As a criminal defense attorney it is always my goal to ensure that my clients have the best possible representation and receive the best possible outcome following an accusation that they committed a crime. A close review of the police report and an analysis of the circumstances of the arrest will help the attorney determine if the case goes to trial, or if the client will be better served by accepting a plea bargain. The client makes the ultimate decision, but the attorney should be able to guide the client to the best decision for their particular case.

A normal plea bargain negotiation gives the client a few options to choose from. The plea bargain deal a client is offered will depend on the location (jurisdiction) of the criminal charge, the discretion of the prosecutor, the severity of the crime and the facts of the case, and a review of the client's criminal history. This analysis gets more complex if the client is not a US citizen.

A non citizen is a person who is either in the United Sates with legal status like a Legal Permanent Resident, or a non immigrant visa like a student or tourist, and sometimes people who have no status and are considered undocumented. For a person with any of these statuses, a plea bargain can have adverse consequences if the case is not handled appropriately.

Recently, the Board of Immigration Appeals (BIA) delivered the opinion in Matter of Mohammad, 27 I&N Dec. 92 (BIA 2017) that pre trial diversion programs are convictions for purposes of immigration. In the context of a US Citizen client, a pre-trial diversion plea allows the client to accept responsibility for his or her actions, pay some fines/fees, do a combination of intervention classes, community service, and a pre determined time period of supervision by an agency tasked with supervising this program. If the client successfully completes the program, the case goes away by the prosecutor dismissing the case. For the US Citizen this type of plea is going to be an excellent way to dispose of the case and has the possibility of maintaining a clean record.

However, under Matter of Mohammad, a non citizen will see that a pre trial diversion program will end in a final conviction once the criminal record is reviewed by an immigration judge. Matter of Mohammad clearly states "Entry into a pretrial intervention agreement under Texas law qualifies as a "conviction" for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012), where (1) a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement, and (2) a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no-contact order."

So, if a non citizen is arrested, it is very important that the non citizen understand all the aspects of the case and pay special attention to the type of plea bargain that is being offered. A "good" deal for a US Citizen, can be a disaster for an immigrant client.

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