Pleading to a Lesser Charge: Potential Immigration Pitfalls

 Posted on March 17, 2017 in Immigration

If you have committed a crime, you ought to be aware (or become aware) that your actions have the potential to seriously affect your ability to stay in the United States, especially if you are undocumented or are present on a non-immigrant visa.

Normally, commission of certain crimes can render you deportable from the country, and many will come with a bar—a period of time where you must not re-enter the country.

However, in some cases, this may be avoided by making a deal or pleading guilty to a charge that will not render you deportable. Still, this can be a very complex undertaking.

The Process

If someone is found to have committed a crime, sentencing follows fairly quickly in the normal order of things. However, if the person is an immigrant, the judge must take into account the nature of the crime. There are two classifications—a crime of moral turpitude (CIMT) and an aggravated felony. A crime of moral turpitude (CIMT) is a crime that shocks the conscience of the public, while an aggravated felony is differentiated most often simply by the fact that its consequences are quite severe. If you commit either of these types of offenses, then you will almost certainly be held to be deportable.

In some cases, however, this outcome can be avoided but will depend on the nature of the crime and the punishment you received or will receive. It is possible, depending on the circumstances and the judge, to sometimes plead to a lesser charge with the express purpose of pleading to something which is not an aggravated felony or CIMT. For example, someone charged with theft might plead to a charge of retail theft (essentially, shoplifting), to avoid being charged with an aggravated felony. While in some cases retail theft may still be enough to necessitate a conviction, it may fall under the so-called petty offense exception, meaning you will not be declared removable.

Potential Problems

The difficulties with pleading to a lesser charge or pleading no contest are simple—it may not be enough to save you from being deported, but so many are unaware of this. Many laymen do not know, for example, that the Immigration and Nationality Act (INA) stipulates that a no contest plea or another type of plea that does not result in a conviction may still count as one for immigration purposes. This counts even if the plea is later withdrawn, or if a deal is cut to avoid jail time. Generally, if you make a formal plea of any kind, it is more likely than not that any kind of guilty plea will be considered a conviction under the INA.

It is also important to note that this strategy can prove problematic in the future, even if it may save you jail time in the present. A lesser charge is not necessarily a safe charge. If, for example, you plead guilty to unauthorized use of a firearm—as a step down from felony assault which is an aggravated felony—you are pleading to a lesser charge. Still, unauthorized use of a firearm may qualify as a crime of moral turpitude depending on the aggravating factors. Either way, you will likely be held removable.

Ask a Knowledgeable Attorney

If you need assistance or have questions about immigration with regard to criminal proceedings, an immigration attorney is your best possible resource. The skilled Chicago-area deportation defense attorneys at Mevorah & Giglio Law Offices are well versed in this type of law, and will be happy to assist you. Contact us today to set up an initial consultation.