What Happens When a Non-US Citizen Is Charged With a Crime in America? A Guide for Expats

For expatriates living and working in the United States, understanding the American criminal justice system becomes critically important when facing criminal charges. Unlike U.S. citizens, non-citizens face a dual legal challenge: criminal prosecution and potential immigration consequences. Whether you hold a work visa, green card, or temporary visitor status, any encounter with law enforcement can have far-reaching implications beyond the criminal case itself.

The intersection of criminal law and immigration law, often called "crimmigration," has become increasingly complex in recent years. According to the Bureau of Justice Statistics, of the approximately 84,800 persons criminally charged in U.S. district courts in 2018, non-U.S. citizens accounted for nearly 49% — roughly 41,000 individuals. Understanding what happens when you're charged with a crime is essential for protecting both your freedom and your immigration status.

What Happens Immediately After Arrest

When a non-citizen is arrested in the United States, the initial procedures mirror those for U.S. citizens. You will be taken into custody, read your Miranda rights, and processed at a local police station or detention facility. During booking, authorities collect personal information, fingerprints, and photographs.

However, there's one critical difference: immigration status checks. Local law enforcement agencies often share fingerprint data with Immigration and Customs Enforcement through programs like Secure Communities. This means ICE may become aware of your arrest within hours, even if you haven't been convicted of any crime.

You have the right to make a phone call, though international calls may be restricted. It's crucial to contact an attorney immediately, preferably one who understands both criminal defense and immigration law. Many non-citizens don't realize they should remain silent beyond providing basic identifying information. Anything you say can be used against you in both criminal proceedings and potential immigration cases.

Immigration Consequences to Understand

The immigration consequences of criminal charges vary significantly based on the type of offense and your current immigration status. According to the U.S. Citizenship and Immigration Services, certain criminal convictions create what immigration law calls "grounds of inadmissibility" or "grounds of deportability."

Even misdemeanor convictions can trigger immigration consequences. Crimes involving moral turpitude, a legal term that includes fraud, theft, and certain assault charges, may make you deportable if convicted. Drug offenses, regardless of how minor, carry particularly severe immigration consequences. A single marijuana possession conviction, even in states where recreational use is legal, can result in deportation proceedings.

Aggravated felonies represent the most serious category under immigration law. Despite the name, aggravated felonies include some misdemeanors under state law. These offenses make non-citizens almost automatically deportable and ineligible for most forms of immigration relief. Even lawful permanent residents who have lived in the United States for decades can face removal proceedings following an aggravated felony conviction.

The timing matters significantly. For non-citizens facing criminal charges, understanding these immigration consequences before accepting any plea deal is essential. Attorneys handling criminal cases in Parsippany, NJ, and throughout the country increasingly coordinate with immigration attorneys to evaluate the full impact of criminal resolutions on their clients' immigration status.

Your Legal Rights as a Non-Citizen

Non-citizens accused of crimes in the United States retain most of the same constitutional protections as American citizens. You have the right to remain silent, the right to an attorney, and the right to a fair trial. You cannot be forced to incriminate yourself, and prosecutors must prove your guilt beyond a reasonable doubt.

However, one significant difference exists: non-citizens facing criminal charges that could lead to deportation have the right to be informed of the immigration consequences. In the landmark case Padilla v. Kentucky, the U.S. Supreme Court ruled that defense attorneys have a constitutional obligation to advise non-citizen clients about the deportation risks of guilty pleas.

If you cannot afford an attorney for the criminal case, the court will appoint a public defender. However, this right does not extend to immigration proceedings; you're not entitled to a court-appointed attorney for deportation defense. This creates a challenging situation where you may have representation for the criminal case but must find and fund your own attorney for immigration matters.

For those arrested by federal immigration authorities rather than local police, additional rights apply. You have the right to contact your consulate, though whether you choose to exercise this right is a personal decision that should be discussed with an attorney.

When to Seek Legal Representation

The most critical time to seek legal representation is immediately after arrest, before making any statements or decisions. The interaction between criminal and immigration law is complex enough that even experienced criminal defense attorneys without immigration skills can inadvertently recommend plea agreements that lead to deportation.

Ideally, non-citizens facing criminal charges should consult with attorneys who have experience in both criminal defense and immigration law, or retain separate counsel for each area who can work together. This dual representation approach helps ensure that any resolution of the criminal case considers the immigration implications.

Don't wait until after conviction to consider immigration consequences. By that point, options become severely limited. Some plea deals that seem favorable from a purely criminal perspective can be catastrophic for immigration status. For example, a suspended sentence might keep you out of jail but still trigger mandatory deportation.

Understanding Your Options

If you're a non-citizen facing criminal charges in the United States, several paths forward exist depending on your circumstances. In some cases, charges can be reduced to offenses that don't carry immigration consequences. Diversion programs, pretrial intervention, or alternative sentencing options might preserve your immigration status while resolving the criminal matter.

For those already in removal proceedings, certain forms of relief may be available, such as cancellation of removal or asylum, though these remedies have strict eligibility requirements. The key is addressing both the criminal and immigration aspects of your situation simultaneously rather than treating them as separate issues.

Living as an expatriate in America comes with the responsibility to understand local laws and the unique vulnerabilities non-citizens face in the criminal justice system. If you find yourself charged with a crime, remember that you have rights, options exist, and seeking knowledgeable legal guidance immediately can make the difference between a resolvable setback and a life-altering immigration consequence.