New York City owes much of its energy and excellence to the foreign citizens living and working here. Unfortunately, a visa or green card holder's right to remain in the United States can be seriously jeopardized by a Desk Appearance Ticket, even when the charges are comparatively minor misdemeanors. Many visa holders fail to take these arrests sufficiently seriously because the charges seem minor (like marijuana or subway fare theft) or because the arresting officer tells them "it's no big deal." Truthfully, though, career, educational, and family plans can be completely devastated by even a minor case of walking through the subway gate without paying, so it is absolutely critical that a foreign person arrested and issued a Desk Appearance Ticket retain competent counsel immediately.
In many ways, a Desk Appearance Ticket does not feel like such a big deal. The arrested person is usually handcuffed and taken to a police station where they are fingerprinted. They typically wait a few hours in a holding cell until they are given a piece of paper telling them the date and location of their appearance in court. Before Desk Appearance Tickets became routine, criminal defendants could expect to get "sent downtown" and spend the night in jail before seeing a judge. Obviously, Desk Appearance Tickets are preferable for criminal defendants because they spend less time in custody and also have the opportunity to choose counsel for themselves prior to going to court.
Make no mistake, however: the issuance of a Desk Appearance Ticket is in fact an arrest – it is not "just a ticket". More importantly for visa holders, this event is not going to "fly under the radar" with the immigration agencies. If you were arrested and given a Desk Appearance Ticket, your fingerprints and the arrest charges have been sent to a New York state agency (the Division of Criminal Justice Services) and to the FBI, which maintains a federal nationwide law enforcement database of all arrest events across the United States (the Interstate Identification Index). Visa and green card holders should understand that the immigration agencies, in processing visa renewal requests, access this database to investigate whether the visa applicant has an arrest record. Indeed, some visa holders actually receive emails from Department of Homeland Security (Immigration & Customs Enforcement) agents after their arrests, because the agency was notified of the arrest via the fingerprint database.
Generally speaking, visas will not be renewed if a visa holder has a pending (meaning unresolved) criminal case. Our office has worked with many people whose visas to work or attend school in the U.S. were denied on account of having a pending criminal case, either forcing them to return to their native country or preventing them from returning to the United States. Of course, certain types of convictions can also prevent the renewal of a visa, and can even result in removal or deportation for green card holders. The rules pertaining to the effects of various convictions are too complicated to full explain here – you should consult with an experienced attorney on the subject.
If you received a Desk Appearance Ticket, it should tell you what you can expect to be charged with when you go to court. Specifically, it will list a "Penal Law" charge with the phrase "PL" followed by a number next to the term "Top Offense Charge" or "Top Count". The most common types of Desk Appearance Tickets include charges of Petit Larceny (or shoplifting, PL 155.25), Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Theft of Services (PL 165.15), Criminal Possession of a Weapon (PL 265.01), Assault in the Third Degree (PL 120.00), Trespass (PL 140.10), Public Lewdness (PL 245.00), Forgery (PL 170.20), Unlawful Possession of Marijuana (PL 221.10), and Sexual Abuse in the Third Degree (PL 130.53). These charges are all misdemeanors punishable by up to 90 days or 1 year in jail.
Most individuals (without prior arrests) charged with these crimes do not incur criminal convictions. However, many of the "best" dispositions for these cases – called Adjournments in Contemplation of Dismissals (or "ACDs") – involve long "probationary" periods of six months or a year, during which time the defendants agree to remain arrest free and complete community service or counseling in exchange for a dismissal of the charges. Dismissals are generally great for defendants, so it is hard to refuse such an offer from the prosecutor and court, normally. Unfortunately for visa holders, these "probationary periods" sometimes overlap with the deadlines for renewals of their visas, and since the criminal charges are technically still pending during these probationary periods, visas can and will be denied during these periods. There are a number of possible solutions to this problem. Oftentimes, we seek to have court dates advanced for our clients to avoid deadline problems, meaning that the cases are brought to court sooner than originally scheduled. Sometimes we are able to convince prosecutors to dismiss charges outright. Other times, we simply petition prosecutors to shorten the "probationary periods" on the ACDs to give our clients the opportunity to apply for their visas without this impediment for renewal.
Criminal defendants holding visas and facing Desk Appearance Tickets should also consult with an attorney prior to traveling abroad. New executive orders signed by the President have complicated foreign travel for such individuals. Indeed, foreign visa holders could risk being denied re-entry into the United States by traveling while a criminal case is pending.
Our attorneys regularly represent foreign citizens charged with Desk Appearance Tickets. In fact, on account of our close relationships with several foreign consulates in New York City, over half of our criminal defense clients are citizens of foreign nations. As a result, we understand the unique challenges that holders of green cards of visas face after receiving a Desk Appearance Ticket, and we understand how to best help our clients avoid serious consequences for their visas or immigration status. We have helped countless individuals with F1, K1, H1B, J1, O1, E3, H2B, B1, and other visas remain in the United States so that they could pursue their careers and educational opportunities, and we are proud to have been able to do so.
If you or a loved one are a foreign citizen and have received a Desk Appearance Ticket, you should seriously consider the experienced criminal defense attorneys at Galluzzo & Arnone LLP. Their team of former Manhattan prosecutors will help you navigate the confusing criminal-immigration system and work with your immigration attorneys to do everything possible to ensure that your application for a renewal of your visa or green card is unaffected by these criminal charges.