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Crimes and the Immigrant
FAQ - Crimes and Immigrants Print E-mail
Immigration Law - Crimes and the Immigrant

These FAQs are divided into two main parts.  The first concerns questions about our representation.  The second concerns questions about the law.  Note: This is not legal advice.  For legal advice you must contact a qualified attorney.

Part 1 - Representation Questions

Q. Can you represent or advise me if I don't live in PA.

A. Yes. Immigration law is federal and we always thoroughly research state and federal law.  We always try to work with your criminal defense counsel so that your defense integrates the immigration law concerns.

Q. Do you need to meet me in person?

A. Not usually.  We will ask you to complete a detailed questionnaire as part of our intake process.  Your criminal defense counsel may also assist with our intake requirements.

Q. Do I need to pay you up front?

A. Yes.  We know that this may be difficult especially if you are incarcerated, we are paid for our expertise and need to be paid in advance.

Q. Will you refund my money if I lose or make some other arrangement related to the outcome?

A. No.  We are paid for our expertise, not the outcome.

Q. Will you represent me in immigration court and bond hearings?

A. Usually the immigraton authorities will wait until the criminal case is complete before they bring immigration charges.  When you are notified that there are immigration proceedings you will need to hire an attorney to represent you in immigration court.  We'll talk then.

Q. What if I don't speak English?

A. If you do not speak English the immigration authorities will appoint a translator should you need to appear in court.  For all other appearances, for example at a local office for an interview, you will need to provide your own translator.  Our office can accommodate French, Spanish and Portuguese speakers.  You may be required to pay extra for these services depending on our staffing levels.  We can hire translators for most any language but usually a friend or family member will be just fine.

Q. I am indigent and have a court appointed lawyer.  Will the court pay for immigration advice?

A. No.  It is true that you have the right to competent immigration advice from a lawyer, but the government is not required to pay for you to get that advice.  You will need to make arrangements to your immigration lawyer directly.

Part 2 - Legal Questions

Q. I've had my green card for 20 years, can I still be deported.

A. Yes. Anyone who is not a U.S. citizen can be deported no matter how long they have been here, how much they have contributed to society or their family obligations.

Q. The judge said my record would be expunged if I don't get in trouble for a year, can I still be deported?

A. Expungements and other forms of post conviction relief will generally not protect you from immigration enforcement.  Immigration cares only that you were found guilty, not whether or not you are rehabilitated.

Q. My lawyer says I should accept a guilty plea, I don't want to plead guilty if it will get me deported.

A. This is one of the most important parts of our work.  We will help your criminal defense attorney to craft a plea agreement that minimizes the immigration consequences.  Your criminal defense counsel may suggest that you go to trial if only an acquittal will keep you in the country.

Q. I am a long time permanent resident can I naturalize before I am deported?

A. You may be able to apply for citizenship before you are deported, but keep in mind that some convictions will also prevent your naturalization.

Q. My family member is in jail, can I hire you?

A. Yes.  We are often hired by family members, friends or other relatives when the immigrant is incarcerated.
 
10th Cir. Decision Highlights Complexity of CIMT Analysis Print E-mail
Immigration Law - Crimes and the Immigrant

In an April 29, 2011 decision the 10th Circuit Court of Appeals handily picked apart the sloppy legal reasoning that seems to have become the government norm since the author of the indefensible torture memos became a law professor.

In a detailed and well reasoned decision, the 10th circuit reversed the BIA and vacated a removal order where the immigrant, a lawful permanent resident, had been convicted of failing to properly register as a sex offender pursuant to Colorado law, and where that offense was deemed by the government to be a crime involving moral turpitude.

Important Case Law:

  • Detailed discussion of Chevron deference finding no deference required.  
  • Agency decisions which conflict with earlier decisions are entitled to considerably less deference than a consistently held agency view.
  • Sexual crimes such as statutory rape, child abuse, and spousal abuse are crimes involving moral turpitude
  • Registration as a sex offender is not analogous to sexual crimes themselves, but rather is a regulatory offense.
  • Regulatory offenses in  most cases cannot by definition be crimes involving moral turpitude.
  • This regulatory offense involves no morally turpitudenous mental state and is therefore not a crime involving moral turpitude.
  • The BIA's interpretation of moral turpitude in Tober-Lobi is unreasonable.
Kudos to the 10th Circuit for its intelligence and sanity in this matter.
 
Immigration Consequences - Generally Print E-mail
Immigration Law - Crimes and the Immigrant

The US government will deport even long term permanent residents, folks who have been here lawfully for many decades, even when the offense was a misdemeanor under state law.  

The immigration consequence flowing from a criminal conviction are not always immediately apparent.  Sanctions can range from none, to a five year naturalization bar, to deportation with a lifetime ban on re-entry.

In the wake of Padilla v Kentucky it is now clear that criminal defense counsel has a binding obligation to provide sound immigration advice to non-citizen defendants.  The defendant's decision whether or not to enter into a plea agreement is may be more heavily influenced by the immigration consequences than the criminal sanction.

Criminal Defense counsel will often contact Mr. Feldman to assist with analysis and strategic planning.  Mr. Feldman has been advising criminal defense counsel and their clients for ten years and has developed a proven analytical frame work and methodology.  Mr. Feldman works with defense counsel to properly advise the defendant and to craft a least risk strategy.  

Defense attorneys as well as defendants and their family may contact Mr. Feldman directly most weekdays between 10 AM and 6 PM eastern time.  Mr. Feldman will work with private defense counsel as well as public defenders. 

Each state's criminal laws are unique to that state. Immigration law is federal law and Mr. Feldman's practice is national in scope.   Mr. Feldman only accepts cases where local criminal counsel is available to properly advise regarding state law matters.   

IMPORTANT IMMIGRATION LAW CONCEPTS:

Attempted crimes normally carry the same immigration consequences as the crime itself.

Most state expungement and many state rehabilitative statutes will not shield an immigrant from immigration consequences. 

Even gubernatorial pardons are problematic. 

Before any admissions are made or bargains struck it is imperative that immigration counsel review the charges and work with defense counsel as a team to achieve the best possible outcome.

 


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