Facing criminal charges is a daunting scenario as it is, but adding negative immigration consequences on top of an already unbearable situation is unfortunately the reality of our American jurisprudence. For those who are not United States citizens, obtaining a criminal conviction can have a broad range of adverse consequences, spanning from deportation and removal, to forfeiting the right to re-enter the U.S. and losing the ability to naturalize as a citizen. These punishments affect all noncitizens—whether legal permanent residents (LPRs), or those in the country without any legal status. And unfortunately, being convicted of one of these crimes can have you removed or deported from the country regardless of your family make-up, how long your residency here has been, or whether you have established strong ties to the community.
The Immigration and Nationality Act (INA) covers the major categories of deportable offenses. Under INA Section 237, a “deportable alien” is anyone who has been convicted of a crime of moral turpitude, multiple criminal convictions or an aggravated felony, amongst other infractions. All noncitizens fall under the deportability sections of the INA, regardless of whether you have been granted asylum, have a “green card,” have obtained a student visa to study abroad, or have been brought to the U.S. on a work visa.
Crimes Involving Moral Turpitude (CIMT)
Immigration status determines how an individual is affected by this provision. A person without any legal U.S. immigration status who is convicted of a crime involving moral turpitude within five years after entering the country (and the crime carries a possible sentence of a year or longer), is deportable. However, an LPR is deportable if convicted of a CIMT within ten years of entry, so long as a sentence of one year or more may be imposed.
This includes a broad range of crimes, including but not limited to:
- Animal fighting
- Child abuse
- Credit card/Identity fraud
- Criminal threats
- DUI with Injury
- Multiple DUIs
- Failure to register as a sex offender
- False pretenses
- Felon in possession of a firearm
- Felony hit and run
- Larceny (grand or petty)
- Malicious destruction of property
- Receiving stolen goods
- Transporting stolen property
Crimes involving moral turpitude are infamously vague and thus subject to frequent litigation. Whether a charge necessitates moral turpitude is defined by federal immigration case law (not state law), and includes offenses consisting of intent to defraud, intent to cause great bodily injury, and theft with intent to deprive permanently. The Ninth Circuit Federal Court of Appeals has recognized crimes of moral turpitude as “crimes that involve either fraud or base, vile, and depraved conduct that shocks the public conscience.” Navarro-Lopez v. Gonzales, 455 F.3d 1055, 1058 (9th Cir. 2006).
Multiple Criminal Convictions
Under INA Section 237, any alien who is convicted of two or more crimes involving moral turpitude at any time after admission to the United States is deportable. However, the crimes must not have arisen out of a single scheme of criminal misconduct. This is the case regardless of whether the convictions were administered in a single trial or not.
The INA does not define “single scheme of criminal misconduct,” but in Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), the Board of Immigration Appeals (BIA) interpreted the phrase to mean:
when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct.
Therefore, the government must prove that the crimes were not part of a single scheme of criminal misconduct in order to deport someone on this ground.
Any alien who is convicted of an aggravated felony at any time after admission is deportable. This means that any conviction of an aggravated felony makes a person eligible for deportation—regardless of how long after admission to the country it occurred. The aggravated felony provisions in the INA were first introduced by the Anti-Drug Abuse Act of 1988 and included offenses such as murder, drug trafficking, arms trafficking, and any attempt or conspiracy to commit such acts. Over time, subsequent legislation and litigation has expanded the definition and list of offenses. There are now hundreds of offenses listed as aggravated felonies under INA Section 101(a)(43), even including certain misdemeanors. Some, but not all offenses require a sentence imposed of a year or more to be considered an aggravated felony. Furthermore, each crime enumerated under the statute is an aggravated felony, regardless of whether it violates federal, state or foreign law.
This is where a knowledgeable and experienced criminal defense attorney comes in. It is imperative to have someone who understands the immigration consequences of a criminal conviction by your side when facing any charges.
Here’s an example:
Liza comes to the United States as a child with her parents. She lives in San Diego her entire life, but does not obtain any legal immigration status. While attending college, she borrows her roommate’s car without permission to visit home for the weekend. Liza is charged with Penal Code (PC) Section 487, grand theft. Liza’s criminal defense attorney advises her to plead guilty to PC 484, petty larceny, considering it is a misdemeanor which carries a sentence of only up to six months in county jail and a maximum fine of $1,000. However, a skillful attorney would negotiate a deal pleading to a lesser offense such as Vehicle Code (VC) Section 10851, theft and injury of a vehicle. This way, Liza would not be convicted of a crime involving moral turpitude and should be able to avoid an aggravated felony charge as well.
