To Plea or not to Plea. Immigration Consequences of Plea Bargains in Criminal Cases

Before I practiced immigration law, I was a criminal defense attorney. My practice represented retained defense clients, and I served as a de facto public defender in Gwinnett County, Georgia. At the time, two of Georgia’s largest counties, Cobb and Gwinnett (both in Metro Atlanta), did not have their own Public Defenders Offices. 

“Private defense attorneys would apply to take on cases for their county of practice as part of the Georgia Indigent Defense Committee. We performed valuable public service and gained great experience, especially as younger lawyers.”

Many of the top criminal attorneys in the state were part of this committee, and the most serious cases received experienced, high-quality defense counsel. 

Did you know that most criminal cases never go to trial, and the vast majority (well over 90%) are pled out? Plea bargains were a fun but challenging part of my job. I remembered Lt. Daniel Kaffee, Tom Cruise’s JAG defense attorney character from A Few Good Men, and I aspired to be like him. No, I never was the greatest trial lawyer, but I prided myself in my ability to negotiate and obtain quick and beneficial plea bargains for my clients.   

This is a good thing, right? Not always. I started to notice that a growing percentage of my appointed indigent defense work consisted of immigrants – and many were undocumented.  Most offenses were rather minor in nature, were usually misdemeanors, and generally were non-violent offenses involving drugs, alcohol, or others of a prurient nature. I soon learned I would have to slow down my plea process and consider a new factor in the analysis.  My clients who weren’t U.S. Citizens had to consider their immigration future in any plea deal.  

After I began practicing immigration law full-time, I realized some of the real flaws and concerns with plea bargains for non-citizen clients. Even if you are a green card holder or lawful permanent resident, any arrest or conviction could impact your ability to maintain or renew your green card. It could even affect your ability to apply for citizenship in the future. Curiously, even the highly experienced attorneys were not necessarily adequately informed about 1) the immigration consequences of plea deals or 2) how important it was to go over those possibilities with their clients.  

I’m not here to point fingers at anyone but to create a teachable moment. A defense attorney is supposed to analyze the case’s strengths and weaknesses and advise the client on the best course of action. We are trained in this discipline and are very good at this practice. However, through no fault of our own, we aren’t sufficiently trained in immigration law.   

Defendants should understand the consequences of their plea agreements, such as 1) voluntarily waiving their right to a trial and 2) voluntarily pleading guilty to an offense. Their attorney must review their legal rights and ensure they understand all the risks of such an agreement. The principle of plea bargains is “negotiation.” The state offers a “deal,” which is supposed to bring a lesser sentence or offense. In return, the state saves time, resources, and money by not having to try the case but still obtaining some level of punishment, probation, or fine.    

There is another important factor to consider that many defendants and defense counsel don’t necessarily fully contemplate, cover, or understand: The immigration consequences of any arrest, conviction, or plea bargain. Whether the defendant is in or out of status (or never had a status to begin with), any conviction or plea bargain can affect their current status or immigration future. 

Unless you are a U.S. Citizen, any arrest, conviction, or plea can influence your visa, green card, or ability to get a future visa, green card, or even citizenship.  Some convictions or pleas can even result in removal (aka deportation). 

I recommend that anyone arrested or charged with a crime who isn’t a U.S. Citizen should at least consider consulting with an immigration attorney. No, the immigration attorney isn’t generally going to represent you in your defense unless they are one of those hybrid “crimigration” attorneys who plan to play both roles. However, your immigration attorney can consult with or co-counsel with your defense attorney to make sure that you both understand the immigration consequences involved with any plea bargain.   

In my experience, not enough criminal defense attorneys emphasize or even fully understand the immigration consequences of a plea deal involving an immigrant client.  Yes, the plea the state offers may be beneficial and advantageous to your criminal case but not necessarily to your immigration future. A criminal defendant should weigh all factors before agreeing to any such deal.  Sometimes, it may be worth it to fight a charge, especially if you are innocent, rather than simply quickly “pleading out” to avoid jail time or to “put the case in your rearview mirror.”

Another helpful tip is to retain your own defense attorney (if possible) or request a public defender. If your employer “offers to take care of it” by having you sign some papers, they may not necessarily be acting in your best interest.  Your employer may want a case to go away, or worse, they may be covering up for some of their own acts or omissions. For all you know, you are taking the blame for something you didn’t even do or have knowledge about.

Remember, there are potential criminal and immigration consequences to any arrest or charge. Additionally, it is required for you to properly and accurately disclose any past arrests or convictions here in the U.S. or another country when you are applying for any U.S. immigration benefits. 

“If you are unsure of a past offense or how to present it on an immigration form, consult an experienced immigration attorney. Your attorney can only help you with your future if they are informed and educated about your past. It’s understandable to want to save money when applying for immigration benefits.”

However, if your case has complications, such as a criminal background or past immigration violations, you are best served to hire qualified legal counsel.

This article does not constitute a solicitation or provision of legal advice and does not establish an attorney-client relationship. The answers provided should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a suitably qualified attorney regarding any specific legal problem or matter on time.

About the Author:

U.S. Immigration Attorney Seth Finberg is a 2005 graduate of the University of Georgia School of Law. Seth is a member of the Georgia Bar, the American Immigration Lawyers Association (AILA), and serves on the Business and Investment Committee for the South Florida chapter of AILA.  Mr. Finberg is the owner and founder of South Florida based Finberg Firm PLLC and he represents clients nationwide and internationally in business, employment, and investment immigration. He can be reached by phone at (305)-707-8787 or by email at seth@finbergfirm.com or www.finbergfirm.com.