By Parviz Malakouti-Fitzgerald, Esq.
Non U.S. citizens charged with a crime in the United States face a unique dilemma.
In addition to dealing with the criminal consequences of their arrest and possible conviction, these non-U.S. citizens have to deal with the possibility of immigration consequences such as removal, ineligibility for visas or re-entry into the United States.
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In other words, the stakes for immigrants in criminal law proceedings are even higher. However, fortunately, many U.S. states allow defendants in criminal proceedings to get a legal opinion letter (“letter” or “opinion letter”) to inform the court of these immigration consequences and possibly thereby obtain a better plea deal that helps the immigrant-defendant avoid immigration consequences.
Pending Criminal Charges in U.S. State Courts
In some U.S. states, prosecutors and judges must consider the immigration consequences of convictions when plea bargaining with defendants. If a certain conviction would cause a defendant, for example, to lose her green card, this consequence must be considered by the prosecutor. However, even in states in which prosecutors are not obligated to give consideration to immigration consequences, they may still do so, along with evidence of “positive equities”of the defendant.
In both cases, the immigrant-defendant can hire an immigration lawyer to draft a legal opinion letter in order to communicate the immigration consequences of different possible plea bargains being considered.
The legal opinion letter typically has a few sections:
An introduction stating the scope and purpose of the letter;
A “facts” section laying out relevant information about the defendant’s immigration status (or lack thereof) and his or her criminal charges;
An analysis section discussing what the immigraton consequences would or could be if the defendant is convicted of a certain criminal statute.
In an ideal situation, the immigrant-defendant’s criminal defense lawyer submits the opinion letter to the prosecutor or to the court, and succeeds in getting the more advantageous plea deal.
Pending Criminal Charges in California
Fortunately, California is a state in which the prosecution must take into consideration the avoidance of adverse immigration consequences for the defendant when plea bargaining. This means that the prosecutor should choose a plea that serves the interests of justice and avoids harming the immigrant’s immigration situation, when possible.
CA PC §1016.3(b) states:
(b) The prosecution, in the interests of justice, and in furtherance of the findings and declarations of Section 1016.2 , shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution.
Obviously, this doesn’t mean an immigrant-defendant gets automatic leniency. But this law could be the difference between an immigrant getting a plea deal that allows them to stay in the country and pursue legal permanent residency or citizenship versus a conviction that leads to deportation or another immigration setback.
As mentioned above, the defendant makes the prosecution and the court aware of potential adverse immigration consequences by getting a qualified immigration lawyer to write a short legal opinion letter. The letter explains the potential immigration consequences of the different pleas being considered. In these cases, it’s beneficial to have a criminal defense lawyer working hand in hand with an immigraton lawyer so that the opinion letter can be tailored to address the issues the prosecutor or judge wants to see.
In cases with immigrants facing criminal charges, we’ve been able to write several legal opinion letters that helped criminal defense attorneys obtain plea bargains for convictions with less damaging effects on the defendant’s immigration situation.
One common scenario, we’ve been able to assist in is that of DACA recipients charged with DUI (VC 23152), who have been able to reduce their charges to a wet reckless (VC 23103.5) with the help of a well written legal opinion letter. As of the writing of this article, the difference between these two convictions is the difference between being able to apply to renew DACA or not.
However, each immigration case is different and not all immigrant-defendants necessarily will be able to benefit from a legal opinion letter.
Americans Applying for 2nd Citizenship Elsewhere
Legal opinion letters can also be used successfully to bolster the case of an American applying for second citizenship elsewhere, such as Caribbean citizenship by investment in St. Kitts, Grenada, or citizenship by descent in a European country, such as Spain, Ireland, or Croatia.
In this scenario, the focus of the letter is different. First of all, these legal opinion letters are written after the conviction, when the American citizen is pursuing citizenship elsewhere. The focus of the letter is also different because the letter’s audience is a foreign immigration service, not a U.S. state court. For these American applicants, the goal is to convince a foreign country that the previous conviction should not disqualify the applicant from consideration.
Americans in this situation can also benefit from being screened by a qualified lawyer skilled in post-conviction relief to see if a previous conviction can be possibly dismissed post-conviction or at least expunged, i.e. “cleaned from a record.” In some cases, it’s possible to even get the American applicant’s FBI background check (“identity history summary”) updated to reflect the new disposition, or even possibly information about a vacated conviction removed from the FBI background check.
For more information on best practices in this scenario, find out how Americans with a criminal record can try to pursue second citizenship LEGALLY with full disclosures.
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The Importance of Timing
For non U.S. citizens charged with a crime in California, it is critical to not wait until after a plea bargain has been struck before contacting an immigration lawyer for help.
The immigration lawyer must be contacted and hired while the criminal case is still pending in order for a legal opinion letter to be of any assistance in obtaining a plea bargain that minimizes the chances of deportation or ineligibility for future immigration benefits such as a visa, green card or U.S. citizenship.
Unfortunately, sometimes we have immigrants come to us for an immigration consultation, who have already pled guilty to a certain charge without even an evaluation of the immigration consequences. They weren't aware of this law and how it could save them from pleading guilty to a deportable offense.
In these cases, the assistance of an immigration lawyer is limited to determining how the past conviction affects the immigrant’s immigration situation, and if any post-conviction relief might be available at that time or in the future.
Legal Opinion Letter FAQs
Q: Should I wait until my criminal proceedings are FINISHED before consulting with an immigration lawyer?
Absolutely not. Contact an immigration lawyer right away because once you’ve pled guilty and been convicted, the ways an immigration lawyer can help you become sharply limited.
Q: Can I rely on my criminal defense lawyer to advise me as to immigration consequences of a conviction?
No! Not unless your criminal defense lawyer is also an experienced immigration lawyer.
Q: Can a misdemeanor charge and conviction lead to me being removed (“deported”)?
Yes, potentially, depending on the precise charge and state in which you’re charged. The conviction doesn’t necessarily have to be a felony for it to be a “removable” offense.
Q: My criminal defense lawyer is trying to plea to the charge with the least punishment -surely that would also be the charge with the least immigration consequences, right?
No! Not necessarily. This is why an experienced immigration lawyer has to be consulted.
Q: Can an arrest without a conviction affect my immigration case?
Yes, absolutely. There are some grounds of inadmissibility (habitual drunkard, public safety, health-related) which do not necessarily require a conviction.
Consult With Malakouti Law
As the saying goes, “an ounce of prevention is worth a pound of cure”, so if you want to plan out the next immigration and citizenship steps for yourself and your family, you don’t have to guess.
Book a consultation with a qualified immigration lawyer who can answer your questions, including those you don’t even know you have.
The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Each immigration case is particular and you should consult with a qualified, licensed immigration lawyer about your case before taking any steps.