It Is Best NOT to Contact a Federal Office to Determine your Client’s Citizenship Status
Interviewer: For instance, should they contact the Office of Homeland Security or should they call ICE?
Ron: They certainly don’t want to reach out to immigration authorities to determine what their client’s legal status is. This is because there is the potential for removal. In contacting a federal office, the criminal defense attorney may, in fact, be shooting up some type of a flare, notifying the immigration authorities that this particular person is in an undocumented status. Presumably, they’d have to give a name or an alien number, and you don’t want to give that information to those types of authorities.
Interviewer: So it sounds like it’s very hard to corroborate any of this without causing further problems.
Ron: Well, I think most criminal defense attorneys would say that they get 90% of the information from their clients, assuming that they’re not dealing with juveniles. Most defendants don’t have a reason to lie with respect to their status here in the country to their criminal defense attorney or immigration attorney.
Advice for the Defense Attorney: Some Clients Are Unaware of Their Citizenship Status
It is possible that they may not understand whether or not he or she is a U.S. citizen, such as in the cases that I just explained. Somebody that’s under the age of 18, if their parents have naturalized, by operation of law, they’ve naturalized. They may not understand the fact that having a U.S. passport makes them a U.S. citizen. So it is difficult.
The Defense Attorney Must Analyze the Consequences of a Plea Bargain and a Conviction for the Client
So one of the other factors we were focusing on is we have to make sure that the criminal defense attorney takes a look at each significant criminal event. By that I mean, each offense, the plea, the sentence, all of those factors have to be examined to determine what, if any, immigration damage may ensue by a conviction.
Most of the adverse immigration consequences of crime are triggered upon what’s known as a conviction. There are a relatively small number of immigration consequences that are triggered by criminal conduct, even if no conviction results.
To Determine a Client’s Citizenship Status, Ask the Following Questions
Interviewer: The question that is coming to my mind is this: if I’m reading this book and I’m an attorney, you are advising me to ask my client about their immigration status. I ask them but what if they’re lying or what if they don’t know even what they’re saying? How do I corroborate this? Or are you trying to tell people, “You’ve got to corroborate everything, but it’s so tricky, so you’d better just call an crimmigration attorney?”
Ron: You’ve got to start with your client and there’s no reason in the world why your client would lie to their criminal defense attorney about their immigration status.
Interviewer: I imagine they are scared and they probably DO lie sometimes. If I was scared, I might lie to everybody!
Ron: But then there are other options. I can ask you for a green card. I can ask you where you were born. Because once I discover you weren’t born in the United States, that should trigger a red flag and I think, “Okay. This person is probably not a U.S. citizen.”
So, if they tell me they were born abroad, my next question is, “Okay. Do you have a green card?” If they say no, “Do you have any type of visa, any work authorization?” If they say no, I know that they’re undocumented.
