May 22 2010
If you are an undocumented alien and are arrested, the county jail is the last place you want to be. Why? U.S. Immigration officers review CJ inmates to determine if the inmate is lawfully in the United States. Removal proceedings can begin and an immigration hold will keep the inmate in jail.
The best thing for a jailed undocumented alien to do is to contact a bail bondsman, post bail and leave jail before transfer to the county jail.
Both undocumented and documented (e.g. green card, visa) non US citizens must pay extremely careful attention to the immigration consequences of conviction. Certain crimes are treated quite harshly by US Immigration. For example, domestic violence crimes and moral turpitude crimes (e.g. theft, fraud, corruption, gambling, racketeering) can lead to removal proceedings. It is therefore critical to avoid, if possible, convictions of these types of offenses. Other offenses that lead to removal are “aggravated felonies,” crimes of violence, commercial drug dealing/possession and several others.
Obviously, the defendant requires the guidance of experienced counsel to not only avoid penalties in the pending criminal proceeding but counsel must also look ahead to immigration consequences and attempt to avoid them for his client.
If convicted, a documented defendant may be eligible for “cancellation” of removal if placed into immigration proceedings. The following US code section, reproduced in part, describes this relief:
8 U.S.C. § 1229b : US Code - Section 1229B: Cancellation of removal; adjustment of status
“(a) Cancellation of removal for certain permanent residents
The Attorney General may cancel removal in the case of an alien
who is inadmissible or deportable from the United States if the
(1) has been an alien lawfully admitted for permanent residence
for not less than 5 years,
(2) has resided in the United States continuously for 7 years
after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
(b) Cancellation of removal and adjustment of status for certain
(1) In general
The Attorney General may cancel removal of, and adjust to the
status of an alien lawfully admitted for permanent residence, an
alien who is inadmissible or deportable from the United States if
the alien -
(A) has been physically present in the United States for a
continuous period of not less than 10 years immediately
preceding the date of such application;
(B) has been a person of good moral character during such
(C) has not been convicted of an offense under section
1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to
paragraph (5); and
(D) establishes that removal would result in exceptional and
extremely unusual hardship to the alien's spouse, parent, or
child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence.”
Bottom line: Please call this office if you are facing criminal charges with immigration implications before resolving your case in court.