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Beware adverse immigration consequences from criminal convictions

May 24, 2011 Beware adverse immigration consequences from criminal convictions

Here is some additional food for thought for criminal defense lawyers defending non-United States citizens:

Does your criminal defense client sound American-born? That should not prevent you from asking every client their immigration status. I often ask that by inquiring where my client was born.

Many non-United States citizens will not have discernible accents. Many came here young enough to lose any overseas accent when speaking English. Plenty of Canadians have less of an accent than those from the deep South. Ask.

Once you know your criminal defense client is not a United States citizen, it is important to help out your client’s current or future immigration lawyer by being educated and mindful of immigration risks from certain criminal convictions and sentences, and to make the record clear when you obtain an immigration-friendly disposition. For instance, if your client is convicted of possessing marijuana but the amount is under 30 grams, it is best to get the weight and type of drug in and on the record, because 30 grams of marijuana is the dividing line between a possible exception or not to adverse immigration consequences from a drug possession conviction, and a conviction for most non-marijuana drugs carries no such exception.

If your non-United State citizen client is charged under a statute that has an aggravated felony and non-aggravated felony component, the first thing to consider is whether to push a guilty plea for the non-aggravated felony section. If your client is convicted for the non-aggravated felony component of the statute, it is important for the written and spoken record to scream that fact loud and clear.

As the Fourth Circuit made clear today, the burden is on the non-United States citizen seeking an exception to adverse immigration consequences from a criminal conviction, to show by a preponderance of evidence that s/he has not been convicted of an aggravated felony. Salem v. Holder, ___ F.3d ___ (4th Cir., May 24, 2011).

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