Criminal Convictions &Deportation

by Marshall H. Hong, J.D.www.Hong-Immigration.com

www.ImmigrationInfoSite.com

This Presentation is not intended as a substitute for personalized legal advice from a qualified immigration attorney.

This Presentation is intended to give a general overview of the types of Criminal Convictions that could result in Deportation.

If you are not a U.S. Citizen and you have been charged with a crime, or if you are already facing Deportation due to a Criminal Conviction, you should consult with a qualified immigration attorney in your area for advice and possible representation.

At the conclusion of this Presentation you will find contact information for the Author – please feel free to contact the Author if you have specific questions or would like additional information on this or other immigration law topics.

Disclaimer

If you are residing in the U.S. and you are not a U.S. Citizen, certain Criminal Convictions could result in negative consequences with respect to your immigration status, which include:

Deportation from the United States. Refusal of Admission back into the United States

after temporary foreign travel (a/k/a Exclusion). Denial of an Application for immigration benefits

such as Lawful Permanent Resident Status. Denial of an Application for Naturalization

(Citizenship).

Criminal Convictions &Immigration Status

This Presentation will focus on the issue of which Criminal Convictions can lead to Deportation. Please visit

www.ImmigrationInfoSite.com

for information, articles, and other materials regarding other potential immigration-related consequences of Criminal Convictions, including Exclusion, and Denial of Immigration Benefits.

Convictions & Deportation

In most cases, a criminal charge must result in a “conviction” before it can lead to a Deportation.

It is important to note that a “conviction” for immigration law purposes may not be the same as a “conviction” under the criminal laws of your state. If you have been charged with a crime, and the criminal court disposed of the charge with an order other than a “conviction” – or if the case is still pending and the prosecutor offers an alternative disposition instead of a “conviction”, in exchange for your plea of guilty - you should consult with a qualified immigration attorney to determine whether it will be considered a “conviction” for immigration law (Deportation) purposes.

Must be a “Conviction”

For Immigration Law purposes, under the Immigration and Nationality Act (“INA”), a “Conviction” is defined as follows:

A person has been “convicted” of a crime if a criminal court (judge) has found that person guilty and has entered a formal judgment of guilt against that person.

In some cases, even if the court has not entered a formal judgment of guilt, a person may still be considered to have been “convicted” (for immigration law purposes) if the person was found guilty, or has entered a plea of guilty, and the judge has entered some form of punishment or restraint on the person’s liberty (for example, an order of Probation or Supervision).

“Conviction” Defined

The following dispositions of criminal charges are NOT considered to be “Convictions” for immigration law purposes:

Acquittals and other findings of “Not Guilty”. Charges that have been dismissed by the prosecutor. Cases resulting only in the imposition of court costs. Certain diversionary programs where the defendant

agrees to participate in some rehabilitative or other program, without an admission or finding of guilt.

Certain cases in which a conviction has been vacated on due process or constitutional grounds (and not solely to avoid immigration consequences).

Which Dispositions are NOT Considered “Convictions”?

There are several classifications of Criminal Convictions that can result in Deportability (the Convictions that result in Excludability may differ and will not be discussed here):

Crimes Involving Moral Turpitude (“CIMT”). Aggravated Felonies. High Speed Flight. Controlled Substance-Related Crimes. Crimes Involving Firearms. Domestic Violence Crimes. Miscellaneous Crimes.

Classification of Crimes - Deportability

The term “Crimes Involving Moral Turpitude” (“CIMTs”) refers generally to a range of crimes that are considered to be base, vile, or depraved. The characterization is based on the “evil intent” or “corrupt mind” of the perpetrator of the crime. While there is no clearly defined list of crimes considered to be CIMTs, they are usually those crimes that involve fraud or dishonesty, sex crimes, and those crimes involving serious harm or injury to another.

For a CIMT to be a Deportable offense, the alien must have been “convicted” (see above); the CIMT must have been committed within 5 years of the alien’s admission into the U.S.; and the CIMT must also be one that is punishable by a sentence of one year or more (even if the actual sentence is less than one year).

Crimes Involving Moral Turpitude

Some examples of crimes that have been found to be CIMTs: Robbery Arson Fraud Assault resulting in serious bodily injury Sex Crimes (an alien may also be Deportable for failure

to register as a Sex Offender if required to do so by law) Retail Theft

(the proper determination of whether a crime is a CIMT may vary from state to state and may require analysis by a qualified immigration attorney)

Examples of CIMTs

A non-Citizen may also be Deported if he has been convicted of two or more CIMTs “not arising out of a single scheme of criminal misconduct”

Under this section of the law, the crimes can have been committed at any time after admission into the U.S. In other words, unlike Deportability for a single CIMT conviction, there is no requirement that the CIMTs have been committed within 5 years of admission into the U.S. to render the alien Deportable.

