Non-citizen criminal defendants need to know immigration consequences

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Apr 15, 2007 Non-citizen criminal defendants need to know immigration consequences

The Statue of Liberty is worth little if immigrants’ rights are not vigorously protected.

NOTE: Thanks to our immigration law partner extraordinaire Jay Marks for reviewing and commenting on my following article on adverse immigration exposure from criminal cases. I submitted the article for publication in the next bimonthly newsletter of the Maryland Criminal Defense Attorneys Association. I chair the MCDAA’s Immigration Law Committee, with the goal of encouraging criminal defense lawyers and everyone else to know and reduce the negative immigration consequences from criminal prosecutions.

This article weaves new information and ideas with past writings I have posted in disparate parts of our website and blog. The immigration consequences of criminal convictions present a spider’s web of counter-intuition, mysteries wrapped in enigmas, and too much injustice. Kafka could not have written a more chilling tale.

Immigration Law and Criminal Court: Fertile ground for fatal collisions.

By Jonathan L. Katz

Criminal defense lawyers constantly need to address their clients’ immigration risks from criminal cases. However, immigration law, policy, and procedure are so overgrown, fickle, complex, often impractical, often oppressive and unjust, and often without sense that not enough hours in the day exist to catch up without practicing immigration law full-time.

A few good initial tips for addressing immigration issues in criminal court are in my “Protecting Immigrants in Criminal Court” article that was published in the November/December 2003 MCDAA newsletter. The article is available at

This article will address a few recent immigration issues affecting criminal defendants and some issues that are ever-present.


In January 17, 2007, the Supreme Court held that aiding and abetting theft is deportable. Alberto Gonzales v. Duenas-Alvarez, ___U.S. ___, 127 S. Ct. 815 (Jan. 17, 2007).

This Duenas-Alvarez decision is particularly troubling in that aiding and abetting convictions often visit the innocent who just happened to be near stolen property. For instance, in Maryland, it is a crime to be in a car with knowledge that it is stolen, Md. Crim. Code § 7-203, and the police routinely arrest every occupant of a stolen car.


In December 2006, the Supreme Court held in an 8-1 decision that automatic deportation of non-citizens is not permitted for a drug conviction that is a felony under state law if it is not a felony under the federal Controlled Substances Act. Lopez v. Gonzales,___ U.S. ___, 127 S. Ct. 625 (Dec. 5, 2006).

The Immigrant Defense Project of the New York State Defenders Association has posted a good online legal analysis about this Lopez case at . The analysis confirms that Lopez applies only to automatic deportation from drug convictions. Consequently, a non-citizen convicted of a drug crime is not automatically out of harm’s way from the numerous non-automatic negative immigration implications from convictions merely if the conviction is not a felony under the federal Controlled Substances Act.


If a criminal defendant is not a United States citizen, usually a criminal record expungement should not be sought. A criminal record expungement only shields the record from public access, so immigration authorities will still have access to information about expunged criminal cases.

Immigration authorities often will want to see court records confirming a case’s disposition. Therefore, non-citizens ordinarily should avoid seeking expungements, but they are also well advised to obtain multiple certified copies of favorable criminal case dispositions in the event that the court’s file eventually becomes lost or destroyed.


Immigration and Customs Enforcement (ICE) often lodges immigration detainers against people jailed pretrial. Sometimes ICE fails to file charging documents along with the detainers, which can become a basis for invalidating the immigration detainer.

In any event, a two-prong integrated attack should be mounted when a criminal defendant is both being held on a criminal court bond and on an ICE detainer. Beware paying the criminal court bond if no chance exists to release the defendant from the immigration detainer. Otherwise, the defendant will not earn incarceration credit while held only on an immigration detainer, and may be transferred to a detention facility farther from the county jail.

At the same time, it is a mistake automatically to advise a defendant not to pay a criminal court bond merely when an immigration detainer exists. The best approach is to consult with an immigration lawyer on the chances and approach for striking the immigration detainer or obtaining an affordable bond with the immigration authorities.


Federal authorities have been making well-publicized workplace raids seeking people unauthorized to work and live in the United States. Such raids raise legal exposure not only for the workers, but also for their employers.

By meticulously adhering to the I-9 law that requires employers to obtain work authorization proof when employment starts (as much as this amounts to forced deputization of private employers by the federal government), employers can reduce exposure to penalties for hiring unauthorized workers even if the worker has presented the employer with false or forged documents that look regular on their face.


With raids and all other contacts with authorities, people need to know that they have the right under the Fifth Amendment and other applicable laws to refuse to state their immigration status. Unfortunately, police, pretrial services employees and probation personnel repeatedly ask defendants their immigration status. A natural human tendency is to provide such information at least to people working for the court system. This state of affairs makes it all the more important for lawyers to accompany their non-citizen clients to initial probation intake meetings and to interviews for pre-sentence investigation reports.


Unfortunately, many undocumented people (a phrase preferable to “illegal alien”) commit crimes involving lying and identity theft that are not necessary in the first place to obtain bank accounts and to conduct other daily affairs.

Fraudulent social security numbers and false identifications are in rampant supply, and are rampantly purchased. Let alone criminal exposure, the immigration consequences for going down such a path can be very serious.

The temptation by undocumented people to provide false information to motor vehicle administration authorities can be strong and must, of course, be avoided. Furthermore, people should beware using international drivers’ licenses in the United States if actually living full-time in the United States.

Undocumented people need to know that even when asked for a social security number, some acceptable alternatives to social security numbers may be available. For instance, some banks, lenders, and other businesses will accept a tax identification number in place of a social security number. One does not need to be in the United States lawfully in order to obtain a tax identification number from the Internal Revenue Service.

Similarly, undocumented people should not avoid paying taxes merely for not having a social security number. In fact, the payment of taxes (and payment of back taxes) often is an important factor in obtaining immigration benefits from the government.


In many countries, becoming a notary is an accomplishment backed up by significant education, and involves providing law-related services. People need to know that being a notary in the United States means nothing other than that the notary paid for a notary license and was not found to have had any convictions for theft or crimes of moral turpitude. Negligence (or worse) of a notary or anybody else in providing incorrect factual information in draft applications for immigration benefits can end up seriously harming the non-citizen who signs but does not correct the application, thinking s/he is in good hands with the notary.


Nothing beats consulting a qualified immigration lawyer well in advance about any immigration risks from a criminal case. Better yet is to have immediate access to an immigration lawyer on the court date, in case any unexpected guilty plea offers are made that were not contemplated by the immigration lawyer (e.g., to convert a spousal assault charge to a property destruction plea, which could still involve negative immigration implications).


Immigration laws, practice and procedure become more complex and overwrought by the month. One blink can miss out on critical immigration law changes that might have a lasting and material impact on the life not only of a non-citizen criminal defendant, but on the defendant’s family, as well. These landmines can be minimized through close teamwork between criminal defense and immigration lawyers.

Jon Katz is the criminal defense partner at Silver Spring’s Marks & Katz, LLC. He is the chair of the MCDAA’s Immigration Committee, and welcomes  new committee members and ideas for defending non-citizens.

Jon Katz.

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