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Can A Criminal Conviction Cause An Alien Resident To Be Deported?

by | Nov 27, 2020 | Criminal Procedure |

 

A criminal conviction has a number of consequences, whether it is a misdemeanor or felony.  The offender is subject to paying fines and costs, supervision on probation, or even incarceration in jail or prison.  In addition, any alien present in the United States from another country, whether here legally or illegally, is subject to deportation if convicted of a crime.  Any foreign visitor should be aware of the impact that criminal laws have on their continued status here.

A person who is not a citizen or national of the United States but rather an alien on a temporary visa or a permanent resident (e.g. “green card” holder) may be subject to deportation proceedings if any immigration laws are violated.  An alien who is convicted of ANY of the following crimes is considered deportable under federal law:

  • CRIMES OF MORAL TURPITUDE – An alien who is convicted of a crime involving moral turpitude that can result in a sentence of incarceration for one year or longer is deportable IF the crime was committed within 5 years of the date of admission (or 10 years after date of admission if the alien obtained lawful permanent resident status). 8 U.S.C. 1227(a)(2)(A)(i).  However, any alien who at ANY TIME after admission is convicted of TWO OR MORE crimes involving moral turpitude arising out of separate, unrelated transactions is deportable.  8 U.S.C. §1227(a)(2)(A)(ii).  A crime of moral turpitude has no hard and fast definition but has been vaguely defined as a depraved or immoral act, a violation of the basic duties owed to fellow man or a “reprehensible act” with a mens rea of at least recklessness.  This includes criminal offenses under federal or state law with the intent to kill, the intent to commit great bodily harm, the intent to commit fraud, the intent to commit a larceny, or the intent to commit an offense with lewd intent.
  • AGGRAVATED FELONY – An alien who is convicted of an aggravated felony at any time after admission is deportable. 8 U.S.C. §1227(a)(2)(A)(iii).  “Aggravated felonies” include state or federal crimes related to murder or sexual abuse of a minor, illicit trafficking in controlled substances, money laundering, certain firearms and explosive device offenses, a crime of violence punishable by at least one year imprisonment, a theft offense punishable by at least one year imprisonment, ransom, child pornography, racketeering and gambling, prostitution and human trafficking, treason and espionage, fraud, smuggling, counterfeiting, immigration law violations, perjury and bribing witnesses, or failure to appear in court for certain felony proceedings.  8 U.S.C. 1101(a)(43).
  • HIGH SPEED FLIGHT FROM IMMIGRATION CHECKPOINT – An alien who is convicted of the crime of high speed flight from an immigration checkpoint contrary to 18 U.S.C. 758 is deportable. 8 U.S.C. §1227(a)(2)(A)(iv).
  • FAILURE TO REGISTER AS SEX OFFENDER – An alien who is convicted for failing to register under the Sex Offender Registration and Notification Act contrary to 18 U.S.C. 2250 is deportable. 8 U.S.C. §1227(a)(2)(A)(v).
  • CONTROLLED SUBSTANCE OFFENSES – An alien who ANY TIME after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any controlled substance offense under federal or state law (other than possessing 30 grams or less of marijuana for personal use) is deportable. 8 U.S.C. §1227(a)(2)(B)(i).  In addition, any alien who is or at any time after admission is or has been a drug abuser or addict is deportable.  8 U.S.C. §1227(a)(2)(B)(ii).
  • CERTAIN FIREARM OFFENSES – Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device in violation of any law is deportable. 8 U.S.C. §1227(a)(2)(C).
  • DOMESTIC VIOLENCE, STALKING AND CHILD ABUSE – Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, neglect or abandonment is deportable. 8 U.S.C. §1227(a)(2)(E)(i).  A crime of domestic violence means “any crime of violence against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.”
  • VIOLATION OF PERSONAL PROTECTION ORDER – Any alien who at ANY TIME after admission is subject to a personal protection order issued by a court and that court determines the alien has engaged in conduct that violates the portion of a personal protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the personal protection order was issued is deportable. 8 U.S.C. §1227(a)(2)(E)(ii).
  • HUMAN TRAFFICKING OFFENSES – Any alien who commits or conspires to commit human trafficking in the United States or outside of the United State, or who the government knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons is deportable. 8 U.S.C. §1227(a)(2)(F).
  • MISCELLANEOUS CRIMES – Any alien who at any time has been convicted of espionage (18 U.S.C. 37), sabotage (18 U.S.C. §105), treason and sedition (18 U.S.C. §115), threatening the President (18 U.S.C. §871), expedition against a friendly nation (18 U.S.C. §960), violating the Military Selective Service Act (50 U.S.C. §3801 et seq.), violating the Trading With The Enemy Act (50 U.S.C. §4301 et seq.), violating rules for entering and departing the United States (8 U.S.C. §1185), or importing aliens for immoral purposes (8 U.S.C. §1328) is deportable.

Once the immigrant attains U.S. citizenship, then many of these deportable offenses do not apply.  It is only in rare circumstances that a naturalized citizen can be “denaturalized”, have their citizenship revoked, and then be subject to deportation.  Some examples include falsifying or concealing relevant facts during the naturalization application process, participating in subversive organizations during the first 5 years of citizenship (e.g. ISIS or Al Qaeda), refusing to testify before Congress when subpoenaed regarding treasonous or subversive acts against the U.S. government during the first 10 years of citizenship, or bring dishonorably discharged from the U.S. military before serving 5 years.

Upon arrest, an alien may be detained by Immigration and Customs Enforcement (ICE) until the criminal charges are resolved.  The federal government does not have to wait until conviction to initiate removal proceedings in Immigration court (after all, there are legal reasons why an alien may be deported without a crime being committed).  If you are deported, you may have to wait between 5 to 10 years to return to the United States (20 years if this is a second deportation).  8 U.S.C. §1182(a)(9)(A).  If you were deported due to an aggravated felony, you might never be permitted to return to the United States.  8 U.S.C. §1182(a)(6)(B). 

In Padilla v. Kentucky, 559 U.S. 356; 130 S.Ct. 1473; 176 L.Ed.2d 284 (2010), the U.S. Supreme Court held that criminal defense attorneys must advise their clients about the deportation risks associated with a guilty plea.  If the law is clear that the offense is deportable, attorneys must inform their clients that they will be deported.  If the law is unclear that the offense is deportable, attorneys must advise that deportation is possible.  Many courts now advise defendants during the plea-taking process that the consequences can include adverse effects to their immigration status in this country.  In short, immigrants should know that committing crimes can cause them to be thrown of the country.  The failure of the defense attorney or the court to inform you of the consequences can result in the conviction being set aside.

If you are charged with any criminal offense, you need a skilled criminal defense lawyer in your corner to aggressively protect your rights and hold the prosecutor to the burden of proving guilt beyond a reasonable doubt.  The costs are simply too high to settle for anything less.  Even if the evidence against you is strong, a lawyer may be able to negotiate a resolution to a lesser offense that does not trigger deportation proceedings.  When you need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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