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  • Illegal Immigrant Rights: Can They Be Represented By Criminal Attorneys?

    Posted on by JACK MKHITARIAN

    Illegal immigrant behind bars.Yes, an illegal immigrant can retain an attorney to represent them, at least in criminal proceedings. In a criminal proceeding, illegal immigrants enjoy the same right to counsel as US citizens.

    However, special circumstances often apply to illegal immigrants because a criminal conviction can seriously affect their immigration status. So if you are an immigrant who is criminally charged, you need a criminal charges defense attorney who is well-versed in illegal immigrant rights.

    Your Sixth Amendment Right to Counsel

    The Sixth Amendment to the US Constitution applies throughout the United States. It guarantees everyone the right to a lawyer to defend them against criminal proceedings in which incarceration is a possible penalty. This right applies even if the defendant cannot afford to hire an attorney. If you cannot afford an attorney, the government will appoint a public defender to represent you.

    The Sixth Amendment also grants a criminal defendant the right to the effective assistance of counsel. An ineffective lawyer violates a criminal defendant’s right to counsel. In such cases, a defendant convicted of a crime can seek to have their criminal conviction overturned. They can seek a new trial based on a claim of “ineffective assistance of counsel.”

    Special Considerations for Illegal Immigrants: What Your Lawyer Needs to Know Before Representing You

    The Sixth Amendment requires a criminal charges defense lawyer to accurately explain the immigration consequences of a criminal conviction. They must also keep the defendant informed throughout the entire prosecution process. Accepting a plea bargain and pleading guilty to certain crimes might trigger deportation proceedings.

    Following is a list of the kinds of crimes that can trigger deportation proceedings:

    • A conviction of a crime of “moral turpitude” that the defendant committed within five years after the defendant’s arrival in the United States. Such a crime will only trigger deportation proceedings if the court sentenced the defendant to incarceration for at least one year.
    • Two or more convictions for crimes of moral turpitude.
    • Conviction of an “aggravated felony”.
    • A conviction related to a controlled substance (illegal drug), except for conviction of possession of less than 30 grams of marijuana. For instance, your plea bargain for cocaine possession may keep you out of jail, but it also could trigger deportation proceedings.
    • Conviction of certain firearms offenses.
    • Convictions for domestic violence, stalking, a crime against a child, or violation of a restraining order.

    With some crimes—such as crimes of moral turpitude—the defendant can trigger deportation proceedings with a simple admission of guilt, even without a conviction.

    What Is “Moral Turpitude”?

    Moral turpitude is a relatively subjective concept. US law defines it as “fraud, larceny [or the] intent to harm persons or things.” Although crimes such as murder and forcible rape are certainly crimes of moral turpitude, other crimes such as DUI sit on the borderline. A skilled lawyer might successfully argue that a particular crime does not constitute a crime of moral turpitude.

    What Is an “Aggravated Felony”?

    An aggravated felony can trigger deportation proceedings even if it does not qualify as a crime of moral turpitude. In practice, many crimes are both aggravated felonies and crimes of moral turpitude. Some aggravated felonies, however, are not crimes of moral turpitude.

    The definition of “aggravated felony” for immigration purposes is highly counterintuitive. In fact, there is no clear definition. Instead, an aggravated felony for immigration purposes is any crime that immigration authorities classify as such. The crime does not have to be a felony, or aggravated under general law to classify as such for immigration purposes.

    However, as a general rule of thumb, if a judge can sentence you to prison for at least a year, the crime is probably an aggravated felony. This principle applies and can trigger deportation proceedings even if the defendant’s actual sentence was less than one year in jail (or no jail time at all). So for instance, suppose you are an illegal immigrant and you are charged with domestic violence that carries a potential sentence of a year in jail. Even if the judge only sentences you to one month incarceration, you may still face deportation.

    Conviction of a Lesser Crime

    Immigration authorities might initiate deportation proceedings against a criminal defendant who is an illegal alien even if they committed a minor crime. The defendant’s main advantage in such cases is that they have a fighting chance to remain in the US.

    Illegal Immigrant Rights: Can They Be Represented By Criminal Charges Attorneys in Immigration Proceedings?

    Immigration proceedings include matters such as deportation, removal, asylum decisions, etc. US law treats immigration proceedings as administrative proceedings, not criminal proceedings. That may sound strange since pending deportation, the government can incarcerate you in an immigration facility that feels an awful lot like a jail. US law allows you to have a legal practitioner represent you in immigration proceedings if you can afford to pay one, or if you can convince one to represent you free of charge.

    However, with or without a lawyer, you do not enjoy nearly as many rights in immigration court as you do in criminal court. Some of the differences include:

    • You do not have the right to a trial by jury.
    • You do not benefit from the high “beyond a reasonable doubt” standard that applies in criminal proceedings. Immigration officials only need to prove that their claims (that you are eligible for deportation, for example) are more likely than not to be valid.
    • Immigration judges are typically more reluctant to offer bail than criminal court judges.

    Act Decisively一Don’t Wait Until It’s Too Late

    It is extremely difficult to face both immigration uncertainties and criminal charges at the same time. The criminal charges defense attorneys at New Mexico Criminal Law Offices have more than 20 years of experience fighting for the rights of criminal defendants in just about every area of criminal law. We have represented many defendants who did not have legal immigration status. Call us at (505) 200-2982 or contact us online for a free case evaluation.