Multiple CIMT Convictions

If an alien has been convicted of an “Aggravated Felony” at any time after admission into the U.S., he is Deportable for that offense.

As with CIMTs, there is no complete or clearly defined list of crimes that are considered to be “Aggravated Felonies”. Additionally, since criminal laws vary from state to state, the classification of a crime as an “Aggravated Felony” more closely follows federal criminal law than state law. This means that certain crimes which are classified as misdemeanors under the laws of a state may still be considered “Aggravated Felonies” for immigration law purposes, and therefore result in Deportability.

(If you have been charged with or convicted of a crime, you should consult with a qualified immigration attorney to determine whether the crime is or may be considered an Aggravated Felony.)

Aggravated Felonies

Some examples of crimes that have been found to be Aggravated Felonies: Murder, Rape, or Sexual Abuse of a Minor Trafficking in Controlled Substances Crimes of Violence for which the term of imprisonment is at least 1

year Crimes relating to Child Pornography Conviction for Entry Without Inspection following Deportation, if the

Deportation was based on an Aggravated Felony Conviction Attempt or Conspiracy to Commit any of these offenses

(The above list is not complete. A proper determination of whether a crime is an Aggravated Felony may vary from state to state and may require analysis by a qualified immigration attorney)

Examples of “Aggravated Felonies”

An alien convicted of the crime of High Speed Flight from an immigration checkpoint will be Deportable for that offense.

“High Speed Flight” from an Immigration Checkpoint

An alien will be Deportable if he has been convicted, at any time after admission to the U.S., of a Controlled-Substance Offense (Drug Offense) under the laws of any state, the United States, or a foreign country. Exception – an alien who has been convicted of only

a single offense, for possession only, of 30 grams or less of marijuana, will not be Deportable for that offense.

An alien will also be Deportable if, at any time after admission to the U.S., he is found to be a drug abuser or a drug addict.

Controlled-Substance Offenses

An alien who, at any time after admission to the U.S., has been convicted of a crime involving the purchase, sale, offer for sale, exchange, possession, carrying, or attempt or conspiracy to purchase, sell, exchange, possess, or carry a firearm in violation of any law will be Deportable.

Crimes Involving Firearms

An alien will be Deportable if, at any time after admission to the U.S., he is convicted of a crime involving: Domestic Violence; Stalking; Child Abuse, Child Neglect, or Child Abandonment; or the Violation of an Order of Protection.A crime of violence will be considered “Domestic Violence” if it is committed against the perpetrator’s spouse, against a person with whom the perpetrator has a child, or against a person who resides with the perpetrator.

Domestic Violence & Related Crimes

Convictions for the following “Miscellaneous Crimes” will result in Deportability:

Espionage. Sabotage. Importing an alien for immoral purposes. Violation of certain federal laws involving

Trading with the Enemy, Selective Service, Threats Against the President, and/or Travel Restrictions.

Miscellaneous Crimes

Due to space limitations, this Presentation is necessarily an incomplete and generalized overview of Crimes and Deportability. If you have been charged with or convicted of a crime, or are facing Deportation Proceedings for a Criminal Conviction, you should consult with a qualified immigration attorney to determine:

Whether the conviction falls into one of the classifications of Deportable crimes;

Whether you can Vacate the Conviction to avoid Deportation; and/or

Whether you are eligible for any other form of Relief from Removal, such as Cancellation of Removal, or a Waiver.

Deportability and Relief from Removal

If you are not a U.S. Citizen, and you have been charged with or convicted of a crime, it is important that you consult with a qualified immigration attorney regarding your options and how the charge or conviction may affect your status in the U.S., including the possibility of Deportation.

If you have been arrested, even if you believe you were not convicted, you may still wish to consult with an immigration attorney, as the definition of “conviction” for immigration law purposes may differ from the definition of “conviction” under the laws of the state in which you were arrested.

This presentation is intended only as a general overview and does NOT attempt to answer your individualized questions. For more information on these and other immigration law issues, please visit:

www.ImmigrationInfoSite.com

Conclusion

For More Information, visit us at:

www.ImmigrationInfoSite.comwww.Hong-Immigration.com

or contact Marshall Hong by email at:

Marshall@Hong-Immigration.com