As the election results are finished being tabulated, I have already had a number of people call and ask how potential changes to immigration policy will impact criminal law.
First, immigration has always impacted criminal law.
A person's immigration status as a legal alien could be impacted by a felony conviction or other convictions, such as Operating a Vehicle Under the Influence (OVI / DUI) or misdemeanor Domestic Violence. If a person was convicted of such an offense, their continued immigration status could be impacted. The impact could even include not having immigration (Green Card) status renewed or revoked.
If a person was in the country without documentation -- also known as an illegal immigrant -- Immigration and Customs Enforcement (ICE) could place what is known as a 'detainer' on the person. This meant that local law enforcement could not release the individual from a jail or prison without first allowing ICE to pick the person up and subject them to removal.
In my twenty-three years of experience as an attorney and prior years working in and around the criminal justice system, the risk of an individual being deported based on an ICE holder was determined on a case-by-case basis. This went for immigrants convicted under both Republican and Democratic administrations, and was largely dependent on factors such as the person's criminal and immigration history; the nature of their current criminal charges; and family-related factors.
There were people we thought would be deported who were not -- and there were people who we did not believe would be deported who ultimately sent to their home countries.
How will changes in immigration policy impact undocumented aliens who are arrested? No one knows.
Anyone who tells you that they know how immigration will be impacted by the new Presidential Administration is merely speculating. While there have been a number of statements, the reality is that until policies are officially in place, it is merely speculation.
There are some potential administration officials who pledge to deport undocumented individuals immediately upon arrest. This would cause a huge issue for state and federal court systems, who would thus be unable to prosecute those individuals for crimes committed in their jurisdictions.
There are some potential administration officials who have pledged that undocumented individuals could be arrested upon any contact with police. These people believe that law enforcement should require citizenship or other proof upon any contact with law enforcement. If this happens, witnesses and victims of crime could be scared to cooperate with law enforcement, which would make it harder for police and prosecutors to pursue criminal charges.
There are also some officials who are raising concerns about the cost of proposed immigration reforms -- and others who are questioning the overall impact on America's economy and families if undocumented immigrants are to be deported en mass. As such, there are no certainties as to how immigration policy will be impacted -- or which criminal offenses will be targeted for automatic deportation versus
As with before, any non-citizens need to consider immigration ramifications when dealing with the criminal justice system.
Even before the risk of changes to current United States policies, anyone dealing with the criminal justice system should consider the ramifications of an arrest, plea, or conviction on their immigration status. In many cases, if I am dealing with a client who is in the United States under either documented or undocumented status, I will consult with an immigration attorney to determine the ramifications on plea agreements. This gives us some guidance -- but not guarantees -- on the impact of their pleas or convictions.
Even if a person is in the United States as a legal alien (i.e. Green Card, student visa, work visa), the individual should consult with an experienced attorney before entering a plea -- even for minor offenses such as Disorderly Conduct, OVI / DUI, or petty theft.
If you need an experienced attorney in your corner while facing criminal charges and a potential immigration issue, please do not hesitate to contact VanHo Law.