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Parviz Malakouti-Fitzgerald, Esq.

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  • Writer's pictureParviz Malakouti-Fitzgerald, Esq.

What To Do If You're Arrested As a DACA Recipient

Updated: Sep 20, 2023

By Parviz Malakouti-Fitzgerald, Esq.

Article Outline:

Get an Immigration Lawyer Before

the Criminal Case Finishes

As an immigrant in the U.S. if you are ever arrested and charged with a crime, you need to get an immigration lawyer before your criminal case is resolved.

By “resolved”, I mean before you a) plead guilty to a charge or b) go to trial. Really, the earlier you get the immigration lawyer involved, the better off you’ll be. This is one of the most important things to do if you’re charged with a crime as a non U.S. citizen.

The first reason is that the immigration lawyer can advise your criminal defense lawyer about the immigration consequences of the possible plea deals being considered. Once the criminal defense lawyer knows the immigration consequences of different plea bargains being offered, they can choose the one that’ll damage your immigration situation the least. Your criminal defense lawyer will need the expertise of an immigration lawyer. Generally, criminal defense lawyers do not know immigration.

DACA-Specific Issues

As a DACA recipient, there are two types of immigration consequences you need to know:

First, how will this criminal plea deal affect your DACA?

Second, how will this criminal plea deal affect your potential future immigration paths that might come available to you later?

One common example is DACA recipients in California that have been charged with a DUI that may make them ineligible to renew DACA if they are convicted. In some cases, especially with the help of an immigration lawyer, they’re able to plead down to a wet reckless conviction and renew their DACA.

The second reason you need the immigration lawyer early in your criminal case is that some states, like California, allow a defendant to submit an immigration legal opinion letter on the immigration consequences of a particular plea.

The opinion and advice of the immigration lawyer can result in a better plea deal for the defendant.

You Need Two Lawyers, Not One

Contrary to popular media and endless lawyer jokes, two lawyers are indeed better than one when it's your tuchus on the line

So you need two lawyers - your criminal defense lawyer and your immigration lawyer. Unless your criminal defense lawyer is also an immigration expert, they will not know whether the plea they get from you will hurt your immigration situation.

Don't think you can wait until after the criminal case is done before you turn your attention to your immigration situation. They must be considered at the same time.

I've seen this mistake over and over again and it's devastating.

This happens not just with DACA recipients, but also with other immigrants who have consulted with my office only after the criminal case is done. At that point, the immigration lawyer can advise as to what immigration options are still available and whether some sort of post-conviction relief (i.e. expungement) can possibly help the situation.

The immigration lawyer can still help but you've taken two big tools off the table that can help you immensely. Those two advantages are the ability to 1) advise the criminal lawyer & 2) submit a legal opinion letter. Those benefits are gone if you only start talking to an immigration lawyer after you’ve been convicted.

In Summary

In summary, if you’ve been arrested and charged with a crime as an immigrant, get an expert immigration lawyer involved BEFORE you plead guilty to any charges.

Pro tip: Once you’ve finished your criminal case, and are renewing DACA, make sure to avoid making mistake #5 of these 5 Common DACA Mistakes.

Good luck!

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