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.
What Are the Categories of Non-Citizens?
- Legal Permanent Residents, also known as “Green Card holders”
- Visa Holders include individuals in the country on valid visas: visitor visa, student visa, and employment visa.
- Individuals who are not legal residents but have a work permit. They include Deferred Action for Childhood Arrivals (DACA), sometimes referred to as “dreamers,” or Temporary Protected Status (TPS) given to eligible nationals of designated countries.
- Individuals with no legal status or “undocumented”
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.
The Difference Between Deportability & Inadmissibility?
What is Deportability?
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.
What is Inadmissibility?
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.
What is a Conviction for Immigration Purposes?
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.
What Kind of Conviction Can Lead to Immigration Consequences for Non-Citizens?
- Aggravated Felonies
- Crimes Involving Moral Turpitude
- Drug Convictions
What is an Aggravated Felony for Immigration Purposes?
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:
- Alien Smuggling
- Attempt or Conspiracy to Commit an Aggravated Felony
- Child Pornography
- Commercial Bribery
- Compelling Prostitution
- Counterfeiting, if term of imprisonment is one year or more
- Crime of Violence under 18 USC 16 if the sentence was at least one year or more
- Drug Trafficking, enumerated drug offenses
- Failure to appear in certain circumstances
- False documents (creating or using) if the sentence was at least one year or more
- Forgery if the sentence was at least one year or more
- Illegal Re-Entry after deportation for an aggravated felony
- Money Laundering
- National defense crimes
- Obstruction of Justice if the sentence was at least one year or more
- Ransom demands
- Receipt of Stolen Property if the sentence was at least one year or more
- Revealing the identity of an undercover agent
- RICO violations
- Sexual Assault
- Sexual Assault of a Child
- Tax Evasion
- Theft if the sentence was at least one year or more
- Trafficking Firearms
- Trafficking vehicles with altered VINs
- Wire Fraud
What are Crimes Involving Moral Turpitude (CIMT) for Immigration Purposes?
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).
What Drug Offenses Can Lead to Deportation?
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).
What Should a Criminal Defense Attorney Do When Representing a Non-Citizen?
- Determine if your client is a citizen and advise a non-citizen client who has been arrested that any plea of guilty before the court may result in deportation or denial of green card or citizenship.
- Advise the client to seek an opinion from an immigration attorney.
- A criminal defense attorney should, to the extent possible, seek to avoid anything that would be considered a conviction for immigration purposes.
- Seek dismissals or pre-trial diversions in appropriate cases.
- Seek to avoid convictions of aggravated felonies, convictions for crimes of moral turpitude, convictions for family violence offense or violation of protective order, and convictions for controlled substance offenses,
- First-time misdemeanor possession of marijuana cases that do not result in dismissal or diversion, obtain affirmative findings that the amount of marijuana possessed was 30 grams or less.
- Follow up with the immigration attorney on possible sentences. The length of sentence and type of sentence will often have a significant impact on the immigration consequences.
Can a Person Avoid Being Picked up by ICE by Accepting a Labor Detail?
“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.
Can a Person Avoid Deportation by Receiving a Sentence of Probation?
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.
Will a Pre-Trial Diversion Avoid Immigration Consequences?
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.
What Happens to a Non-Citizen When He or She is Arrested?
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.
What Happens When a Person Has an “ICE” Hold?
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.
What Offenses Lead to Mandatory Detention?
- Any offense covered in INA § 212(a)(2) (the criminal inadmissibility grounds)
- A second conviction for a crime of moral turpitude;
- Aggravated felonies;
- Most controlled substances charges;
- Certain firearm offenses;
- Miscellaneous espionage and sabotage crimes; and
- Terrorist activities.
How Can an Immigration Attorney Help Someone Who is Facing Mandatory Detention or Has an ICE Hold?
An immigration attorney may be able to assist by:
- Seeking a bond with ICE or in front of the immigration judge in a bond hearing; and
- Determining what immigration relief a person may have even with a mandatory detention.
What Can a Person Facing a Criminal Charge Do to Minimize Immigration Consequences?
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
Immigration Relief for Non-Citizens with a Criminal Conviction
Depending on the conviction and the status of the non-citizen, a number of avenues for relief may exist. These include:
- Adjustment of Status
- Did the client enter lawfully or was there a 245(i) petition filed on or before April 30, 2001?
- Does the client have US citizen immediate relatives?
- Cancellation of Removal
- Has the client been in the United States over 10 years?
- Does client have immediate relatives who are U.S. citizens?
- Would there be extreme hardship if the individual is removed?
- Asylum/Withholding of Removal
- Has client been in the country less than a year and/or fall under a particular group protected under the law which caused him to be persecuted in their home country?
- Victims of Trafficking and Violence Prevention Act Visas (U-VISA/T-VISA)
- Has client been the victim of a crime for which he/she cooperated with law enforcement to prosecute the suspect? Has client been forced to work?
- Violence Against Women Act Visas (VAWA)
- Has the client been a victim of family violence at the hands of a U.S. Citizen/LPR spouse?
- Deferred Action for Childhood Arrivals (DACA)
- Did client enter the U.S. as a child under age 16 before June 15, 2012?
- Has client had continuous residence in the U.S. since June 15, 2007 to present?
- Is client currently in school, high school diploma or GED, or honorably discharged veteran?
- Parole In Place
- Does the client have an immediate family member serving in the US armed forces?
Can Someone Who Has Been Deported Legally Come Back to the Country?
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.
Co-Author: Carrie Nguyen, Immigration Attorney
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.
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