Controlled substance violations are deemed deportable under INA Section 237(a)(2)(B)(i). The statute recognizes as deportable:
[A]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in [21 U.S.C. 802]), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana…
For a noncitizen to be deportable under this provision, he/she must actually be convicted of a controlled substance violation, i.e., the substance at issue must be listed within Title 21 of the U.S. Code, colloquially known as the Controlled Substances Act (CSA). For deportability to be triggered, the substance involved in the conviction for possession, trafficking or manufacturing must be listed on one of the five Schedules governed by Title 21. Mellouli v. Lynch, 135 S.Ct 1980 (2015). The particular substances that comprise the federal Schedules are found in 21 C.F.R. 1308.
Generally, a conviction involving a substance not listed on one of the federal Schedules will not trigger deportability under the INA.
For example, the Fourth Circuit Court of Appeals held that a conviction for possession of khat did not constitute a deportable offense since the drug was not a federally controlled substance (and the khat itself was not properly analyzed to learn whether it contained any chemicals listed on the Schedules). Argaw v. Ashcroft, 395 F.3d 521 (4th Cir. 2005). Likewise, as indicated in the statute, there is a limited exception built into INA Section 237 if a noncitizen is convicted of a single offense involving 30 grams or less of marijuana for personal use (although marijuana is listed as a controlled substance under the CSA). This exception to the deportation ground—and possible waiver of inadmissibility—relates to a single incident involving simple possession, use, or possession of paraphernalia.
Our immigration system even permits for the deportation of drug abusers or addicts. An addict for this purpose is defined to be “any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.” 21 U.S. Code § 802(1). This ground is purely conduct-based and can be administered even without a conviction. In practice, however, the U.S. does not tend to deport noncitizens who are legitimately seeking treatment for drug abuse and who have not been convicted of criminal offenses (except where a person admits or is found to have stated they are an addict for the purposes of joining a drug court or therapeutic program).
However, if a noncitizen pleads guilty or no contest to a drug offense, he/she will face possible deportation, regardless of whether they were sentenced to or successfully completed a drug treatment or diversion program. For this reason it is of the utmost importance to discuss possible immigration consequences with a seasoned attorney before accepting any plea agreements involving drug crimes or drug treatment programs.
Crimes of Domestic Violence
There are certain clear and established elements the government must prove in order to justify deportability for a crime of domestic violence. Immigration and Customs Enforcement (ICE), the federal law enforcement agency tasked with overseeing immigration and national security policy, must demonstrate, for instance, that the noncitizen has in fact been “convicted.” This term may seem straightforward, but it can encompass a judgment of conviction—whether handed down by a court or accepted as a guilty plea—but also includes several other dispositions as well (i.e., deferred sentencing agreements, diversion programs, withheld adjudications and the like). INA Section 101(a)(48)(A).
Secondly, the noncitizen must have been convicted of a “crime of violence,” as defined in Title 18, Section 16 of the U.S. Code. Under the Code, crime of violence is defined as:
[a]n offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or…any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S. Code § 16.
This means that in order to invoke deportability grounds, a state criminal statute must include the use, attempted use, or threatened use of physical force against the person or property of another. It is important to note, for instance, that not every state assault statute requires the explicit use of physical force, and may therefore leave open a defense to removal. See Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010).
Furthermore, the action must have been against a person. INA § 237(a)(2)(E)(i). A crime of violence under Title 18 may be against the property of another, but the statutory language within the INA states that a crime of domestic violence must be against a person, and can include a crime of stalking, a crime of child abuse, child neglect, or child abandonment. Lastly, the noncitizen facing deportation must share a qualifying domestic relationship with the victim. These include a current or former spouse, an individual with whom the person shares a child in common, an individual who is cohabiting with or who has cohabited with the person as a spouse, an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurred, or any other person who is protected from the noncitizen’s acts under local, state and federal laws. INA § 237(a)(2)(E)(i).
ICE must establish these four elements by clear, convincing, and unequivocal evidence. Moreover, immigration adjudicators must use a “circumstance-specific” approach in determining whether a conviction for a crime of violence was committed against a person in a protected relationship to the noncitizen. Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016). This means that an immigration judge may also use factual evidence, in addition to the elements of the state offense, when analyzing whether an eligible domestic relationship exists.
