Arrested and Not A Citizen_ Know Your Rights (3)In the wake of protests and the strain placed on the economy because of the coronavirus (COVID-19), many people have found themselves the subjects of arrests and criminal prosecution. Being arrested and/or charged with a crime can have serious effects on your future.  If you are not a citizen, it can affect your ability to remain in the U.S.  Whether you are undocumented or are a holder of a non-immigrant visa or green card, being arrested and/or charged with a crime can render you inadmissible to becoming a citizen or place you in the category of deportable.

If you are undocumented, simply being arrested places you in peril of being deported. This peril is real whether you have been arrested or not.  However, even if you are a holder of a non-immigrant visa or a green card, simply being arrested can also put you in jeopardy of being deported, if the charge is deemed “a crime of moral turpitude” (“CMT”).  It doesn’t matter if the charge is a felony or a misdemeanor. In fact, it doesn’t even matter if the charge or charges are ultimately dismissed.  As a result, if you are arrested and are not a citizen you need to know your rights and obtain the best possible resolution to prevent deportation.

Crimes of Moral Turpitude

Criminal cases that result in the deportation of a holder of a non-immigrant visa or green card usually are the result of CMT’s.  Although there is no specific crime entitled “crime of moral turpitude”, the U.S. government has left the definition up to interpretation by the courts. Among the many specific offenses that the U.S. government and courts have determined to be CMT’s are:

  • murder;
  • voluntary manslaughter;
  • involuntary manslaughter, in some cases;
  • rape;
  • spousal abuse;
  • child abuse;
  • incest;
  • kidnaping;
  • robbery;
  • aggravated assault;
  • mayhem;
  • animal fighting;
  • theft;
  • fraud; and
  • conspiracy, attempt, or acting as an accessory to a crime if that crime involved moral turpitude.

As you can see, the crimes that constitute CMT’s are quite expansive.  Moreover, in many instances a CMT is given broad interpretation in its application and can survive even when the underlying charge is dismissed.

Dismissal of Case Does Not Always Prevent Deportation

In making the determination of whether a criminal case involves a CMT, immigration does not only look at whether the case resulted in a conviction.  In fact, even if your case is dismissed, immigration has the authority to look into the “facts and circumstances” of the arrest. If the arrest itself is deemed to involve a CMT that can be enough to jeopardize your status.

For example, if you initially pled guilty at a criminal court hearing, but the court later vacated the guilty plea and dismissed the case due to completion of some kind of rehabilitation or diversion program, the dismissal is not considered a true dismissal for immigration purposes.  Immigration will look at the facts and circumstances of the arrest, including the fact that you pleaded guilty to a CMT. Moreover, the fact that you entered into a substance abuse program can lead to additional problems.

For example, arrests for certain drug offenses or driving under the influence are often resolved with a negotiated plea that include the completion of a substance abuse program. Under 8 U.S.C. 1227(a)(2)(B)(ii), a green card holder who, at any time after U.S. admission, that has been deemed a drug abuser or addict can be placed into removal proceedings and deported. No actual court conviction is required under the law.

What Should You Do?

Know your rights!  Whether you are undocumented or the holder of a non-immigrant visa or a green card, if you are arrested you should remember that you have rights.  You have the right to remain silent and the right to an attorney. Accordingly, the first step you should take if you are arrested and charged with a crime is exercise your rights to remain silent and to not be questioned without an attorney who represents you. Law enforcement is required to advise you of these rights before questioning you, but these rights exist and can be invoked by you even if law enforcement does not advise you of such.

The next step you should take is seek the advice of an experienced criminal defense attorney who understands the effects on your immigration status. This should be done at the earliest stage, even before the arraignment if possible. The results of all criminal prosecutions are determined by the facts and circumstances of your specific case and the skill and experience of your defense attorney.

If you or someone you know has been arrested in New York call the Law Office of Kevin J. Deloatch, Esq. at (646) 792-2156. The office has an extensive criminal law practice. The outcome of a criminal case is often determined by what occurs at the beginning stages of the prosecution. Call today for a free consultation.