Current Legislation / Helpful Information for Foreign Nationals Arrested for a Crime in Houston, Texas

At the HLF we plan negotiating strategies to avoid negative immigration consequences for our non-citizen clients wherever possible. Our approach will depend on the particular immigration status of the client and the case. We may refer you to an immigration specialist if your immigration issues are complex.

If you are a Lawful Permanent Resident [LPR] – Green card Holder

  1. We try to avoid any disposition of your case that will trigger deportability.
  2. We try to avoid any disposition of your case that will trigger inadmissibility if you were arrested returning from a trip out of the country or if you may travel out of the country in the future.
  3. If we can’t avoid deportability or inadmissibility, and if you have resided in the U.S. for more than seven years we try to avoid conviction of an Aggravated Felony to preserve eligibiltiy for other relief.

If you are a non-citizen who might be eligible now or in the future for Lawful Permanent Resident – Green card Holder status:

If you have some prospect of becoming a lawful permanent resident based on having a spouse, a parent, or a child who is a U.S. citizen or LPR, or because you have an employer-sponsor:

  1. We try to avoid any disposition of your case that will trigger inadmissibility if you were arrested returning from a trip out of the country or if you may travel out of the country in the future; this cannot be guaranteed.
  2. If we can’t do this, but if you are able to show extreme hardship to a citizen or lawful resident spouse, parent or child, we try to at least avoid a Controlled Substance disposition to preserve possible eligibility for the 212(h) waiver of inadmissibility.

WHAT ARE THE IMMIGRATION CONSEQUENCES TO ME IF I’M CONVICTED

Grounds of Deportability – These apply to our clients who are already Lawful Permanent Residents [LPR’s] or Greencard Holders.

If you are in the U.S. legally you are subject to being deported for convictions in the following crimes:

  • Any Aggravated Felony Conviction – You need to hire the best possible criminal defense attorney to fight your case since you can be deported if convicted. Besides being deported you will also be permanently barred from re-entering the country after deportation – “permanent inadmissibility” and you are subject to up to 20 years of prison if you re-enter the U.S. after having been deported.

If you are a legal permanent resident and are convicted of the below offenses you can be deported and if so, you will not be allowed back in:

  • Murder
  • Rape
  • Sexual Abuse of a Minor
  • PCS with Intent to Deliver
  • Second or subsequent PCS Offense
  • PCS > 5 gms. Crack Cocaine
  • PCS Flunitrazepam
  • Firearms Trafficking
  • Crime of Violence that carries a 1 year or more actual or suspended prison sentence
  • Theft or Burglary that carries a 1 year or more actual or suspended prison sentence
  • Fraud > $10,000
  • Counterfeiting or Forgery that carries a 1 year or more actual or suspended prison sentence
  • Prostitution Business Offenses
  • Federal Offenses and State Analogues

Grounds of Inadmissibility – These apply to our clients who are already Lawful Permanent Residents or Greencard Holders and who leave the county and seek re-admission:

WARNING If you are convicted of or have admitted to:

  • A Controlled Substance Offense or you are suspected of being a Drug Trafficker, you will not receive a 212(h) waiver and will not be allowed back into the U.S. once you have left. (Exception: A single offense of simple Possession of Marijuana of less than 30 g.) You need an attorney experienced and successful in defending Drug Charges. Call us.
  • A second, same offense of any type that carries an aggregate prison sentence of 5 years.
  • A Crime of Moral Turpitude.
  • Any crime involving Theft or Forgery/Fraud.
  • Any crime in which bodily harm is caused or threatened by an intentional act or serious bodily harm is caused or threatened by a reckless act; this includes:
    • Assault Charges
    • Any crime involving a Sexual Offense or Prostitution.

There is a Petty Offense Exception to crimes involving Moral Turpitude where the offense is not punishable with > than 1 year; call us to find out if your case falls under this exception.

Grounds of Ineligibility for US Citizenship – If you have been convicted of the following crimes, or admitted to them, you are barred from a finding of good moral character for up to 5 years:

  • A Controlled Substance Offense or you are suspected of being a Drug Trafficker, you will not receive a 212(h) waiver and will not be allowed back into the U.S. once you have left. (Exception: A single offense of simple Possession of Marijuana of less than 30 g.) You need an attorney experienced and successful in defending Drug Charges. Call us.
  • A second, same offense of any type that carries an aggregate prison sentence of 5 years.
  • A Crime of Moral Turpitude.
  • Any crime involving Theft or Forgery/Fraud.
  • Any crime in which bodily harm is caused or threatened by an intentional act or serious bodily harm is caused or threatened by a reckless act; this includes:
    • Assault Charges
    • Any crime involving a Sexual Offense or Prostitution.

There is a Petty Offense Exception to crimes involving Moral Turpitude where the offense is not punishable with > than 1 year; call us to find out if your case falls under this exception.

What is and is not a “conviction” for immigration purposes?

  • A court-ordered Drug Treatment or Domestic Violence Counseling alternative to incarceration disposition IS a conviction for immigration purposes if a Guilty Plea is taken.
  • A Deferred Adjudication disposition without a guilty plea is NOT a conviction for immigration purposes.
  • A youthful offender/juvenile deferred adjudication is NOT a conviction.

CALL US IF YOU ARE NOT SURE HOW THE ABOVE APPLIES TO YOUR CASE

Question and Answer for our clients who are Illegal Aliens and those with Immigration Issues:

Does a foreign national have the right to contact their consulate and must a Defendant knowingly waive this right prior to police interrogation?

NO on both counts. Recently, a Mexican national arrested in Denton County, Texas for DWI and FSRA [11-09-00107-CR] argued that statements he made after being arrested, but before being informed of his rights as a Mexican citizen to contact the Mexican consulate, should have been suppressed. He appealed the trial court’s decision.

The Court of Appeals held that the Vienna Convention on Consular Relations grants foreign nationals who have been arrested the right to contact their consulate and requires police to inform the individual arrested of this right without delay. However, the U.S. Supreme Court held that the Vienna Convention does NOT control Texas or national law. The Vienna Convention did not create an individually enforceable right and police officers do not have to follow this as a constitutionally-required procedure before interrogating a foreign national.

Although the International Court of Justice has argued that it is a violation of an individuals human rights to be tried without knowledge of the right to contact a consulate official, the Supreme Court has held that ICJ decisions are not binding precedent. Even though President Bush mandated compliance with this, the Supreme Court concluded that the President lacked this authority.

Bottom Line: The Due Process Clause does NOT require police to advise foreign nationals they have the right to contact a consulate official prior to beginning a custodial interrogation.