Like any other deportability ground, a crime of domestic violence can cause a permanent resident, refugee or any other noncitizen to be placed in removal proceedings and charged with being deportable. Furthermore, you only need to receive a single conviction of a domestic violence offense to be considered deportable. And as discussed, within the context of the INA, a domestic violence offense covers a wide range of conduct, from traditional domestic abuse crimes like domestic battery on a spouse or partner, to stalking and violating a restraining order.
Another case example:
Eddie is a renowned chef working in New York on a culinary exchange program. His plan is to open a restaurant of his own and apply for adjustment of status to legal permanent residence. However, Eddie cultivates a rivalry with another young chef in the same circle and a physical altercation ensues. The chef takes out a restraining order against Eddie, but Eddie does not heed the warning and visits the chef’s restaurant several times. The police are contacted and Eddie is charged and convicted of violating a restraining order. He now faces deportation and a possible bar to later re-entry.
Since there is no specific domestic violence ground of inadmissibility and varying doctrines circumscribe when domestic assault is a crime involving moral turpitude, there may be circumstances where although deportable, certain permanent residents may well still seek re-adjustment of status or cancellation of removal. The BIA has held that even where a firearms violation triggers removability under INA § 237(a)(2)(C), it does not prompt the “stop-time” rule as it is not specifically referred to in Section 212(a)(2). Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000). This is why speaking with a seasoned immigration and/or criminal defense attorney is of such great import—knowing the specific rules and waivers available to you can make the difference between being deported and remaining legally in the United States.
It is important to recognize the immigration consequences you face when stepping foot into court. Punishments related to your criminal charge can range in scope. For instance, deportation is not the only consequence noncitizens are subject to if convicted of certain crimes. Inadmissibility is another possible implication stemming from a criminal conviction. Under INA Section 212, a noncitizen may not be able to re-enter the country after leaving, naturalize to U.S. citizenship or apply for an adjustment of status (better known as obtaining a “green card” or moving from illegal to legal immigration status).
Additionally, to qualify for cancellation of removal, a noncitizen must demonstrate that he/she has not been convicted of a CIMT and that he/she has sustained good moral character for the ten years immediately preceding the date of application. INA Section 240A. And under INA Section 101(f)(3), no person may be found to have good moral character who has been convicted of a crime listed in INA Section 212(a)(2)(A), which includes a crime involving moral turpitude.
The INA dispenses exceptionally harsh penalties for those noncitizens convicted of controlled substance violations and/or trafficking in controlled substances. Although a noncitizen may avoid deportation with a Section 212(h) waiver, a single offense for simple possession of 30 grams or less of marijuana does however trigger INA Section 212(a)(2)(A)(i)(II) inadmissibility. Also of importance, particular offenses involving drug paraphernalia—dependent on the specific statute involved—may prompt additional inadmissibility grounds. This is why a noncitizen facing any such offense should immediately consult with an experienced immigration and/or criminal defense attorney to discuss Section 212(h) eligibility and/or deportation risks.
Aggravated felonies carry particularly harsh immigration consequences for noncitizens convicted of these crimes. Regardless of immigration status, noncitizens who have been convicted of an aggravated felony are prohibited from receiving almost all forms of discretionary relief that would shield them from deportation and/or from being readmitted to the United States at any future date.
For example, aggravated felons are ineligible to apply for asylum, voluntary departure, cancellation of removal, and are subject to mandatory detention without bond. As with CIMTs and multiple convictions, there has been extensive litigation related to the definition and scope of aggravated felonies concerning immigration status. Whether a particular crime qualifies as an aggravated felony has become the center of much argument, leading to a plethora of court appeals. It is imperative to consult an experienced immigration and/or criminal defense attorney for a full legal analysis of your particular case and charge, and especially before accepting a plea deal—to avoid possible aggravated felony charges or other serious implications.
More often than not, what may be the best case scenario for a defendant in a criminal framework is a damaging one in the world of immigration law. Therefore it is vital that any noncitizen charged with a crime understand the distinct immigration consequences that can emerge from decisions made in their criminal case. A knowledgeable criminal defense attorney will be able to tell you how these decisions will make an impact, and help you in avoiding the pitfalls associated with deportation and inadmissibility under the Immigration and Nationality Act.
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Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.