Immigrants and all non-U.S. citizens need to fully fight their prosecutions, says Fairfax criminal lawyer

Immigrants and all non-U.S. citizens: As a Fairfax criminal lawyer, I warn you that the current presidential administration is eager to deport and not admit people with particular convictions, sentences and even particular pending criminal charges and viewpoints. This stands in stark contrast to the widely immigrant-friendly approach of the Fairfax commonwealth’s attorney / chief prosecutor and numerous other Northern Virginia chief prosecutors. Certainly, everyone can push for systemic change in this regard, but that does not replace the need for all non-U.S. citizen criminal defendants to obtain the best possible lawyer to defend them, and to pursue an effective defense.

Are permanent residents / green card holders with pending criminal charges much more protected than criminal defendants who are asylum applicants, DACA status holders, VAWA applicants, H-1B professional visa holders, F-1 student visa holders, or tourist visa holders?

If you are a criminal defendant and not a United States citizen (collectively, Immigrants, for this article),  ask your Virginia criminal defense lawyer whether the two of you should consult with an immigration lawyer to reduce adverse immigration exposure from your criminal defense case, and about any ICE detainer risks pending your trial outcome and any other adverse pretrial risks. Padilla v. Kentucky, 559 U.S. 356. While even during prior presidential administrations, numerous (0r more) F-1 student visa holders would receive notices of the mere existence of a pending DWI prosecutor meaning that they would have to return to their country of citizenship to renew such visas, we recently have a situation of a university student with an F-1 detained for apparently no reason other than his DUI conviction, rather than at worst being notified to appear for an immigration court hearing on the matter. Ordinarily, we would expect permanent residency to be the best protector among all non-U.S. citizen categories, but if you have a conviction, find out whether that conviction may carry adverse immigration consequences, and find out whether you risk an ICE (Immigration and Customs Enforcement) detainer.

Do immigrants have Constitutional rights?

Yes, citizens and immigrants on United States soil has Constitutional rights, including the right to assert your Constitutional Fifth and Sixth Amendment right to remain silent, and Fourth Amendment right to refuse to consent to police / law enforcement officer (LEO) searches. You also have First Amendment rights to free expression, but be aware that the current presidential administration appears to be using content-based considerations in determining which green card holders and other non-U.S. citizens to target for deportation proceedings.

If it is not too late to appeal their Virginia convictions, should immigrants appeal if I am not a United States citizen?

Appealing can sometimes help or not hurt, and at other times can be like jumping out of the frying pan and into the fryer. Talk to a qualified criminal defense lawyer about whether to appeal your conviction. Consider, for instance, that any conviction for a crime of moral turpitude (for instance a felony or theft related offense) can have adverse consequences for non-U.S. citizens, at least depending on when they last lawfully entered the United States. Aggravated felonies also pose immigration risks. Being deemed a habitual drunkard carries such risks. AT least for non-permanent residents, even a pending charge for such a crime as DUI carries risks.

Should non-U.S. citizens avoid pretrial and post trial detention, and know when a dismissed count can still be considered a conviction for immigration purposes?

Immigrants should listen to my recent podcast with a great local immigration lawyer, about such critical items as how to assert your right to remain sient with police and others. Beware standing out for immigration authorities by spending pretrial or post-sentencing time incarcerated beyond the booking process (which process is less desireable than simply being summonsed to return to Virginia criminal court). Most importantly, obtain the best posible lawyer for your case.

Fairfax criminal lawyer Jonathan Katz has defended thousands of people accused of alleged felony, misdemeanor and DUI crimes, including hundreds of immigrants. Call 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268 for your free strictly confidential initial consultation with Jon Katz.