A Criminal Case Can Jeopardize Immigration Status

Austin Criminal Defense Lawyer

A criminal case can jeopardize immigration status sometimes causing aliens to lose their status and face deportation. Immigration Law is its own specialty and we often work together with trusted immigration attorneys who can make a big difference in the outcome on a criminal case. A Padilla Letter is often critical to getting the right outcome.


Recently, a client came to us after having pled guilty to felony Retaliation and Unlawfully Carrying a Weapon. The client was from Mexico and living in the United States as a Permanent Legal Resident (“LPR”). He thought he had avoided immigration consequences by accepting a Deferred Adjudication Probation which he mistakenly believed was not a conviction for immigration purposes. He was now subject to being deported. Worse, while he was on Probation, he was arrested for an intervening misdemeanor which now exposed him to prison time on the Retaliation and Unlawfully Carrying a Weapon charges.

Pleading guilty and accepting deferred adjudication probation to the Unlawfully Carrying a Weapon charge subjects an alien to deportation under section 237(a)(2)(c) of the Immigration and Nationality Act.  That section of law makes any alien, including an LPR, deportable if they are convicted of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device.

The Felony Retaliation conviction presented considerable risk of deportation as well. At the time, 18 USC 16(b) defined a crime of violence as a felony that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. [Note 18 USC 16(b) has since been found unconstitutional].

We vigorously showed the prosecutors that the Retaliation and Unlawfully Carrying a Weapon pleas were involuntary and that the client was misinformed by his original lawyer. Working together with an immigration attorney we were able to show how the deportation consequences applied a disproportionate impact to our client. In an exceptional show of clemency, the prosecutor’s office agreed to reopen the criminal cases and allow our client to plead to a lesser charge that did not involve a weapon or a crime of violence.


Another immigration challenge came to us when a client from Afghanistan was charged with Leaving the Scene of a Collision with Serious Bodily Injury, a Felony under Texas Transportation Code section 550.021. The client had been an LPR for less than 5 years when the accident occurred.

Section 237(a)(2)(A)(I) of the Immigration and Nationality Act (INA) states: “Any alien who is convicted of a crime involving moral turpitude committed within 5 years after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.”

There was a controlling 5th circuit precedent on point, that found a violation of the Texas Transportation Code section 550.021 to be a crime involving moral turpitude.

We were able to show that our client had serious fears of reprisal if she stayed at the scene of the accident. Together with the substantial risk of deportation, the prosecution allowed our client to plead to a reduced charge of Accident Involving Damage to a Vehicle – a class B Misdemeanor.


Even a DWI can have significant immigration consequences for individuals living in the US with a Work or Travel Visa. Our Client was charged with a DWI and his Travel Visa was revoked leaving him unable to obtain admission to the United States under his then-existing status. Subsequent to the revocation of his visa, the Client’s pending case for an extension of his lawful nonimmigrant status, was denied by the United States Citizenship and Immigration Services (USCIS) leaving him without valid work authorization and terminating his authorized period of stay in the United States.

If he left the United States, he would have been unable to return and his DWI would remain unresolved. However, he needed to return to his home country to obtain a new valid travel visa and apply for admission to the United States to regain a valid status. The embassy would not grant a visa to an individual with an open court matter.

Our only hope was to have the DWI dismissed. We were able to reach a Deferred Prosecution Agreement with no admission of wrongdoing.

Immigration issues can profoundly affect the handling of any criminal case. By combining the equities of disproportionate consequences along with a legitimate procedural deficiency on the criminal case can sometimes bring about a better than expected outcome.

Austin Criminal Defense Lawyer

Austin Criminal Defense Lawyer

Austin Criminal Defense LawyerAustin Criminal Defense Lawyer

Austin Criminal Defense Lawyer David B.Frank Can handle any type of criminal cases.

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