I do not practice immigration, it is too heart breaking. It has been a hard thirty years watching my clients make the right decision about which way to jump, as the prosecutor attempts to corner his exhausted prey. The clients, many times out of fear, decide to take a deal, when there is and was, only one way to go.
Many of my Hispanic clients have no choice but to plead to a case where the punishment means they will have a conviction on their record, however, they will avoid the humiliation and indignity of a jail sentence. It is even worse when the prosecution offers a deferred probation, that is the client is not convicted. But, the illusion of a future in the United States as the proud owner of a Green Card is eliminated.
Millions of people with green cards arrived as children. If enough time passes, they live in the U.S. for so long that they don’t have close family contacts in their native country or even speak the language. What happens to these folks if they get arrested for a crime? They are almost always offered a plea deal. It’s common sense. Avoid a trial which will cost significant legal fees and may result in a very serious sentence. The problem is, it’s very rare to find an immigration law expert in the room when it’s time to plea bargain. You can put together the best criminal defense attorney, the most experienced prosecutor, and the judge with decades on the bench. None of them are immigration lawyers. So, the plea is arranged. A suspended sentence instead of jail time. Probation, a fine, some community service. Everybody is satisfied. The lawyer has done his client a good service. The district attorney has a guilty defendant. The judge feels that justice has been served.
The immigrant signs a document that says he “may” be deported as a result as his plea.
The green card holder walks out the courtroom with a feeling of relief. He can go back to work, support his US citizen wife and kids, and make sure to never break any more laws. But, along comes Immigration. They take him to jail. He is told that he has no right to bail. It’s not Immigration’s fault. They’re just following the laws that Congress wrote. Now what? His wife is home, alone with their children, She cannot take care of them and earn a living all by herself. She calls an immigration lawyer, seeking advice on how her husband can be released and be allowed to stay in the US. Then she discovers that he has no defense against deportation (They call it “removal,” but it’s the same thing).
The plea looked great on paper.
But the immigration laws are very tough. For the first time, the wife hears the expression: “aggravated felony.” This term includes a list of crimes that starts at letter “A” and goes all the way to “U.” Immigrants who plead to aggravated felonies are given an escort and a one way ticket back to their homeland. That would generally mean removal to a country where they have no family, no job waiting, nowhere to sleep. And a citizen spouse and kids back in the US. Two of the most common types of offenses that seem minor but are aggravated felonies are: possession of a small quantity of drugs with intent to sell, regardless of sentence AND a street fight or other single act involving violence, in which the plea was to a year in prison, even if the immigrant actually serves a few months and then is given time off for good behavior.
Up until recently it had been very difficult to reopen a criminal case to make a better deal for the purposes of stopping deportation. Now the courts have spoken. The U.S. Supreme Court, in Padilla v. Kentucky, decided several years ago, has said that immigrants must be clearly warned about the potential deportation consequences of criminal convictions. And in New Jersey, there have been three important cases which echo this decision. The bottom line is that criminal defendants born elsewhere should not just know their Miranda rights. They should know their Padilla rights. Talking to an immigration lawyer who is well versed in criminal alien cases, before going to make a deal, is about the best advice that I can give anyone.