Interviewer: How does New Jersey State Law itself play into immigration?
Immigration Laws Are Usually Governed Federally
Ron: Immigration laws governing the deportation process are federal in nature and, of course, those laws have to be passed by Congress. Most aspects of immigration law are uniform, national, federal rules throughout the United States.
A State Conviction Can Initiate Deportation
State law does become important when analyzing whether a state conviction triggers a particular ground of removal. The law of the state in which that conviction was prosecuted must be considered and there are several elements or several aspects of that statute that you have to look at.
The first one would be the elements of the offense. The second one would be whether the offense is considered a felony or a misdemeanor. Then finally, what is the maximum possible sentence?
How Should a Defense Attorney Verify a Client’s Immigration Status?
Interviewer: You said the criminal defense attorney has to obtain exact information on the client’s immigration status. How is the easiest, most expeditious way to verify that information?
The Defense Attorney Must Identify Whether or Not The Client Is a U.S. Citizen
Ron: Certainly the most important initial source of information is going to be the criminal defense attorney’s client. The information obtained from the client should be corroborated and verified, if it’s possible, by any type of official or any other source of information. But the first thing that they need to do, and this sounds obvious, but the first thing is to identify whether or not their client is actually a United States citizen.
If Deported, the Client Might Face a Life Sentence in Their Home Country
So the criminal counsel, of course, is going to conduct the normal criminal defense investigation of the pending criminal case. If the client is not a U.S. citizen, the potential consequences of a conviction include not only the direct penal consequences but also the often far more important immigration consequences. The consequences might include whether or not someone could be sentenced to a lifetime back in their own country.
A defense attorney has to ask each client whether or not he or she is a United States citizen. The defense attorney can ask where they were born. The arrest report will often indicate the defendant’s place of birth.
The Steps to Becoming a U.S. Citizen That Your Client Must Have Completed
If they were born in another country, they can become a United States citizen, only upon completing the full naturalization process. To become naturalized, the individual must complete an application and interview. Once approved, they take an oath of United States citizenship. You have to make sure that these events actually happened before you accept the client’s quick, “Yes, absolutely, I am a citizen of the United States.”
Now, certain persons can be denaturalized. They can lose their citizenship. And, if so, they are returned to the status they held before that naturalization process that I just explained. Subsequently, the removal proceedings can be commenced, as with any other non-citizen, if a ground of removal can be established.
If Your Client Is Not a Citizen, They May Still Have a Lawful Presence in This Country
There are investigation goals when the client is not a U.S. citizen. As counsel, your basic investigation goals have to include determining the exact immigration status of that non-citizen client and then obtain information on the client’s equities.
What do I mean by that? Well, how long has the client lived in the United States? Do they have a lawful presence here, meaning do they have a green card? Will they be able to keep that status if there’s a criminal case? Are there any close relatives who live in the United States now or who lived here lawfully for a long period of time?
The Defense Attorney Needs to Identify the Client’s Wishes Regarding Sentencing in This Country Versus Their Home Country
Another aspect is obtaining information on the client’s criminal history. The defense attorney needs to determine the relative importance of immigration versus criminal defense goals to the client. What I mean by that is, a client may decide that they don’t want to spend 10 years in prison here and they would much prefer to be deported. On the other hand, that same client may prefer to spend a period of time here in jail versus a lifelong sentence in their country.
The Defense Attorney’s Role Includes Advising The Client on How to Respond to Questions
The criminal defense attorney’s role includes advising the client on how to respond to questions from authorities regarding immigration status. In other words, don’t say anything. Don’t admit anything, especially, if ICE is questioning him or her.
The Defense Attorney Can Consult a Crimmigration Attorney for an Analysis of the Situation
The investigation has to be complete and counsel has to have sufficient information so that immigration counsel, the crimmigration attorney, so to speak, can start to analyze the situation.
Most Often, the Client Is the Defense Attorney’s Best Source of Information
Interviewer: Can you provide a few examples? It seems as if this process could be a lot of work in unfamiliar areas for the criminal defense attorney. What are some places or examples of places they can go to learn about someone’s immigration status?
Ron: In order to determine somebody’s immigration status, the best source, as mentioned before, is going to be the client.
Interviewer: You mentioned the necessity of corroborating this, so should a criminal defense attorney just say, “Can a crimmigration attorney help me verify this information?” Or should they do it themselves? Can the attorney corroborate and verify info that the client has told them verbally?
Ron: In the case of perhaps a younger defendant, the criminal defense attorney would want to speak to their parents. In a situation involving an older defendant, you may encounter issues of whether or not the defendant’s parents had naturalized before the defendant turned 18 years old.
By Consulting a Crimmigration Attorney, Defense Counsel May Discover That the Client Is a Naturalized Citizen
So in that case they should reach out to an immigration attorney because that immigration attorney will be able to determine, by operation of law, as to whether or not their client has become or obtained the status of a U.S. citizen or is a naturalized citizen.
