Certain criminal convictions can have immigration consequences such as deportation, denial of admission or naturalization for any non-citizen. A defendant’s particular category of non-citizenship may affect the specific consequences of an arrest or conviction.
This article focuses on the first three categories. Individuals in the fourth category are subject to deportation upon arrest for any offense – a conviction is not required.
A non-citizen can be forced to leave the U.S. (deported) if he or she comes within a ground of deportability of INA § 237. In general, grounds of deportation apply to non-citizens who have been lawfully “admitted,” that is non-citizens who have entered the U.S. after inspection and authorization by an immigration officer.
Inadmissibility applies to people who are seeking admission into the U.S. Non-citizens who plan to adjust status or apply for a green card will be most concerned about avoiding inadmissibility. Legal Permanent Residents who are returning to the U.S. from a trip abroad may be seen as seeking admission and thus subject to the grounds of inadmissibility.
For immigration purposes, the term “conviction” means a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where: (i) a judge or a jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. This means deferred adjudication is a conviction for immigration purposes. Similarly, a diversion program may be a conviction if a formal judgment of guilt has been entered by the court.
Aggravated felonies are defined under 8 USC 1101(a) 43. A state offense is an aggravated felony if all of the elements of the state offense are included in the federal offense. Of the three categories of offenses that can lead to deportation, a conviction for an aggravated felony has the most severe consequences.
These offenses include:
Generally, a non-citizen is deportable for a crime of moral turpitude if they are convicted of a crime involving moral turpitude committed within five years of admission for which a punishment of one year or more is possible. A non-citizen is also deportable if they are convicted of two or more crimes of moral turpitude that did not arise out of the same scheme of criminal misconduct. 8 U.S.C. § 1227(a)(2)(A)(i).
All drug offenses in which the drug is a controlled substance under federal law will result in removal, with the exception of possession of marijuana under 30 grams. A conviction for a single offense for simple possession of 30 grams or less of marijuana is not a deportable offense. 8 U.S.C. § 1227(a)(2)(B)(i).
“Labor detail” or community service in lieu of jail time is authorized under Article 42.036 of the Code of Criminal Procedure. It allows a defendant to serve their county jail sentence without going into custody. Instead, the defendant performs community service for the county. For example, in Tarrant County a defendant reports at 7:30 a.m. and works through the afternoon. Each day they work counts as 2 days in jail. There is a common belief that accepting labor detail reduces the probability that a person will be deported. The flaw in such an expectation is both the jail and the labor detail/community service program is run by the same entity – the county sheriff’s department. As a result, there should not be any real expectation that accepting labor detail will avoid deportation.
Deferred adjudication and straight probation are both governed by Code of Criminal Procedure Chapter 42A. The options typically avoid time in jail (although time in jail can be made a condition of probation) and as a result many see this as another way to minimize the chances of being deported. The reality, however, is that probation officers are known for contacting federal immigration authorities when a person admits they were not born in the country and are not a legal resident in the country. Every probation department and probation officer is going to handle this situation differently. Since probation terms are years long, it is also not uncommon for the probation officer supervising a case over time to change. Probationers are at risk of deportation. This risk is reduced if the defendant is placed on non-reporting probation. Individuals who are currently on probation should consider applying for early release from probation.
Successful completion of certain pre-trial diversion programs will avoid immigration consequences, particularly if there is no guilty plea with the court. Be sure to talk to your attorney about the details and whether or not a guilty plea will be entered before the court.
Most arrestees without legal status in the Unites States will have an ICE hold and will be unable to be bonded out even if they have a criminal bond. For legal permanent residents, ICE will make the determination whether an ICE hold is appropriate based on the criminal records.
In the Dallas-Fort Worth area, a detainee who is only being held on an ICE hold will be transferred to the local ICE office in Dallas for processing. From this location, the person will be moved to a longer-term detention facility either in Alvarado, Haskell, or Johnson County to await a hearing in front of an immigration judge to seek bond, ask for certain immigration relief, or given voluntary departure or ordered removed.
An immigration attorney may be able to assist by:
First and foremost, consult with an immigration attorney to determine the potential immigration consequences and relief available. If a loved one is detained, advise them not to sign any immigration documents or talk to ICE agents without speaking first to an immigration attorney. It is worth pointing out here that some crimes may not make a Legal Permanent Resident deportable, but can make them inadmissible. This highlights the need for non-citizens to consult with immigration attorneys
Depending on the conviction and the status of the non-citizen, a number of avenues for relief may exist. These include:
Maybe. It depends on the person’s immigration, criminal history, and whether they have immediate U.S. citizen or Legal Permanent residents family members. For example, leaving the United States after a voluntary departure or deportation order may may trigger a 3 year bar, 10 year bar, or a permanent bar back into the United States unless a waiver is granted. Please consult with an immigration lawyer for eligibility of possible waivers.
This article was co-authored by Carrie Nguyen. Carrie Nguyen is the Founder and Managing Attorney of The Law Office of Carrie Nguyen, PLLC. Her practice focuses exclusively on immigration including deportation defense, family-based immigration, and naturalization. She has successfully represented clients in immigration courts and United States Citizenship and Immigration Services (USCIS) offices around the country. She has also spoken on various immigration topics at the American Immigration Lawyers Association (AILA)’s annual conference, the AILA Texas Chapter’s conference, and for the Dallas Bar Association’s Immigration Law Section.