Criminal Charges and How They Effect Immigration Clients
Immigration law is a complex and rapidly changing area of law. Attorneys who practice it every day often struggle to keep up with the constant changes so it is not surprising that most criminal defense attorneys often find themselves stumbling in the dark when it comes to these issues.
While the only way to truly understand the nuances of a particular area of law is to practice it, there is one area where criminal attorneys can change the way they do things and by doing so drastically benefit their clients – how we deal with first offender and/or differed dispositions.
The most common first offender disposition we see every day is in the context of possession of marijuana first offense. Often this first offender program is entered into in one of three ways:
- Pleading guilty and the court withholding a finding;
- Pleading nolo contendere and the court withholding a finding; and
- Pleading not guilty but stipulating that the evidence is sufficient and the court entering a finding.
Often attorneys will choose option (2) or (3) and think that they have done what they can to protect their client's immigration status. Unfortunately, as far as immigration court is concerned all three of the above options have the same ultimate outcome – a finding of guilt by the immigration court.
In immigration court a client is considered to have been found guilty of an offense if they entered either a guilty or nolo contendere plea, or if there was a stipulation to the evidence being sufficient and the client was placed on a period of supervision. What this means is that all of the previously mentioned options for entering a first offender program still subject the client to the same negative immigration consequences he would have faced if he had pled guilty and convicted.
So, what is a defense attorney to do? Well there are two options:
- First, plead not guilty have a trial and ask for first offender at the end. This way there is no guilty plea or stipulation to the evidence. However, you may find yourself in a situation where your client is facing multiple charges and the Commonwealth Attorney won't drop the other charges if you make them go to trial on the possession charge.
- Well this brings us to our second option: plead not guilty, and do not object to the Commonwealth's proffer. In this scenario the prosecutor on your case can literally stand up and say, “On January 1, 2019 Defendant X was in possession of Marijuana, and all of this happened in X County.” This option adds virtually no additional work for the prosecutor and still protects your client's immigration status. In this last option there is no guilty plea, no stipulation to the sufficiency of the evidence, and you are also not forcing the commonwealth to go to trial and thus hopefully still able to get the benefit of the offer you were seeking by entering into first offender in the first place.
Both of these last two options will protect your client's immigration status from the negative effects of being considered to have a conviction for possession of marijuana, as well as any other differed disposition or first offender programs available.