Tuesday, July 27, 2010

How Criminal Lawyers and Immigration Lawyers Differ

As an immigration lawyer, you have to think about the immigration consequences of everything. This includes traffic violations.

Hypothetically, let's say you have a client charged with driving without a license. He has no immigration status, so he can't get a license. This is his second offense.

In Virginia, this would be a class 1 misdemeanor, punishable with up to 1 year in jail and/or a $2500 fine. The offense itself does not require that the person know that he had no valid license. This means that the conviction in and of itself would not have immigration consequences.

Now, let's say the prosecutor offers a 30 day sentence with 25 days suspended. The jail counts a day and a night as separate days. Client could serve the whole sentence in a weekend by reporting Friday afternoon. Most criminal defense attorneys would find that a good deal.

But, here's where an immigration attorney differs. I would see my client going into jail, being put in a computer system. ICE would pick that up, and could possibly put a detainer on him for being present without status. Thus, even though the offense itself may not have immigration consequences, the fact that he goes to jail and is put in a system could have immigration consequences. In this situation, my judgment is to advise taking the fine, even if it is $2500, and walking out of the courthouse free, to avoid any jail time and the risk that ICE starts removal proceedings.

Bottom line is that sometimes an immigration attorney will see it better to reject what a criminal attorney would think is a good deal, in order to avoid the opening of removal proceedings.

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