Immigration Consequences of a Criminal Conviction 2017-10-17T20:02:14+00:00

Immigration Consequences of a Criminal Conviction

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Immigration Consequences of a Criminal Conviction

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A criminal conviction is often grounds for deportation or removal of a person in the country without permission. The Immigration Service also considers criminal history if an individual applies for any discretionary immigration benefit (a work visa, permanent residence or citizenship).

While expunging California misdemeanor records assists individuals in job and housing searches, the immigration effects of most convictions remain intact. For immigration purposes, expungements work only for a first conviction of certain minor drug offenses. Eliminating a first drug conviction is extremely valuable, since drug convictions have such bad immigration consequences.

In 1996, Congress enacted the IIRIIRA which included a very broad definition of conviction and defines many crimes, including some misdemeanors, as “aggravated felonies” that are mandatory grounds for deportation. In general, crimes that are considered “aggravated felonies,” “crimes of moral turpitude,”° “crimes of violence,” Recently the immigration laws have changed and while in the past most domestic violence it is not the case today. In addition, most drug crimes are mandatory grounds for deportation of a non-citizen who is in the US legally.

One who entered the country without inspection is generally “inadmissible” on criminal grounds, and may be “inadmissible” (i.e. removed) for an arrest or admitting facts amounting to the essential elements of a crime of moral turpitude whether or not there was a conviction. Conviction of an aggravated felony is not grounds for inadmissibility (but entry without inspection imposes a 3 or 10 yr bar to admission).

If an immigrant is convicted of simple possession of a controlled substance, a dismissal of that conviction will erase that conviction as grounds for deportation.

Non-citizens Should Petition for Expungements if:

  • Convicted of simple drug possession with no other convictions (including expunged convictions). Failure to expunge will result in mandatory deportation. OR
  • Convicted of a lesser offense that is similarly analogous to one eligible for dismissal under the First Offender Act — this would include possession of drug paraphernalia and being present in a place where drugs are used or sold. OR
  • Convicted for a non-deportable offense (i.e. a misdemeanor that is not a violent crime or a crime of moral turpitude). But note: the individual must disclose criminal history to the Immigration Service which will consider it in any moral character determination.

Checklist for Non-citizens with a Criminal History:

1. What is the individual’s immigration status?

An undocumented person (who entered without inspection) may be rendered inadmissible and subject to expedited removal. A non-citizen with papers may be deportable on criminal grounds. The grounds of inadmissibility are not identical to the grounds of deportability. I.e., a person can be inadmissible who simply admits committing acts that constitute the essential elements of a crime of moral turpitude. Conviction is not necessary.

2. is the immigrant’s crime a “deportable offense”?

Conviction of an Aggravated Felony generally is a crime can that is a deportable offense.

Conviction of an involving moral turpitudeConviction of a crime involving a Controlled Substance(most drug offenses). Except for possession of less than 28.5 grams of marijuana.

Certain other violent crimes less than 1yr sentence), domestic violence (including stalking, violations of protection orders, and crimes against children (including abandonment) if convicted after September 30, 1996), drug abuse, and visa or document fraud, crimes affecting the security and safety of the US, etc.

The exceptions are Petty offenses, Alien smuggling of one family member, Juvenile offenses 5 yrs earlier.

3. Would it otherwise affect a discretionary immigration decision?

Lesser and even expunged offenses may still factor into a “moral character” determination which is required for citizenship, permanent residence, cancellation of removal, and other discretionary immigration benefits. Infractions, which cannot be expunged, will also be considered.

4. What are the immigration consequences of a criminal conviction?

  • Mandatory Removal (deportation), if convicted of an aggravated felony after admission to the US. Non-citizens face a presumption of deportability for convictions prior to admission.
  • Once in custody, non-citizens will have a “hold,” meaning they will be detained by the immigration services and deported upon completion of their sentence. Removal proceedings are usually completed prior to release from custody. The district court may also order removal at the time of sentencing. Removal proceedings may also begin if s/he violates parole or probation, or applies for an immigration benefit or registers with the Immigration Service.
  • After sentencing is complete, it is rare that a non-citizen will be released unless serving as a witness cooperating in a criminal prosecution and able to prove he or she is not a threat to people or property.
  • In most cases, there is no access to judicial review.
  • Aggravated felons are ineligible for asylum and are generally ineligible for cancellation of removal, suspension of deportation, and registry, which are discretionary benefits that require a showing of “good moral character.” This is true even if removal will cause extreme hardship to US citizens.
  • Aggravated felons are barred from receiving voluntary departure.
  • Removal on criminal grounds results in an automatic 5-year bar to reentry (twenty year bar for a second removal).

The individual must receive advance permission to return the US. A waiver may be available for an aggravated felon who receives a full and unconditional pardon.

5. What options remain?

  • Expungements of records of non-deportable offenses and one conviction of simple possession, lesser offenses.
  • Conviction does not necessarily make a person permanently ineligible for citizenship. Relief might be available if a non-citizen’s life or freedom would be threatened because of his or her race, religion, nationality, membership in a particular social group, or because of his or her political opinion.

During your plea If your were not advised of the immigration consequences of a plea/conviction, (as required by state law). If not, one could argue that ineffective assistance of counsel renders the conviction legally defective for immigration purposes, under a writ of corum nobis.

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