminal Case in San Diego
What if you are charged in a criminal case and are on a visa or permanent resident status?
Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” Strickland , 466 U. S., at 686. As a criminal defense attorney in Southern California the crossover between criminal law and immigration law is one of the most challenging aspects of my practice. Section 237 of the Immigration and Nationality Act provides that a non-citizen may face immigration consequences if convicted of certain selected criminal offenses. 8 U.S. Code § 1227 establishes a list of the specific crimes that subject non-citizens to deportation proceedings. A crime involving moral turpitude, aggravated felony, controlled substances, domestic violence, child abuse or firearms offenses each may be grounds for deportation of a legal permanent resident. For these specific offenses a criminal law understanding of the elements alone is insufficient for a successful defense, a criminal defense lawyer must understand the technical rules of immigration law that apply to these offenses.
Two years ago I received a multi-codefendant prescription fraud case for over $100,000 in restitution. My client had been strong armed by her supervisor to commit forgery for prescription medications. She was charged with three felony counts under California Penal Code § 550 for knowingly making a writing with the intent to present it in support of a fraudulent claim. My immediate concern was that the client was a permanent legal resident and any plea deal that I obtain for her may have immigration repercussions. I explained to the client that before we could tackle the criminal charges against her, I had to find out if her immigration status in this country could be affected by a plea deal. I brought in an experienced immigration attorney who reviewed her immigration status and provided us with the rudimentary understanding of immigration law necessary to build her defense. The immigration attorney explained that for purposes of immigration law, an offense is considered a crime of moral turpitude if it involves fraud or dishonest intent or violates established social norms. Under 8 U.S.C. § 1251 for deportation based on a crime of moral turpitude the alien must be convicted of a crime committed within five years after the date of entry or sentenced to confinement for one year or longer. The immigration attorney also advised to be mindful of the amount owed in restitution because INA § 101(a)(43) defines aggravated felony as an offense that involves fraud or deceit in which the loss to the victim exceeds $10,000. Right away I knew this was going to be huge problem for my client because all six codefendants were held jointly and severally liable for over $100,000.
After these findings, the defense had two goals. First, reduce the charges against my client in order to avoid exposing to a sentence of a year because that would make her deportable. Second, reduce the amount owed by my client in restitution to avoid automatic deportation. To achieve this I went thru ten years of forged prescriptions for all six codefendants and found discrepancies with the unauthorized prescriptions attributed to my client because her name was being used to order prescriptions for others. After highlighting the mitigating factors in my client’s case, the fact that she was a single mother of a dependent child who is a U.S. citizen and will not be allowed to leave the country if her mother was deported. This finding allowed me to bargain with the prosecution and craft a conviction and sentence that would reduce the likelihood of deportation for my client if she pled guilty. After two years, we were able to achieve the impossible, a plea deal that would reduce my client’s charges to a misdemeanor burglary in exchange for a sentence of 364 days or less.
For me it was truly an honor to be able to help my client avoid deportation and remain in the United States, the only home she and her daughter ever knew. As a first generation American growing up in the United States, I understand first hand the kind of sacrifice that it took to get to here, the dedication that it takes to achieve the American dream and the implications for our loved ones to have that dream stripped away. I wrote this blog to make the legal community aware about the collateral consequences of immigration implications in criminal convictions. If you are not a citizen, a criminal conviction in the state of California can have detrimental immigration implications regardless of the alien’s otherwise legal status in the United States and their ties to the community. The reality is that when compared to U.S. citizens convicted for the same crime, aliens are being held to a higher standard because of the immigration implications that result from their criminal convictions. For example, non-citizens convicted of a crime of moral turpitude will be branded deportable convicts, they will loose their liberty, their residency and be returned to a country they do not have any ties with. In effect deportation punishes the families as well as the individuals because it tears lives apart by the permanent separation of their loved ones. Whereas a U.S. citizen found guilty of the same offense is branded a convict and may be temporarily deprived of their liberty but will generally be able to return to his or her family. Despite the higher standards that non-citizens are held to it is imperative that non-citizens be aware that they do have a fundamental right to representation. A non-citizen charged with a crime does not need to live in fear of the immigration consequences for their offenses because criminal defense attorney with experience in immigration law can make a tremendous difference to the outcome of a non-citizen’s case. If you want to learn more about the Monder Law Group, PC visit us at San Diego Criminal Defense Attorney