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Pre-Trial Diversion or Intervention can still have Negative Immigration Consequences

Many immigrants believe that if they accept the pre-trial intervention or diversion programs offered to criminal defendants after they are arrested, they will not face deportation from the United States. That is simply not true. To understand why, you must understand that there are two different laws that the U.S. Immigration and Customs Enforcement (ICE) use to deport people from the United States. One set of laws usually applies to people who entered the country without inspection, admission or parole. The other set of laws applies to lawful permanent residents (LPRs) and non-immigrants, including students, tourists, workers, etc.

For ICE to deport someone in the second group (LPRs, etc.) based upon certain crimes, there must be a conviction. A conviction includes anytime a criminal defendant enters a plea of guilty or no contest and is adjudicated guilty or the adjudication of guilt is withheld. A successfully completed pre-trial intervention or diversion program will result in the charges being dropped. If the charges are dropped there is no conviction and an LPR or other lawfully admitted non-immigrant cannot be deported from the U.S. based upon that crime.

HOWEVER, if that same LPR or non-immigrant successfully completes a pre-trial intervention or diversion program and the criminal charges are dropped, they can still face deportation in certain circumstances. If anyone in this second category leaves the U.S. and comes back, they are subjected to the same set of laws as someone who entered the U.S. without inspection, admission or parole.

The set of laws that apply to this group is much more broad and much more harsh. This set of laws does not require a formal convection before a crime can be used to try to deport a non-citizen from the U.S. All that is required to try to deport you if you fall into this group is an admission to committing a crime that would make you “inadmissible” to the U.S. This group of crimes includes any controlled substance offense or any crime involving moral turpitude.

The U.S. Court of Appeals for the Eleventh Circuit recently issued a decision on this subject in the case of Martinez v. U.S. Att’y Gen. Leda Ilma Martinez was an immigrant who was lawfully in the U.S. through a grant of Temporary Protected Status (TPS). She was arrested for possession of cocaine in Florida and was offered and completed a pre-trial intervention program. After she completed the program, the State of Florida dropped the criminal charges against her. She departed the U.S. and when she returned, immigration officers put her in removal proceedings arguing that she should be deported from the U.S. because she admitted to committing the crime for which she completed pre-trial intervention. During the course of the pre-trial intervention program, Ms. Martinez was compelled to sign a form admitting her guilt in order to receive acceptance into the program.

The Eleventh Circuit upheld both the Immigration Judge and the Board of Immigration Appeals’ decision that Ms. Martinez admitted that she committed a controlled substance offense through the pre-trial intervention program documents. She was therefore deportable from the United States and no longer eligible for TPS.

The experienced criminal and immigration attorneys at Shorstein, Lasnetski & Gihon can help you in both your criminal and immigration cases. Let us help you protect your rights in both criminal and immigration court. Call us today.