Ron: There really is a balancing act between the criminal goals and the immigration goals. Number one, you want to minimize the criminal consequences of the case and you want to minimize the adverse immigration or other collateral consequences of the case. Minimizing the criminal consequences doesn’t need much discussion. That’s a normal goal of the criminal defense attorney in every case.
How Important Is It to Minimize Adverse Immigration Consequences?
Interviewer: What about minimizing the immigration consequences?
Ron: Well, for immigrants, adverse immigration consequences are frequently the most important consequence of a criminal case, often more important than the direct criminal consequences.
We spoke about that before, jail versus a lifetime sentence in my home country is more important than any of the other collateral consequences. So your defense counsel has an obligation to investigate and to advise the defendant concerning any consequences, as well as attempting to avoid these adverse immigration consequences.
What Can the Attorney Do to Minimize Adverse Immigration Consequences?
So, what can counsel do to try in order to minimize the immigration consequences? Here are a couple of ideas and this first may be difficult:
How about avoiding a conviction, if possible? We can’t ask for miracles from criminal defense attorneys, but that’s certainly the most obvious. The second might be minimizing the seriousness of the offense of the conviction. A number of immigration consequences depend on the maximum possible length of a sentence of imprisonment that can be imposed on account of a conviction. So perhaps the criminal defense attorney can get a sentence reduced and that may avoid deportation.
Avoid Sentence Enhancements and Minimize the Level of the Offense
Third, avoiding a finding of any sentence enhancements applicable to the criminal conviction. Fourth, minimizing the length of the actual sentence to incarceration initially ordered for the conviction.
Next, minimizing the level of the conviction. Now here, criminal defense counsel seeks to minimize this level because certain immigration consequences depend on whether the criminal offense is considered to be a felony or a misdemeanor.
Now, we don’t have felonies or misdemeanors in New Jersey, we have first, second, third, fourth degree offenses, which are considered felonies and then we have disorderly persons and petty disorderly persons, which would fit under the rubric of misdemeanor. That could change the immigration consequence.
Minimize the Restitution Order
Another step to take is minimizing the restitution order. If she or he is able to, criminal defense counsel can minimize the amount of restitution ordered as part of a sentence. This is something that can help.
The restitution ordered might have some relationship to the concept of the loss to the victim resulting from the offense of the conviction, which can have important immigration consequences if it exceeds $10,000 for an offense relating to fraud or deceit.
Minimize Imposed Fines
Minimize the fine imposed for the conviction. This sentence element doesn’t have any direct immigration consequences except that it may be considered a form of a penalty sufficient to constitute a conviction under immigration law. Then minimizing other direct and indirect criminal consequences of the conviction.
The Relationship Between Criminal Convictions and Immigration Consequences
Interviewer: Is it a surprise to a criminal defense attorney that immigration consequences come about from criminal activity? And if it’s a surprise, how do immigration consequences even come stem from a criminal conviction?
It Is Important to Remember That Immigration Law Is Governed Federally
Ron: Well, most of the immigration consequences of crimes are triggered by a criminal conviction that meets a certain description. These convictions may trigger a ground of deportation, inadmissibility, which we’ll talk about later on, or a bar to relief in immigration court. Federal immigration law, rather than the law of New Jersey or any other state, governs whether or not a conviction exists.
The general rule is that a deferred adjudication of guilt, such as a PTI or a judge not sentencing you, still constitutes a conviction for immigration purposes, that is if it meets the immigration law definition, even if it doesn’t meet the state law.
If the state doesn’t consider it a conviction, immigration might. There is a formal definition of conviction.
Basically it’s a finding of guilt, which can be based upon either a guilty verdict from a judge or a jury or the defendant enters a guilty plea and there has to be some type of sentence imposed. That could be level of sentencing. It could be a fine. It could be probation, any kind of restraint on the non-citizen’s liberty. That’s the definition of a conviction and that, 99.9% of the time, triggers the immigration consequences.
What is Categorical Analysis?
Interviewer: You mentioned the term “categorical analysis.” What is that?
Ron: Immigration authorities use a special form of analysis. It’s called the categorical analysis, and they use it to determine whether a criminal conviction will cause the non-citizen to fall within any of the conviction-based grounds of removal or trigger a bar to relief. Counsel can use this same analysis to identify or create a criminal conviction that will avoid the removability factor.
Without going into a lot of detail, I’ve laid out a flowchart as an appendix that you can look at and you’ll see how the analysis flows. Also, immigration authorities can sometimes go beyond the statute and look at certain documents, and they call that the record of conviction.
Immigration Authorities Can Incorporate Modified Categorical Analysis
This is called the modified categorical analysis, which is properly used when the statute has subdivisions. What do I mean by that? As a perfect example, New Jersey has a statute “endangering the welfare of a minor.” The first section deals with non-sexual type of endangerment and there’s another subsection that deals with sexual type of conduct. So in that case, you would explore this modified categorical approach to try to make sure that your client fits into the first subsection, as opposed to the second subsection.
Criminal Conduct Without a Conviction
Interviewer: So besides a conviction, are there other ways that immigration consequences relate to a criminal case?
Ron: There are additional ways. A relatively small number of immigration consequences are triggered by what we call “criminal conduct” even if a conviction does not result. These cases do occur few and far in between and usually result if the government has, let’s say, a reason to believe that you’ve been a drug dealer or they have a reason to believe that you’ve engaged in prostitution.
So conduct-based immigration consequences could flow from criminal conduct even though no criminal conviction has occurred.
