Immigration & Reentry
Non-citizens involved in the criminal justice system confront additional civil consequences. These consequences can be very severe. Even if you have lived in the United States for a long time, and even if you have strong ties to the U.S. and have family here, guilty pleas and convictions can lead to an immediate detention and can start deportation (also called "removal") proceedings.
As a first step, talk to your criminal defense attorney to learn more about the consequences you might face.
1. What are the types of consequences I can face if I am not a citizen and I am arrested in the U.S?
- If you are a noncitizen, arrest alone can lead to detention by Immigration and Customs Enforcement (ICE) and the start of deportation proceedings.
- If you are out of status or undocumented, when you are arrested, your fingerprints will be sent to an immigration database. ICE may lodge an immigration "detainer", or warrant, at your arraignment.
- Or, an immigration detainer may be lodged by ICE officials if you are in jail, regardless of the type of charges.
- Even if you are in the country with immigration status, if you already have criminal convictions, a new arrest may also lead to an immigration detainer.
- If you have an immigration detainer:
- Once your criminal case is over, or if you pay bail, instead of being released you will be detained by immigration and sent to see an Immigration Judge.
- NOTE: in New York City, the City Council has passed laws protecting some people against ICE. Its important to talk to your criminal defense attorney or a qualified immigration attorney about whether you may qualify to be released from NYC DOC custody even if you have an immigration detainer.
2. What are the consequences to pleading guilty or being found guilty of a crime if I am not a citizen of the US?
- If you are undocumented, criminal convictions may make you ineligible to get status in the future (including residency, asylum, work authorization, etc.)
- If you are in the US as a Lawful Permanent Resident (someone who has their green card), criminal convictions could:
- Make you deportable
- Make it so you cannot become a US citizen
- Make it so you cannot renew your green card
- Make it so you cannot travel internationally
3. What types of crimes cause these consequences?
If you are a non-citizen, regardless of whether you are a green card holder or are undocumented, even a non-criminal violation can make you deportable or bring about undesirable consequences. Make sure to tell your defense attorney what you immigration situation is in all cases. Insist that you attorney tell you how your case might affect your immigration status.
If you are a non-citizen, a 2010 Supreme Court ruling, Padilla v. Kentucky, requires that your lawyer inform you if accepting a guilty plea might put you at risk for deportation.
- Even low-level, nonviolent and misdemeanor offenses (such as shop-lifting, drug possession, and turnstile-jumping) can lead to deportation. For instance, two convictions for turnstile jumping can make a lawful permanent resident deportable.
- Even non-criminal violations can lead to deportation, like violations for possession of marijuana.
Because these consequences are so severe and complex, it is absolutely critical to consult an immigration lawyer - and make sure that your defense attorney does so - before taking any plea or conviction. This is especially important if you have had any previous encounters with the legal system (e.g. prior arrests or convictions).
4. How do I find out if my criminal convictions may be a problem?
- As a green card holder, if you have ever been arrested and are thinking about renewing your green card, traveling out of the country, or applying for citizenship, you should consult an attorney before taking any of these actions.
- If you are about to apply for your green card or any other immigration benefit, and you have ever been arrested, make sure you tell a qualified immigration lawyer so you can get accurate advice about whether your prior arrests could cause a problem.
5. What should I do if I am being held in jail with an ICE (Immigration & Customs Enforcement) detainer?
- Ask your criminal attorney about the immigration consequences of your current case. Even if you already have a detainer, it is important to make sure that you don't make your situation worse with your current case.
- Call the Immigrant Defense Project: The Immigrant Defense Project runs a hotline for criminal defense attorneys and immigrant clients and families on weekdays from 9-6 at 212-725-6422. They can advise about the immigration consequences of your criminal cases, as well as whether or not you may be eligible for release from NYC DOC custody even if you have a detainer: DOC custody even if you have a detainer.
- For more information, click here.
- Do NOT pay your bail until you have discussed your options with an immigration attorney. If ICE has placed a detainer on you and you pay your bail, you will probably be transferred to ICE custody. The open criminal case can cause a big problem for you if you are trying to fight your deportation, or in the future when you are trying to come back to the US.
- Know your rights in detention: NYC jails have educational literature about your rights and legal options, as well as presentations from Families For Freedom.
6. What happens during deportation proceedings?
- You may end up in deportation proceedings if you are picked up by ICE from jail after the end of your criminal case.
- You may also end up in deportation proceedings through other contact with ICE, such as:
- Getting picked up at probation
- Reentering the country after a trip abroad
- Applying to renew your green card or applying for citizenship
- Applying for an immigration status like your residency
- You may be detained in an immigration detention center or you may be released.
- If you are detained, you may be eligible to ask the Immigration Judge for bond; however, many criminal convictions will make you ineligible for bond. If you are not eligible for bond, you may be detained during your whole deportation proceedings.
- You will not be given a free lawyer in deportation proceedings. You can try to find a free lawyer; if you can't, you will either have to pay a private attorney or represent yourself.
- Finding a lawyer:
- Ask your public defender if their office has immigration attorneys who can help you.
- Call the Legal Aid Society's Immigration Law Unit Hotline at 212-577-3456 on Wednesdays and Fridays between 1:00pm and 5:00pm. The Immigration Law Unit accepts collect calls from prisons and detention centers.
- If you are going to hire a private attorney, check their references and make sure they are in good standing with the courts. Don't be victimized by notaries, unlicensed lawyers, or lawyers who have been disbarred.
- Be clear with your private attorney about their fees, what is included in these fees, and exactly what they will be able to help you with.
For additional information on deportation proceedings, here is a community resource.
It has detailed information on who can be deported, how ICE interacts with the criminal justice system, and what to do when you or someone you know is facing deportation proceedings. It is up to date as of 2010.
7. Are there any organizations that can help me?
The first thing to do is talk to your criminal defense attorney. In New York City, most public defender offices have immigration attorneys on staff who may be able to represent you in immigration proceedings. Public defenders can also ask the New York City Criminal Justice Coordinator's office to assign you an immigration attorney for deportation defense.
Outside of New York City, you can search for immigration legal services providers by visiting Immigrant Advocate Networks' National Immigration Legal Services Directory. You may also want to reach out to your consulate.
The Immigrant Defense Project:
The Immigrant Defense Project runs a hotline: (212) 725-6422
Offers advice, but no legal representation.
Families for Freedom:
Families for Freedom is a New York-based organization working to fight deportation. They provide support, education, and action for both families and communities affected by these issues. Does not offer legal representation.
Legal Aid Society:
Offers legal representation for individuals in deportation proceedings in New York City.
Erie County Bar Association
Offers advice and referrals in Buffalo, NY
*This handout is an excerpt from The Consequences of Criminal Charges: A People's Guide, published by The Bronx Defenders. It is for informational purposes only and is NOT a substitute for legal advice. It is up to date as of November 2013.