Intersections Between Criminal Law and Immigration Law
I was in an Indiana courthouse for a pretrial conference in a criminal case. My client, a young, foreign man here on a temporary visa to go to school here in the States, was charged with a felony for distribution of cocaine and a misdemeanor for possession of marijuana. He also wants to eventually become an American citizen.
I opened the door to the conference room where I placed my client before talking with the prosecutor, and sat down across from him at the table inside.
“The prosecutor is willing to drop the felony drug charge so long as you plead guilty the to possession of marijuana, which is a misdemeanor,” I said.
“Okay, is that good?”
“Well, you won’t serve jail time since this is your first offence. In addition, you won’t be deported since you’re dodging the felony, and the misdemeanor contemplates marijuana of less than 30 grams, but—”
“That’s great!” he interrupted in an overjoyed tone.
“But you may be prevented from becoming an American citizen,” I finished.
His tone and demeanor quickly changed to panic. Criminal law has a tendency to bring about all sorts of emotions in people, almost all at once.
“Marijuana is considered a controlled substance. Immigration laws allow the government to exclude individuals from becoming citizens if they’ve ever been convicted of any law or regulation related to controlled substances. That’s not to say you’ll definitely be excluded, especially since this is a minor charge, but it is to say that you can be excluded.
“In addition, any criminal conviction can be considered a crime involving moral turpitude.”
“It’s basically a flexible character and fitness test that considers standards of justice, honesty, and whether you have good morals. Acts of baseness, vileness, or depravity in private and social duties are held against you. This conviction will be held against you, and may prevent citizenship as well.”
“So what are my options?”
“Trial is one, but, like all trials, it’s a coin flip. Your case presents circumstances where I can make decent challenges to the admissibility of the important evidence against you, which is why you’re being offered this plea agreement. But, if we go to trial, ultimately it’s up to the Judge to determine whether to allow that evidence for the jury to see. If the Judge allows that evidence in, then I may need for you to take the stand and testify in your defense—are you willing to go there, if need be?”
Much like our initial interview, there was a long pause after I asked this particular question.
I interrupted his thoughts, and said, “Maybe you should approach this problem by considering the consequences if you lose. If you lose, then, in addition to having a felony on your record, you’ll probably serve jail time. In addition, you’ll definitely be deported, which prevents you from being able to finish school here, and you’ll definitely be prevented from becoming a citizen.”
“What do you recommend?”
“I think you should take the offer. It’s a good deal, and you still have a shot at becoming a citizen, albeit somewhat attenuated.”
“What if I get married to an American citizen? Will that change things down the road?”
“Don’t count on it.”
“Okay, can I think about this?”
“Sure. . . .”