Interviewer: What are the most common misconceptions that your clients have that you have to dispel when it comes to US Immigration?
Brian Geno: I think the one I run into the most is when a person thinks that they can plead guilty to a crime that they don’t think it has any immigration consequences. So, they’ll have, for example, a possession of Marijuana charge and they’ll think, “Well, that affects me for immigration purposes”, and so they will instead plead guilty to possession of paraphernalia because after all, paraphernalia is not a drug. Paraphernalia, under the immigration law, is much worse than possession of Marijuana and so, they’ve made the wrong step of trying to avoid an immigration problem and then they walk right into it. That’s just one example because it happens all the time. For example, a person will have a temporary restraining order and they will agree to enter a permanent restraining order so that they don’t get convicted of assault not realizing that the assault, by itself, may not have given you a problem at all but the restraining order does for immigration purposes.
A Lot of Criminal Defense Lawyers Have Misconceptions Regarding What they Can or Cannot Plead to in the Context of Immigration
There are lots of examples just like that. And so, the misconception is that they can, by logic, figure out what they can and can’t plead to. A lot of criminal defense attorneys have misconceptions about stuff like that too. They’ll say, “Well, if the person didn’t go to jail for a year, they’re okay”, and that has a very little to do with it. That’s just one factor among many, many and they’ll wind up causing their client to be deported. I actually recently had a case where a client was deported or she was in the process of being deported and would have been deported because she pled guilty to larceny but the sentence she took was a year in jail.
Pleading Guilty to a Crime Involving Lengthy Sentences Has Adverse Effects on Immigration
The sentence itself was too high for her to remain in the country if her attorney had just reduced it somewhat or talk to a person like me, he could have avoided that all together, so I had to get involved and have the sentence reduced so that she wouldn’t be deported. And once we fixed that, she was able to stay. She had her family here, her husband and her children, all would have been left here without her. The same thing happened the other day with a larceny case where we got it changed to trespassing so that she could avoid the consequences of the larceny that she had. So, it was another misconception about what she could and couldn’t plead to.
The Effect of a Criminal Conviction on a Foreigner in the United States
Interviewer: How would a foreigner be affected by a criminal conviction?
Brian Geno: The question is made up of two parts. First, “What is a foreigner?”, because it’s different for immigration purposes. Certain foreigners are much more vulnerable than others. If a person is a permanent resident of the United States, they could be considered a foreigner all the way down to the illegal alien being a foreigner. An illegal alien, a criminal conviction may simply just be how they got caught but they wouldn’t need to have a criminal conviction to be deported. Of course, a criminal conviction to an illegal alien really makes them look bad so they could be thrown out anyway and now, they’ve got a DWI conviction or a petty larceny conviction or something like that.
A Criminal Conviction Can Cause an Immigrant to Become a Deportable Individual
So, it really makes them vulnerable but going to those people who do have the legal right to be here, whether it’s temporary or not, a criminal conviction can make them deportable, so depending on what the crime is, they can actually get deported just because of that conviction or they might get convicted because of that conviction based upon a number of factors. So, a permanent resident is the most safe although still somewhat vulnerable. If within the first five years after they have been admitted into United States, if they commit a crime involving moral turpitude or an aggravated felony, they are likely to be deported. If a permanent resident has been here more than five years before they commit the crime, then they have a much better chance of being able to defeat it.
A Crime Involving Moral Turpitude Within the First Five Years Makes an Attorney Unable to Cancel a Deportation
The reason why is because a crime involving moral turpitude within the first five years is something that makes them unable to cancel any deportation that’s happening. It also is something that, if they’ve been here less than five years, can be considered something that prevents them from being considered a person of good moral character. Those are things that you need to stay and you need to change to something new like a citizen. So, that’s how a criminal conviction would affect a foreigner if he’s a resident. Now, if he has what they call Temporary Protected Status or TPS, that person, if he gets two misdemeanors – and by misdemeanor, I mean two crimes where you could go to jail for any length of time – then that person could be deported. It happens many times.
Individuals from Central America or from Troubled Regions in the World may be Granted Temporary Protected Status
In my case, the most common examples of temporary protected status are people from Central America, like Honduras and El Salvador. Their country was granted permission to stay here because of terrible economic conditions in their country; our country doesn’t have the — it won’t return someone to a devastated country because the likelihood is that they would starve to death, so they let them stay here. But if they get two crimes, then they can be deported and that is how it would affect that person. So, I guess that covers all the categories.