In recent years, immigration law has prompted the increased removal of noncitizens from the United States. A large percentage of removal proceedings are based upon criminal convictions. Even convictions for minor criminal offenses may trigger removal from the United States. The Immigration and Nationality Act (“INA”) is the main legal authority pertaining to immigration issues. The U.S. Supreme Court has imposed a duty on criminal defense lawyers to advise non-citizen clients of the potential immigration consequences to pleading guilty or being found guilty of a crime after trial.
When analyzing the potential immigration consequences of a criminal conviction, it is important to determine the individual’s immigration status. A U.S. citizen is someone who either was born in the United States or a noncitizen who obtained U.S. citizenship through naturalization proceedings. A U.S. citizen does not incur immigration consequences from a criminal conviction. Noncitizens, however, incur such consequences. A noncitizen who attains the status of a legal permanent resident is most affected by criminal convictions. A noncitizen who is undocumented in the United States has no legal status to be in the country and is typically subject to removal regardless of criminal conviction.
Depending on the criminal conviction, a noncitizen may be subject to an order of removal and excluded from admission to the United Sates for at least five years and possibly life if convicted of an aggravated felony. A noncitizen who was admitted into the country lawfully is subject to deportation no matter how long he or she has been in the United States if convicted of a crime involving moral turpitude (“CIMT”) or an aggravated felony. In some cases, such persons may be barred from ever returning to the country.
Grounds of inadmissibility to the United States include conviction to a CIMT unless the crime was committed while under age 18 and at least 5 years before an admission or the crime has a maximum potential sentence of one year in jail or less and the sentence imposed was six months or less. Any crime or act related to a controlled substance as defined by the Controlled Substance Act, drug trafficking or drug abuse is also grounds for deportation. A person is also deportable if convicted of two or more crimes which the aggregate sentence was five years or more or for a prostitution conviction.
Grounds for deportation from the United States include conviction for a CIMT if committed within five years of admission where a sentence of at least one year was imposed and if convicted of two CIMTs at any time. Any controlled substance offense, including conspiracy or attempt, which results in a conviction is also grounds for deportation unless the offense is for 30 grams or less of marijuana possessed for personal use. A conviction for any crime involving the purchase, sale, use, possession or carrying of a firearm or destructive device, including conspiracy or attempt is also grounds for deportation. The same holds true for domestic violence crimes and aggravated felony offenses.
Crimes involving moral turpitude are generally defined as conduct that is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general and encompass offenses that include reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness or recklessness. Some examples include murder, manslaughter, kidnapping, attempted murder, assualt with intent to rob or kill, assault with a deadly weapon and aggravated assault. In general, most sex offenses are considered CIMTs such as rape, prostitution and indecent assault and battery. Most property offenses such as arson, robbery, larceny and malicious destruction of property are considered CIMTs as well as theft or fraud. Certain weapons offenses are also considered a CIMT. By contrast, crimes such as violating a regulatory law or one involving strict liability or negligence or operating under the influence are not considered CIMTs. It is important for a criminal defense attorney to research both the federal and state law concerning the possible crime of conviction as well as applicable case law to determine whether the crime is considered a CIMT, before advising a client on pleading guilty.
A conviction for an aggravated felony triggers automatic deportation and a permanent bar from returning to the United States. What constitutes an aggravated felony may depend on how the crime is classified under state law where it was committed. In some circumstances, a misdemeanor under state law may be considered an aggravated felony under federal law. While controlled substance offenses have an independent ground for deportation, many controlled substance offenses are also considered aggravated felonies that trigger deportation. Such crimes as illicit trafficking, which is considered any unlawful trading or dealing in any controlled substance and drug trafficking which includes almost all distribution related offenses and some possession offenses, are aggravated felonies. In addition, most firearm offenses such as possession, sale, and use of a firearm is an aggravated felony as well as domestic violence offenses and other crimes such as smuggling, espionage, treason and sabotage.
While there are many grounds for which a noncitizen may be removed and deported from the United States, there are grounds for relief. Under federal law, a noncitizen who has been a lawful permanent resident for at least five years and has resided in the country for at least seven years after being lawfully admitted, who has not been convicted of an aggravated felony and who the judge determines merits relief, may be eligible for cancellation of removal. A lawful permanent resident may also be eligible for cancellation of removal if continuously present in the United States for no less than 10 years, was a person of good moral character for that term, has not been convicted of an offense that makes them deportable or inadmissible and who can establish that removal would result in exceptional and extremely unusual hardship to themselves or family members.
An individual may also be eligible to seek asylum or withholding of removal if the individual can establish a fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion in their home country. However, individuals convicted of an aggravated felony are barred from seeking asylum and if convicted of an aggravated felony with a sentence of imprisonment of five years or more, are barred from withholding removal. Further, a person convicted of any particularly serious crime which generally includes drug distribution offenses and dangerous or violent crimes such as possession of child pornography are barred from both asylum and withholding of removal.
A criminal defense attorney has a duty to advise a noncitizen client of the immigration consequences of pleading guilty. Failure to do so constitutes ineffective assistance of counsel. The attorney must provide complete and accurate advice as to the immigration consequences resulting from the criminal case in a language that the client understands, or alternatively, consult with an experienced immigration lawyer for purposes of obtaining such advice. Creative and experienced counsel will advocate for immigration-friendly dispositions for clients who wish to resolve their cases before trial and seek to remain in the United States. While this is not always possible, it should always be explored.
Criminal convictions can have a devastating impact on noncitizens. If you are not a U.S. citizen and have been charged with a crime, it is important that you hire a criminal defense attorney or criminal defense law firm that understands immigration law and how your case may impact your ability to continue living in the United States, and/or to become a U.S. citizen. Call the Law Office of John L. Calcagni III, Inc. today for a free consultation.