Crime and Punishment

By: Aurora Vega-Buzon, Esq.

If you are not a United States citizen, and you commit a crime or admit to acts constituting a crime, you may be deported, regardless of whether (1) you completed your sentence and/or you paid the fine; or 2) the crime is merely a misdemeanor; or (3) the crime happened 10 years ago. Deportation is a separate consequence from - and in addition to - the criminal penalty imposed and/or already served.

Consider this: Tony steals a loaf of bread from a bakery, and Johnny steals a similar loaf of bread but punches a store clerk in the process. Under criminal laws, Tony's punishment is lighter than Johnny's punishment. This is what we call "proportionality" - the severity of a punishment fits the gravity of the crime. However, under immigration laws, this proportionality concept is skewed against a non United States citizen.

If Tony is a United States citizen (USC), and Johnny is a Lawful Permanent Resident (LPR), the consequences become exponentially harsher for Johnny, who may? be deemed deportable for (1) stealing, and (2) hitting a person in the process of stealing. Some crimes will , with certainty, make even a long-term LPR become deportable. Johnny, the LPR, was convicted of a misdemeanor battery and misdemeanor petty theft, and sentenced to probation and community service sentence for 3 years, which he completed. Five years later, he travels outside the United States for a vacation. Upon his return, the California Border Patrol (CBP) at Los Angeles International Airport brought him into a room and served him a Notice to Appear (NTA), placing him in removal (deportation) proceedings, alleging that he is inadmissible based on the commission of the 2 crimes he committed 5 years ago.

Pleadings and Records of Conviction. The Immigration Court is permitted to review, in removal proceedings, only a narrow, specified set of documents regarding Johnny's conviction. This is what is called "record of conviction" and is limited to only the following: the charge/s or complaint or indictment; a signed plea agreement or the transcript from the plea proceedings; jury instructions; and the judgment of conviction.

What a non-citizen pleads to is very important. The public defender or defense counsel should ask Johnny if he is a USC or an LPR, and at the very least consult with an immigration attorney regarding possible immigration consequences that might or will result from making a plea of "guilty" or "nolo contendere" (no contest). Johnny should make it known to his defense counsel or public defender that he is an LPR and not a US citizen, and must be fully informed of the consequences of his plea before signing the plea agreement.

The consequences of an ill-informed or ill-advised plea and possible removal arising from such plea, are drastic and disastrous, potentially divesting a non-citizen of his LPR status and taking him away from his family and loved ones in the United States. As noted by the U.S.Supreme Court in the landmark case of Padilla v. Kentucky, "deportation is a 'particularly severe penalty,' not a mere collateral consequence of the criminal conviction."

In order to avoid the harsh consequences of removal as a result of a plea and criminal conviction, it is best that once criminal charges have been filed, a non-US citizen should - and before making a plea - immediately consult with an immigration practitioner regarding the consequences of making a guilty or no contest plea, and possible removal (deportation) after his criminal case is completed.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277;
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