If you are not a U.S. citizen you should always seek advice from a competent immigration attorney before accepting a plea agreement in a criminal matter.
I have lost track of how many times I have heard a client say, “My criminal attorney told me this case was not serious and it shouldn’t affect my immigration status.” Or sometimes they say, “My case was dismissed, so why will it affect me now?”
The Supreme Court ruled in Padilla v. Kentucky (2010) that defendants in criminal cases MUST be fully advised of the immigration consequences prior to pleading guilty in criminal court. Since that ruling most courts now ask non-U.S. citizens on the record, “Has your attorney advised you of the potential immigration consequences of this plea of guilt; are you aware that a guilty plea in this case may result in your deportation, exclusion, or disqualification for naturalization?”
However, most criminal defense attorneys do not practice immigration law and therefore are not qualified to advise their clients of all potential immigration consequences resulting from a criminal matter. The attorneys still have a duty to accurately advise their clients and in my opinion they should subcontract an immigration attorney to provide this analysis. Instead, most criminal defense attorneys simply tell their clients they “may” have immigration consequences for their plea of guilt.
It is important to analyze the present and possible future immigration consequences of a criminal matter. I was recently appointed to a case for a young man who had obtained DACA but his status was expired. After obtaining DACA he was arrested twice for possession of marijuana. He pled guilty to one and received deferred adjudication for the other. For state court purposes, the deferred adjudication case was dismissed after he successfully completed probation. However, for immigration purposes a deferred adjudication still counts as a conviction.
In order to qualify for DACA an individual can have no more than two non-significant misdemeanors. Possession of marijuana is considered a non-significant misdemeanor. Unfortunately my client now already has two convictions and a third charge of possession of marijuana is pending. A third conviction would disqualify him from DACA. He will have to pray for a miracle because it is very likely that he would be convicted at trial.
My client asked, “Well, then can I just marry a U.S. citizen and become a resident?” Just looking at his criminal history alone, I know that he is permanently inadmissible meaning he is forever disqualified from residency. One possession of marijuana (if less than 30 ounces) can be waived, but two cannot.
I wish that my client had been properly advised of the immigration consequences for his two previous cases. He may have made other decisions had he been properly informed. Technically he has a constitutional right to ask that those cases be reopened because his attorney was ineffective in his/her counsel. But that can be costly and may end up with the same result in the end.
Let my client’s situation serve as an example to you: if you are not a U.S. a citizen, please seek your own competent immigration counsel after you are arrested and before entering into any plea negotiations.