I’m in the U.S. Illegally; Do I Need to Tell My Public Defender?

As a non-citizen of the United States, getting arrested by police or other law enforcement authorities can be doubly frightening. Not only are you facing possible punishment by the U.S. criminal justice system, but you have good reason to worry about the possibility of deportation (removal from the United States).

This has led some non-citizens to think they should keep their lack of immigration papers or status a secret—starting with the very lawyer who represents them in criminal court. (A lawyer who is, in many cases, a public defender appointed by the U.S. government because of the non-citizen's low income.) Other non-citizens might become worried when the attorney starts asking about immigration status, wondering whether this means the attorney plans to turn them in.

To hide this sort of information from your lawyer would, however, be a mistake, for the reasons described below.

Your Defense Attorney Is on Your Side

Your lawyer is there to help you—even if the lawyer is a public defender who was assigned to you by a government office. (And don't worry, a public defender is a "real" lawyer.)

Any attorney who agrees to represent you has a duty to work for your interests. The lawyer's job is to try to keep you out of jail and to protect the rights to which you are entitled by law.

In particular, you can be assured that your attorney will not inform Immigration and Customs Enforcement (I.C.E.) of your immigration status. To do so would be a violation of a principle known as attorney-client confidentiality. This means that the information you share with your attorney cannot be shared with anyone else without first getting your consent.

Undocumented Immigrants Are Entitled to a Public Defender in Criminal Proceedings

Even if you are in the United States illegally, and have a low income, you are entitled to free legal representation in U.S. criminal courts (though you will have to pay for an attorney in immigration court, regardless of being low income). Your public defender cannot stop representing you based on your immigration status. It is your public defender's duty to represent you and defend your rights to the fullest extent allowed under the law.

Why Your Public Defender Needs to Know Your Immigration Status

If you are ultimately convicted of a criminal offense, you are potentially subject to removal from the United States. Removal based on a crime is not automatic, however, and is not legally required for every type of crime. Whether someone is, in fact, removable based on a crime depends on the exact charge, conviction, and/or sentence.

Of course, as an undocumented immigrant you are already removable from the United States, for the basic reason that you entered without permission and have (we're assuming) no legal right to remain. Or perhaps you do have some relief you can apply for, such as asylum—but a criminal record will also make that harder to get approval for.

In any case, it's possible that, now or in the future, some basis upon which you might apply for U.S. lawful permanent residence (a green card) will arise. Perhaps a spouse or other family member or prospective employer will file a family-based or work-based petition for you to immigrate. But with a crime on your record, you could then be found "inadmissible," meaning ineligible for virtually any type of green card or U.S. entry.

With the inadmissibility problem in mind, your public defender will need to carefully analyze what you were charged with to figure out whether you can be cleared of guilt and, if not, how to work with prosecutors (perhaps through a plea bargain) to arrive at a conviction and sentence that does the least damage to your immigration prospects.

You won't find out the fate of your immigration status right away, in criminal court. Only after you face the state criminal court judge might you be served with a notice to appear (NTA) before a judge in immigration court (also called the Executive Office for Immigration Review or EOIR). The immigration court judge will determine your right or ability to remain in the United States, and consider any defenses to removal that you might present, in what's called a removal proceeding.

Your public defender will no longer be with you at this point—you'll need to hire an immigration attorney. (See How Expensive Is an Immigration Lawyer?.)

Types of Crimes That Lead to Inadmissibility

Let's take a brief look at the types of crimes your public defender will want to avoid being put on your record. Someone can become inadmissible if the U.S. government has reason to believe they were involved in a bad act such as drug trafficking, or if they have a conviction for crimes that involve controlled substances, prostitution, or money laundering. For more information, see Crimes That Make U.S. Visa or Green Card Applicants Inadmissible.

It is also important to understand that federal immigration laws' definition of what a "conviction" is, and your state laws' definition of conviction, might not be the same. Under federal immigration law, the definition of a conviction is very loose. You don't necessarily have to be convicted under state law to be considered convicted under immigration law.

For example, let's say a defendant accepts a deal where he pleads "no contest" and receives a 14-month deferred sentence. At the completion of the sentence, the conviction would be expunged from the defendant's record. However, under immigration law, because the judge imposed a sentence as part of plea deal, the conviction will remain part of the defendant's record for immigration purposes.

In order to receive the most effective assistance, your public defender must be aware of your immigration status. Your attorney might, by law, have additional responsibilities to you because of your being undocumented. If, for example, you are charged with a criminal offense and it is clear from reading the statute that deportation would be virtually mandatory, (as with murder, drug trafficking, rape, armed robbery, and several other violent felonies), your public defender would be required to inform you that deportation is virtually mandatory. (See Padilla v. Kentucky, 559 U.S. 356 (2010).)

If you are charged with a criminal offense and the law is unclear on whether you will be deported, your public defender simply has to tell you that your pending criminal charges carry the risk of immigration consequences.

Your public defender should work with your immigration attorney in order to determine the best possible scenario, because once you are in removal proceedings, it is difficult to undo the effects of a criminal record.