What happens with my immigration status if I have been arrested by the police?
This is one of the most common questions that comes up when a person who is not a US citizen has any problem with the police or is arrested.
In general, any criminal charge, even if the person is not arrested and only receives a notice to appear in court, can have a negative impact in their immigration status. Criminal convictions can cause the Immigration Service to deny an application, start a deportation process, detain or arrest an individual, or make the person ineligible to apply for permission to remain in the U.S. If you are not a US citizen and you are facing criminal charges or have faced them previously, it is important that you find a criminal attorney experienced with immigration, to review your case.
While any criminal charge can cause immigration complications, there are two types of charges that require special attention, since they have the greatest negative impact on the immigration status of a person: “aggravated felonies” and “crimes of moral turpitude”. Section 101(a)(43) of the immigration law identifies as “aggravated felonies” serious crimes involving drugs, theft, acts of violence, and sexual assault, among others. Similarly, “crimes involving moral turpitude” are identified in section 212(a)(2) of the immigration law, and these include acts of dishonesty, fraud, as well as some crimes of theft such as shoplifting and some crimes of violence.
Though the definition of a “conviction” is clearly defined by the immigration law, a “conviction” may be defined differently pursuant to the state and federal criminal laws for non-immigration purposes. Section 101(a)48 of the immigration law, defines a conviction as:
1) A finding of guilt by a court or an admission to sufficient facts (admission to the facts of the crime), combined with
2) A restraint on liberty which includes probation, a fine, or a sentence (even if that sentence is suspended and you never go to jail).
Many states have dispositions available in criminal proceedings that appear as if they are not convictions. For example, in Massachusetts, a defendant may have a case Continued Without a Finding of Guilt (CWOF), which many people believe is not a conviction, however, that is not true for immigration. A CWOF is a conviction because the person makes an admission of sufficient facts and serves a term of probation.
Criminal proceedings are extremely complex and even if they appear at times to be simple, it is advisable to obtain the help of a criminal attorney with experience in immigration law, if you are not a US citizen. FitzGerald Law Company has been practicing immigration and criminal law for over 18 years and our successful track record in both areas of the law make us uniquely qualified to help individuals with complex situations involving criminal and immigration issues. If you would like to schedule an appointment with one of our attorneys, please call: 617-523-6320 (ext. 0) and it will be our pleasure to work with you.
Answers to Frequently Asked Questions related to criminal cases
- What happens after a person is arrested? Read the answer
- Does a person have to speak to the police after arrested? Read the answer
- What is the process after criminal charges are filed in court? Read the answer
- Can criminal charges be sealed in Massachusetts? Read the answer
- Can I change criminal defense lawyers if I am unhappy with the one representing me? Read the answer
- Should I represent myself in a criminal case? Read the answer
Below is a success story of one of our clients at FitzGerald Law Company:
Motion to Vacate Conviction and Reopen Criminal Case to avoid Immigration Problems
In 2006, our client “Manuel” was charged with operating a vehicle with a suspended license and waived his right to counsel with no idea how this charge could potentially impact his immigration status in the future. In 2010, Manuel was placed into removal/deportation proceedings before the Immigration Court and was ineligible to renew his Temporary Protected Status (TPS), as pursuant to the Immigration and Nationality Act, this conviction made him ineligible for TPS. After reviewing the client’s criminal dockets, Attorney FitzGerald noticed that Manuel had waived his right to counsel in one of the cases, but there was no indication that the waiver had been interpreted to the client in his language to ascertain he understood his rights and the consequences of relinquishing such rights.
After collaborating with the client to recall the events, collect all the relevant evidence in the case, and reviewing the Massachusetts practice and waiver of counsel rules, attorney FitzGerald determined that it was clear that our client had not understood his rights and filed a motion to vacate the conviction and reopen the case, which was subsequently approved by the Judge. A new hearing was scheduled (five years after the original disposition date) and attorney FitzGerald obtained a favorable disposition of license suspension case (the charges were decriminalized) which did not negatively affect Manuel’s immigration status. He now is eligible to present a TPS claim before the Immigration Court.
Thanks for being a loyal subscriber to our newsletter and remember we are here to assist you with any immigration, criminal or personal injury matter you encounter.
Desmond P. FitzGerald,
And the FitzGerald Law Company Team