Undocumented Immigrant Charged with a Crime?

New York Attorney Focuses on Immigration Law and Criminal Defense

Video Transcript:

Cory Forman:

Significant consequences that do not apply to citizens, that do apply to non-citizens.

Rob Rosenthal:

If an undocumented immigrant is charged with the crime, what should they do and where do they get help? We're gonna find out right now because that's what we're going to ask a lawyer. Hi again everybody. I'm Rob Rosenthal with AskTheLawyers.com, and my guest is New York City attorney Cory Forman. I wanna remind you right off the top, if you'd like to ask Cory questions about your specific situation, all you have to do is head to AskTheLawyers.com, click the button in the upper right hand corner of the screen that says, Ask a Lawyer and it'll walk you right through the very simple process right there. Cory, nice to see you, thank you for making some time to help us out today.

Cory Forman:

Same here. Thanks so much for having me.

Rob Rosenthal:

So let's just start, we're talking about undocumented immigrants who have been charged with a crime, should we assume that if they're convicted of a crime or charged even just charged that they're gonna be deported automatically. What happens there?

Cory Forman:

Well, no, there's a lot of misinformation out there. Some of it is intentional to put fear in people's minds, some of it is just 'cause it's such a complex area of law. Being charged with the crime, whether you're documented or undocumented, even if you're a lawful permanent resident could have major effects on your ability to become legal if you're not already a legal resident to apply for naturalization if you are or can lead to deportation, it doesn't have to be. For the most part, being charged with the crime in and of itself is not gonna subject someone to deportation. Now, it could put an undocumented individual on the radar who's already deportable for another reason, like being here without papers, it could lead to that for sure. But the first thing that you wanna do, if you're charged with the crime, what any person should do is consult with a lawyer, but make sure that you consult with a lawyer that has the experience in not only criminal law, but in immigration law, there is significant or rather, there are significant consequences that do not apply to citizens, that do apply to non-citizens, again, whether you're here lawfully or not. There Green Card holders, I represent thousands of them that have been charged with the most innocuous simple crimes that they didn't think was a big deal and their lawyer told them was that not a big deal, he yet it landed them in deportation proceedings. Same thing with undocumented individuals that could otherwise be eligible for a form of relief. If they are put in deportation proceedings could be foreclosed from applying for that role because of the crime, the conviction. So it's essential, they really sit down and consult with a criminal attorney that has a specialty background in immigration that could navigate both avenues for you.

Rob Rosenthal:

I wanna get into that in just a second, but what about, say, permanent residents, are there additional protections for them and not for the other?

Cory Forman:

Well, in terms of being a lawful permanent resident is gonna have more extensive rights in terms of burdens, but the crime of it itself, there were certain crimes that is gonna make a lawful permanent resident deportable. There are some that a lawful permanent resident will be eligible to apply for relief from, but for instance, most controlled substance offenses, most drug offenses, including marijuana, will render even a lawful permanent resident deportable from the country. Now because they're a lawful permanent resident, assuming they meet other eligibility requirements, they may be able to apply for a waiver or relief that wouldn't be available to someone who's not a lawful permanent resident. But there are many crimes, especially aggravated felonies, that are just gonna put even a lawful permanent resident and out of luck. I've represented many individuals here for 40 years, came here when they were infants as lawful permanent residents, they're convicted of a simple cocaine charge later in life, that renders them deportable, puts them in the removal proceedings. Now, at the time they took the plea, they thought it was a simple fine and their life would go on, and they thought that until the ICE comes knocking on their door, it's gotta be very careful, but even for lawful permanent residents, you have to be very, very careful in terms of if you're charged with a crime, even as a lawful permanent resident or better known as a green card holder, you gotta be very careful on how that situation is navigated. There are times where you maybe advise a non-citizen or even a lawful permanent resident, to plead to something that under the criminal law may be considered more serious, but doesn't have the same immigration consequence that another offense would.

Rob Rosenthal:

That's why it's important to have, know somebody, have somebody on your side who knows the difference, you mentioned... Let's talk about crimigration, you practice what you call crimigration law. Explain what that is, and what are the advantages for someone who may need your help?

