By P. Elizabeth Wittemyer, Esq.
The intersection between criminal law and immigration law can be very complicated. Generally, criminal law is defined by state statutes, with variations from state to state in what constitutes different levels of crimes and their respective punishments. For example, in one state a second or third DUI (Driving Under the Influence) may be defined as a higher level felony whereas another state may define it as a lower level misdemeanor. Immigration law is federal and does not vary from state to state. Immigration law can have severe and draconian consequences for a potential immigrant or a legal permanent resident ("green card" holder) who has violated criminal laws. The consequences of a criminal law violation in immigration law must go thru an analysis of how the crime will be defined under the federal system, depending on how the state where the crime took place defines it. This analysis should be conducted by an experienced attorney in both the criminal and immigration arenas.
A common problem arises when a criminal defendant, who is also a potential immigrant or a legal permanent resident, pleads guilty or is found guilty of a crime without having received competent, expert advice on resolving the criminal case in a way that lessens or avoids the immigration consequences of their crime. This is especially true when someone is seeking an immigration benefit but they have an old criminal conviction. Even if at the time they received their conviction, sometimes decades before, there were no immigration consequences, now there may be as there is no "grandfathering" in immigration law. There are many crimes that have been added to immigration law in the last twenty years that can have severe consequences for those seeking immigration benefits. For example, a criminal defendant can go thru their criminal case without any contact with immigration authorities or even a mention of immigration consequences resultant of their crime. The same person then goes to apply for an immigration benefit, sometimes years later, and are shocked to find that the past criminal conviction is now not only getting them denied of the immigration benefit they were seeking, such as Naturalization (citizenship), but is also placing them in Removal Proceedings (deportation).
It is very important to seek legal advice prior to filing for any immigration benefit where either the applicant or the beneficiary has any criminal convictions. The criminal law team at Feldmann Nagel Margulis, provides expert and aggressive defense for individuals charged with a crime and in representation before all branches of federal immigration agencies.