Immigration Consequences of Criminal Convictions; or Criminal Defense of Aliens--Avoiding "Collateral Damage"


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This is a quick guide using hypotheticals to explain the dangers of plea bargains that result in deportation (removal) of your foreign clients. Consult with me before you enter that plea.

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Immigration Consequences of Criminal Convictions; or Criminal Defense of Aliens--Avoiding "Collateral Damage"

  1. 1. CRIMINAL DEFENSE OF ALIENS : Avoiding “Collateral Damage” (Or are you from Mars or Venus ?) Eliot Norman, Esq. Partner Immigration Practice Group Williams Mullen
  2. 2. In tribute to Professor Robert E. Shepherd
  3. 5. Minal from India (A. p. II-5) <ul><li>Petty Larceny by Minal, a retail employee: 9 months, all suspended with credit for time served (She spent a weekend until bonded out on Monday morning on her personal recognizance). Is this a Good Deal? Maybe not? This one relatively, routine criminal case, illustrates the “twists and turns” of dealing with the Immigration and Naturalization Act (INA). </li></ul>
  4. 6. “ Frenchie” Alphonse-Phony CD Seller (C. p. II-10) <ul><li>Alphonse is from Paris and manages the small branch office of a Community Bank in Hampton Roads. Like Mohammed, he is a long- time Green Card holder, married to a U.S. citizen whose children are born in Virginia. After losing all his savings in a Ponzi scheme, he goes into the Bank one night and steals a blank Certificate of Deposit. He then manufactures his own 90-Day CD, at an interest rate paying 5%. He sells it over the internet to an unknowing investor in France looking for a safe and lucrative investment. He pockets the investor’s funds, and delivers the CD by Federal Express. The Bank learns of the fraud when the depositor tries to cash the CD in and the Bank has no record of either issuing the CD or receiving the investor’s funds . </li></ul>
  5. 7. Natasha (Hypo D p.II-12) <ul><li>Natasha is Russian and just graduated from George Mason University. She is employed by a private import-export firm. She is the sole source of support for her invalid mother, a U.S. citizen. Natasha obtained her Green Card in February 2004. She first came to the U.S. in 1998. While still a foreign student she left and came back from Moscow in January, 2004. Unfortunately, she is charged with stealing another student’s Visa card in the summer of 2008 and using it on three shopping trips to Macy’s. Each fraudulent transaction is under $500. How do you structure the plea bargain? The Commonwealth’s Attorney won’t agree to any sentence of less than 1 year and wants a plea to each of the offenses. </li></ul>
  6. 8. Fernando (E. p. II-12) <ul><li>Domestic Assault in Virginia: Fernando (El Salvadorian) slaps around Lucille and gets put in the slammer. How do you handle? </li></ul>
  7. 9. Pedro-DUI =Fatal Car Accident (F. p. II-13) <ul><li>Traffic Offense: Pedro is an illegal alien. He crossed into Texas in 2005 with his Border Crossing Card to go shopping at the hardware store and never went back. He has lived and worked throughout the Southeast ever since. He is living with his long-time U.S. citizen girl friend in El Paso, Texas and they have two children together. He just moved temporarily to Henrico County last month where he works as a supervisor with his construction crew on the new Westin Hotel. He has a valid Texas driving license where he owns his home. After leaving the Outback restaurant on West Broad Street, he is involved in an accident in which he backed up on Interstate 64 because he missed his exit ramp. In the two-car accident, his U.S. citizen passenger is killed. He has no prior driving record. He is charged with simple DUI and aggravated involuntary manslaughter. Va. Code 18.2-36.1 and 18.2-266. You are hired by the girlfriend to defend in this high-publicity local case, which once again raises an outcry about illegal aliens in Virginia driving drunk on our highways. </li></ul>
  8. 10. Mary from Ireland- Long Time Green Card Holder and Sole Support of her Family (G. p. II-14) <ul><li>Mary from Ireland has a Green Card; she has been married to a U.S. citizen for 20 years; she has 3 children born in USA; she works in a medical office and part-time at night for Wal-Mart. She gets caught in the winter stealing two pairs of boots for her children. Unlike Minal in our first example, Mary is a legal permanent resident and long-time resident of the United States. </li></ul>
  9. 11. Practice Pointer #1: Think about the Big Picture
  10. 12. Practice Pointer #2: Ask 3 Basic Questions about Every Plea Bargain
  11. 13. Practice Pointer #3: Know and Understand Your Client’s Immigration Status
  12. 14. Practice Pointer #4: Watch out for “Collateral Damage” from the Record of Proceedings in State or Federal Court
  13. 15. Practice Pointer #5: Know the Crimes that are not Removable Offenses and Use Them
  14. 16. Practice Pointer #6: The length of the sentence or maximum possible sentence, not whether the crime is a misdemeanor or felony, often determines the Immigration Consequences or “Collateral Damage.”
  15. 17. Practice Pointer #7: The Drug Possession Case: Try to handle it to avoid making it an Immigration Aggravated Felony
  16. 18. Practice Pointer #8: Use the Two “Petty Offense” Exceptions to your Advantage
  17. 19. Practice Pointer #9: The Four Most Common Aggravated Felonies to Avoid
  18. 20. Practice Pointer #10: Avoid Mandatory Detention and Limit the Risk of ICE Detainers
  19. 21. Practice Pointer #12: Avoid Pleading a Foreign Client to Multiple Counts, even if Sentences are Concurrent
  20. 22. Practice Pointer #13: Amending the Sentence or Vacating the Conviction to Avoid “Collateral Damage”
  21. 23. Practice Pointer #14: CAVEAT: These Pointers May All Be Subject to Change
  22. 24. Conclusion