When Criminal Law And Immigration Law Collide

The question often arises: can a criminal conviction be a snake in the grass as far as your immigration status is concerned? The California Supreme Court recently considered this question in the September 11, 2013 case of People v. Martinez. In 1992, Mr. Martinez was arrested for and charged with possession of marijuana. He pled guilty and completed his probation without incident. Subsequently, he had the conviction expunged, and then married and had four children.

The problem was that, according to the record, no one advised Mr. Martinez that the criminal conviction could have immigration consequences. When he applied for an adjustment of status in 2008, his application was denied because of the criminal conviction — immigration authorities do not recognize expunction. ICE then promptly began deportation proceedings against Mr. Martinez.

Criminal Pleas and Unintended Consequences

The rule in California and elsewhere is that a plea is invalid if:

• The defendant was not advised of the immigration consequences of the plea.
• That failure of advisement created prejudice, and the defendant would not have pled guilty if properly advised.

It is so important to work with a California criminal defense attorney who sees the big picture and understands all possible ramifications of a criminal conviction. A criminal conviction for even minor offenses (Mr. Martinez’ conviction was based on about $8 worth of marijuana) can have serious implications for your immigration status. Some facts to remember:

• ICE only considers some offenses to be deportable. Your attorney needs to know which ones.
• The prosecutor cannot use your immigration status as a basis for the sentence recommendation.

The generic warning the State gives you — “this plea may have consequences on your immigration status” — is generic and almost worthless. At a time like this, you need specific and professional advice from a competent attorney before you appear before the judge.

At the Law Offices of Arash Hashemi, we provide clients with passionate and experienced representation. If you have been charged with a crime and would like to schedule an initial consultation with a lawyer at our firm, contact us by phone at (310) 448-1529 or contact us online. We promptly return phone calls and emails. Our office is conveniently located in the Westside Towers in West Los Angeles, within minutes of Santa Monica, Beverly Hills, and Westwood. We have flexible and weekend office hours, and we will visit you in jail to discuss your case.