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The Increased Risks in Criminal Prosecutions for International Students

College students that are charged with criminal offenses or that face University discipline must be particularly careful with how their case is handled. On the criminal side, students should heed the words that a Judge reads to them before they enter a plea: "you are hereby advised that a plea of guilty or no-contest could result in your deportation or exclusion from the United States." As one immigration practitioner recently told a client, "jail is bad, but deportation is worse."

So what is an international student, here on an F-1 visa or the like, to do about his or her criminal case? Immigration law is a complex and constantly evolving field. Full disclosure: I am not an immigration lawyer. But the important thing is that I have a good idea of when immigration issues are implicated and therefore I know when to advise a client to get an immigration opinion before entering a plea or taking a case to trial.

Courts are requiring attorneys to take these steps. The Ohio 12th District Court of Appeals recently overturned a conviction on an ineffective assistance of counsel claim when the defendant's attorney did not adequately advise him of potential immigration consequences of his plea. So what are some of the issues to look for as an international student?

One issue involve cases that are handled through a "Diversion Program." Such programs are generally a great option as they result in the dismissal of criminal charges, BUT they often also require the accused to plead guilty at the outset. Most students are not bothered by the initial guilty plea because the case will eventually be dismissed, but immigration lawyers will tell you that immigration officials can hold the guilty plea against the student even if the case is dismissed. Therefore, it is worth asking if you can enter a Diversion Program without a guilty plea. It is also important to find out what the immigration consequence would be if you HAD actually been convicted of the offense (because in the eyes of the immigration officials you may have been, even if the case was ultimately dismissed).

Another issue involves cases that have been expunged or sealed. I always explain to clients that sealing or expunging a record is not full-proof; and that government entities (i.e. immigration officials) in particular are likely going to be able to peel back the curtain on any case, whether expunged or not. Thus, you should get an immigration opinion as to whether immigration officials will see or consider your sealed or expunged case.

A final issue involves suspension from school. Your immigration status may be dependent upon your active status as a student. This means that suspension from school for disciplinary reasons, even in the absence of a criminal conviction, could have immigration consequences for you. You should therefore get both top-notch representation for your University Disciplinary case, and an immigration opinion on how the outcome of the University Discipline case could affect your immigration status.

As I said at the outset, I am not an immigration lawyer, but I am vigilant in looking for situations where I think my client may have an issue, and I make sure that they receive proper counsel on that issue before I advise them on decisions in their criminal case.

State v. Tapia-Cortes, 12th Dist. No. CA2016-02-031, 2016-Ohio-8101, 75 N.E.3d 878

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