For an illegal or undocumented alien, sometimes the ramifications of a New Jersey arrest arising out of an alleged criminal act are more harmful than the penal consequences of the act itself. By this point, most if not all serious criminal defense practitioners are aware that non-US citizens need to be apprised of the immigration consequences before entering into a plea agreement or pleading guilty. This, of course, makes sense since some people unknowingly plead guilty to criminal offenses that render them deportable (and to make matters worse, subject them to mandatory detention) without fully appreciating the import of pleading guilty. The logic is that some of these people-had they been fully informed--may have elected to go trial rather than speed up their own removal. Padilla vs. Kentucky, the seminal and watershed Supreme Court case that defines the duty of criminal defense lawyers representing non-citizens, perceptively reframes the issue: it is not so much about the legal obligations triggered by collateral consequences but more about receiving effective assistance of counsel.
What people may not realize is that for some non-citizens, the damage has already been done by the time of the guilty plea. For aliens who are not already lawful permanent residents, especially those with no status or who have fallen out of status, the arrest may have already triggered the involvement of Immigration and Customs Enforcement (ICE). Under such circumstances, ICE may have already lodged an immigration detainer or may be actively monitoring the case, in some cases immediately taking custody of an individual literally the moment the court case is resolved. For people in this class, understanding the consequences of a criminal plea is not so much about avoiding deportation as it is about damage control.
Even if a criminal charge is ultimately dismissed or downgraded/amended to something that does not necessarily render an individual deportable, that type of disposition only addresses the criminal deportability issue. In other words, solving the criminal problem does not always solve the immigration problem. If an individual is out of status or determined to have entered the United States without authorization, he or she is still vulnerable to removal regardless of any criminal charges. A conviction only makes things worse and adds another potential ground of removability, as well as negatively influence any discretionary forms of relief, ie., the exercise of prosecutorial discretion to administratively close a case. So in many cases, the arrest exposes the individual to the Department of Homeland Security and alerts the government that the person may not be here legally. If not for the arrest, the alien would probably not be on DHS's radar.
For example, in New Jersey, pursuant to an Attorney General Directive, law enforcement are ordinarily required to notify ICE if they arrest an individual suspected of being undocumented or out of status for an indictable offense or Driving While Intoxicated (DWI or DUI). Once ICE latches onto that individual and pursues his/her removal, that person may be deportable regardless of whether the DWI or crime ultimately gets dismissed because that was never the core problem. The fundamental issue was that the person was here illegally or out of status.
Of course, things are rarely that simple. Just because an individual is deportable due to his/her status does not establish that he/she is removable. That is only the first part of the analysis. He or she may qualify for forms of immigration relief that may allow him/her to stay and ultimately reside here in the US.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the right. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.