Criminal Defenses for Immigrants
What are Some Criminal Defenses for Immigrants?
For an immigrant, facing charges can present serious legal difficulties. Generally speaking, the main concern is whether the immigrant will face removal (deportation) as a result of the criminal charges. In some cases, a criminal defense may be available for the immigrant, as criminal and immigration laws tend to overlap. Some possible defenses for immigrants can include:
- Standard criminal defenses: These may include defenses that are specifically related to the charges, such as self-defense, defense of property, duress/coercion, alibi, mistake, etc.
- Challenging the Criminal Charges: Oftentimes the charges brought against an immigrant by the Department of Homeland Security (DHS) may be wrong or erroneous. If it can be proven that the charges are wrong, or that the charges can’t be proven, it could serve as a defense for the immigrant.
- Cancellation or Suspension of Removal: Cancellation/Suspension of removal may be available for certain immigrants, such as those who have been victims of domestic violence. There are several eligibility requirements that must be met in order to qualify for cancellation of removal. These can include having a record of “good moral behavior”, and having no prior charges on one’s criminal record. In some cases, a removal hearing can be suspended if the immigrant is currently involved in a different lawsuit.
- Waiver: Some immigrants may qualify for a waiver, which is similar to a “pardon” in other criminal contexts. Waivers may be available for certain offenses such as unlawful presence in the U.S., fraud, and crimes involving misrepresentation. To qualify for a wavier, the immigrant must pass a series of balancing tests where an immigration judge will weigh the positive aspects of the immigrant’s life against the seriousness of the criminal charges. Waivers may be necessary for immigrants seeking adjustment of status.
Also, it’s important to understand how pleading can affect an immigrant’s chances of being deported. In an immigration context, pleading “no contest” can sometimes be considered an admission of guilt. Therefore an immigrant who pleads no contest to criminal charges can possibly face immediate deportation. Thus, it may be necessary to consult with an immigration or criminal lawyer for assistance with defenses and pleadings.
Are There Any Other Options for Immigrants Facing Removal?
Besides standard criminal defenses, an immigrant who is facing criminal charges may have other options available to help them prevent removal. These can include:
- Adjustment of Status: Adjustment of status may allow some immigrants to receive protection against removal. An application for adjustment of status that has been denied can often be subject to appeal for further approval. Again, the immigrant needs to meet certain qualifications, such as having a clear criminal record or having a history of being a victim of domestic violence.
- Asylum or Withholding of Removal: Some immigrants may be eligible for protection under asylum laws if they have a fear of returning to their home country due to political persecution. Again, a judge would have to weigh the criminal charges against their eligibility for asylum. There are also various requirements for asylum, such as being in the U.S. for less than one year. On the other hand, even if the person doesn’t qualify for asylum, they might still be considered for withholding of removal if they fear a return to their country.
- U Visas: “U” category visas are reserved for non-citizens who have assisted law enforcement authorities in the investigation or prosecution of a different crime. An immigrant who faces removal may be able to apply for U visa, and may even be able to apply for permanent resident status in the future if they are granted a U visa.
- Voluntary Departure: This is not technically a criminal defense, as the accused person chooses to leave the U.S. on their own before removal measures are enforced. However, accepting voluntary departure as an option can sometimes make it easier for the non-citizen to return to the U.S. later on in the future.
Should I Contact a Lawyer for Help With Criminal Defenses for Immigrants?
Immigration and criminal laws are often subject to frequent change, especially with regards to removal and deportation. If you or a loved one is facing criminal charges it’s to your advantage to hire a qualified immigration lawyer in your area. Experienced immigration attorneys have knowledge of both immigration and criminal laws. Your lawyer can assist you in raising a defense against removal or other immigration consequences.
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Last Modified: 05-01-2012 11:33 AM PDT
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