Cory Forman:

Well, like I just said, I represent non-citizens in the criminal world, a lot of it is post-conviction relief and appeals, people convicted of crimes that they pled guilty too, that they didn't think about, or they didn't know there would be a significant immigration consequence, and there is one, we'll try to get that case back into court by filing a motion to vacate the conviction, I'm very successful at that, try to get that conviction vacated to cure that immigration problem, that is one area of the crimigration world. We do a lot of advising to criminal counsel who don't know this area of law that really need the immigration expertise, where we work with criminal counsel and crafting pleas and coming up with alternative offenses that their client could plead guilty built to, although again, it's better to have someone that does everything at once in the immigration context in the immigration world, we will defend removability often by disputing that a certain criminal offense leads to a deportable offense under the immigration law. There's a lot of analysis that goes into that. There's a lot of defenses, legal arguments you can make as to why a certain crime is not a deportable or removable offense. So in the immigration contexts will do a lot of defense on that end, so we really... Again, it, to answer your question, to go from the crimigration applies, so just having that specific special knowledge in both areas of law, so when they intersect, you could really help somebody.

Rob Rosenthal:

You mentioned before some of the offenses that could cause trouble and it makes sense to some of the felonies. Can this also be a problem for minor crimes, like say traffic tickets or even you said minor drug possessions? Those could also be a problem?

Cory Forman:

Minor drug possession, definitely. There's no such thing as minor drug possession in the world of immigration, if the only exception is very small amounts of marijuana and that applies even today, so even if you live in a state where marijuana has been legalized, well, legalize, if there's a prior conviction before it was legal, or even if you admit to marijuana use in certain sets of circumstances, like when you're trying to get into the country, that's a major consequence if you admit to marijuana use and you try to get into the country, and that's found out...tough. You would need a waiver for that, and most people don't apply for that waiver. Traffic tickets again, there are some that are more serious than others, some states, traffic... Even DWI comes under the vehicle and traffic law and not the criminal code, but that's obviously gonna have a significant impact, but for the most part, minor speeding tickets are not an issue in and of themselves. Now, there are states though, where the local police will cooperate with the Federal Government, you're pulled over on a minor traffic offense and they run your immigration background, and it turns out that you're here unlawfully or there's some kind of red flag that could lead to trouble.

So again, it's not only the offense that you have to be careful about, it's what could that offense trigger? It could have put you on the radar, but yes, I think a lot of the media conversation on the national conversation in the news about immigration, non-citizens that commit crimes, it's always portrayed as serious violent defenders are the ones that have to be meted out, but the fact is some low level, long ago, really nonsensical, minor stuff from stealing deoderant. Not that I'm condoning that, but in a Walgreens or in a pharmacy shop could lead to being charged as someone has committed a crime of moral turpitude. So again, this is very little distinction between minor and major crimes in the world of immigration, it's very harsh.

Rob Rosenthal:

At the very top, you mentioned that there's some misinformation put out purposely for intimidation and for fear reasons. Who would do that? Who would put that information out there?

Cory Forman:

Well, I think news sells, and I think the media, and I'm talking left, right, center, I mean the fact is that it sells, it's a product that people buy and fear sells, so that's one... I think we all realize that over the past year and a half, how much that can be addictive and detrimental, so that sells. I think certain government persuasions are political affiliations, try to put that out there, I think in the last administration, that was a big tactic to dissuade people from applying. Again, a lot of the news is focused on the border and what was happening on the border, but there was a lot of purposeful obstacles being put in place to prevent people from applying for residency applying for citizenship, so sometimes it's government-sanctioned unofficially, so, but it's just the reality.

Rob Rosenthal:

Lots of really helpful information today, Cory, thank you so much, I appreciate you making some time to answer our questions.

Cory Forman:

My pleasure. 

Rob Rosenthal:

That's gonna do it for this episode of Ask a Lawyer. My guest has been New York City attorney Cory Forman. And remember, if you'd like to ask Cory questions about your specific situation, it's easy to do, just go to askthelawyers.com, there's a button in the upper right hand corner that says Ask a Lawyer. Click there and you can ask your question. Doesn't cost anything to ask. Thanks for watching everybody. I'm Rob Rosenthal with Ask The Lawyers.

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