Visa holders need to know the risks of traveling abroad before their criminal case finishes, and risks before and after their case finishes in court

Visa (V) holders represent a high percentage of the Northern Virginia population. The diversity of cultures, languages, religions, and national and ethnic backgrounds in Fairfax and beyond help make this a wonderful and vibrant place in which to live and work. As a Fairfax criminal lawyer, I have defended hundreds of non-United States citizens. I ask potential clients their immigration status not out of any immigration enforcement bent (and I believe in liberal immigration into the country), but to include addressing any immigration risks from various sets of case dispositions and sentences, and also to know when to advise Virginia criminal defendants when to seek an immigration lawyer’s advice, where I am happy to be part of that conversation, and myself am familiar with numerous of the immigration ins and outs related to prosecutions. The Fairfax chief prosecutor for over four years has prohibited prosecutors in his office from assisting with civil immigration enforcement.

The current presidential administration is the most aggressive for decades in taking action against visa holders and undocumented people accused and convicted of crimes

Regardless of one’s political views, a truism is that current presidential administration is the most aggressive for decades in taking action against Visa holders and undocumented people accused and convicted of crimes. The risks a non-United States citizen faces from criminal prosecutions depend on such factors as their type of V, whether they get held in jail (and whether their jail visit is only for successfully obtaining release therefrom from a Virginia court magistrate), probably their nation of citizenship, the crime alleged, the status of their criminal case, the disposition of their case, their sentence (if any). Undocumented people (which the current presidential administration calls “illegal aliens”) are already being rounded up and deported even if with clean criminal records; undocumented people are at greatest immigration risk if charged with a crime.

Should I consult with my Virginia criminal lawyer before traveling abroad while my prosecution is pending?

Visa holders with pending criminal prosecutions should consult with their criminal defense lawyer before traveling outside the country while their prosecution is pending. Even if your risks of immigration harm are low from being convicted in your pending case, do not expect that the border patrol and other immigration authorities will have a sufficiently advanced understanding of your admissibility back into the country (and deportability) for having a pending case. U.S. immigration law is a complex mass of statutes, regulations, and federal and administrative court decisions that do not always provide an instant answer to your immigration risks if convicted. I ordinarily advise V-holders (undocumented people should generally not expect to be granted re-entry) to consult with an immigration lawyer before deciding whether to depart the country while their criminal prosecution is pending. If you are going to depart nonetheless, ideally you will have an immigration lawyer lined up who will in advance provide you an opinion letter telling the immigration authorities why you should be permitted to re-enter the country without delay and without detention, and with that immigration lawyer (or their colleague) ready to be with and advocate for you if you do get detained at the airport or border.

Will my H1-B or F-1 Visa be revoked while my Virginia DUI or other criminal case is pending?

As a Fairfax criminal lawyer, I have heard from H1-B professional V holders and F-1 student V holders of receiving notification from the U.S. consulates in their countries of citizenship or otherwise of revocation of those visas for nothing other than certain pending and not-yet adjudicated prosecutions for such alleged crimes as DUI. When that happens, the V holder needs to know whether they may continue to benefit from the V when remaining in the United States. Departing the U.S. with such a revocation means not being admitted back into the U.S. until successfully applying at a U.S. consulate in one’s country of citizenship to renew the V, which these days can be all the more delayed with the higher-level vetting with which the federal authorities are reviewing all V applications.

Must I reveal my immigration status and nation of birth to police and court authorities?

One day my client was being processed in my presence by a courthouse deputy sheriff for his criminal case, and the deputy emphasized that his computer system required stating my client’s immigration status. I replied that I assumed that the computer program enabled a way to bypass that (for instance by inserting an asterisk), and that my client was not going to answer that question. Within a minute, the deputy moved on. Your right to remain silent with law enforcement and court authorities — whether under the Constitution’s Fifth Amendment or otherwise — does not stop with your arrest, nor presence in the courthouse, in a probation or pretrial release office, or in a jail or prison. This blog (and nothing else on this website) does not contain legal advice, and there is no assurance of no adverse fallout from not disclosing your nation of birth nor immigration status, but revealing that status — whether visa status, birthplace or otherwise — may or may not make it more likely that the federal immigration authorities will then be informed of the same thing.

What happens to non-U.S. citizens prosecuted in federal court?

Your federal prosecutor works for the federal government that is aggressively pursuing deportation of undocumented people and certain people convicted of crimes. If you are a visa holder or are undocumented and get charged with an alleged felony or misdemeanor in federal court, definitely make sure you consult with a suitable lawyer on your immigration risks. Also, for drug felony and other felony prosecutions, check with your Virginia criminal lawyer about the risks you have of your prosecution being transferred to federal court; the risks of your ultimately being prosecuted in both state and federal court; and how you might reduce the risk of your case going to federal court.

How can visa status be used to my benefit in negotiating my Virginia criminal case?

As a Fairfax criminal lawyer, when I tell a Virginia prosecutor of my client’s collateral risks from a particular conviction or sentence (for instance with immigration, security clearance, health care licensing, and uniformed military status), the prosecutor’s response can run from “then s/he shouldn’t have committed the crime in the first place” to recognizing that my non-U.S. citizen client can end up being penalized worse than had s/he been a U.S. citizen convicted of the same crime with the same sentence. Make sure that your Virginia criminal lawyer does not reveal your immigration status to your Virginia prosecutor, police officer or judge without your authorization. So long as Fairfax prosecutors follow their chief prosecutor’s foregoing directive, that reduces the risk that they will intentionally disclose your immigration status to the immigration authorities (but what if they speak your status loudly enough to be heard by others, or tell the police officer?) and might be used to your benefit for negotiating a favorable case outcome.

Fairfax criminal lawyer Jonathan Katz treats each of his cases as the very serious matters that they are for his clients, and provides each client a full court press defense against Virginia felony, misdemeanor and DUI prosecutions. For your free in-person initial confidential consultation with Jon Katz about your court-pending prosecution, call 703-383-1100, Info@BeatTheProsecution.com or (text) 571-406-7268.