By Attorney Kenneth Wincorn
Special to THELAW.TV
This article is for all who are not U.S. citizens or those who have friends or employees who are not. It is amazing how easy it is to get in trouble with immigration. Juan recently was arrested for leaving a store without paying for all the items he left the store with. He is a permanent resident who got his residency three years ago. He has a wife and three children who are U.S. citizens and he has a great job. He made bail and went to court several months later. He had been charged with a misdemeanor theft for taking items valued at $60, a Class B theft. He knew was not guilty of the theft since he had not intended to take the items without paying. One of his children had taken a toy and put it in his bag as he left the store and he had not been aware of it.
Juan explained to his court-appointed attorney that he was not guilty, but did not want to make a big deal out of the case, so he did not want to try it. His attorney was not experienced in immigration law and had limited knowledge of what could happen to Juan's residency. He told him that this might affect his immigration status, but since he was a resident, it would not be a serious problem. Juan pled no contest and received a non-conviction probation (deferred sentence).
When it came time for renewal of the green card, he applied and received a notice to appear in immigration court. His immigration attorney informed him that he would automatically lose his residency and be deported. The problem was that Juan had been found guilty of a crime involving moral turpitude within five years of receiving his residency. Even though he had never been found guilty by the court, for immigration purposes, a deferred probation is a conviction.
This is how easy it is for someone who is not guilty of a crime to lose everything he has, including his family. There is a lack of knowledge in the immigrant community and in the legal community of the effect of criminal convictions. The example above shows one of hundreds of ways the system affects the most upstanding non-citizen. The rules apply to company presidents, as well as to agricultural workers. Social status does not protect anyone from mandatory penalties. The judges in immigration court have no options. They must follow the law no matter how they view the propriety of the result.
How about DWI's? They do not automatically result in loss of status, but if there is a child in the car, the situation changes. The same is true if there is an attempt to evade arrest or the police find some drugs in the car. Multiple DWI's cause a problem if the total of jail time assessed exceeds five years, regardless if the time is actually spent in jail. The five years is a total of all criminal sentences received in a lifetime. However, a DWI is a problem if there is an application for citizenship because it is considered to evidence bad moral character for five years after the conviction.
As you can see, interpreting the effect of criminal conduct on immigration status is complicated. Few criminal lawyers are well-versed in both areas of the law, but without the needed experience, it is not possible to represent the client adequately. The criminal courts do not inform defendants of the effect of their plea other than to say, sometimes, that the plea may affect their status and right to become a U.S. citizen. Few persons standing before a judge are in any condition to understand what that means and the word "may" is not correct. The plea often results in terrible consequences that "must" happen.
In addition to loss of status because of criminal sentences, there are other ways for status to be in jeopardy. Continuous absence from the country can become a problem if more than six months. If over a year there is a presumption of abandonment.
What can be done to avoid the problems mentioned above along with many other pitfalls? The first solution is citizenship! Once granted, unless there was something untruthful on the application, no one can be deported. It is amazing that so many people who are able to apply don't. For many, they will have dual citizenship, they lose nothing and gain more than citizens born here.
Above all, find a lawyer who is experienced in both areas of the law when there is a question involving legal status. The times that are the most critical are when applying for any immigration benefit or change of status as well as when a criminal matter arises.
The author, Kenneth Wincorn, is a immigration attorney in Richardson, Texas.
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