Everyone makes mistakes. While a U.S. citizen may commit a crime, pay a debt to society, and then resolve to start a new life, the same is not true for immigrants. For foreign nationals, the immigration consequences that follow from a criminal conviction are usually a person’s worst nightmare and many times are a much harsher sanction than the punishment received for the underlying offense. With the toughening of the immigrations laws, the category of criminal offenses that may lead to removal from the U.S. or to the inability to obtain permanent residence or naturalization has broadened dramatically
Our firm has expertise in addressing the immigration consequences of criminal offenses. We offer expert advice to criminal defense counsel who are entertaining plea negotiations on behalf of immigrant clients, and represent immigrants with criminal convictions in securing post-conviction relief to avoid any number of immigration disabilities.
With our vast knowledge and experience in the subject of immigration consequences of criminal activity, we have planned and successfully carried out many a creative solution within the criminal justice system to divert the harsh immigration consequences of criminal activity, allowing people who have had a criminal matter to achieve their rehabilitation in a dignified manner without suffering the severe consequences imposed by the immigration laws. Our office will analyze the immigration consequences of crimes for clients that want to immigrate and those people that do not want lose their immigration benefit.
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) have changed the traditional concepts of deportation and exclusion, broadened the scope of deportable offenses, and limited avenues of discretional relief previously available.
The IIRAIRA introduced a new statutory definition of conviction [101(a)(48)(A) INA]. The definition provides:
48(A) The term “conviction” means with respect to an alien, a formal judgment of guilt of the alien entered by a court, or if adjudication of guilt has been withheld, where —
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty or restraint on the alien’s liberty to be imposed.
The Department of Homeland Security takes the position that a matter under the California diversion statute is a “final conviction” because the defendant must plead guilty and is mandated to attend a drug program. There are four broad classifications of criminal activity that will result in removal proceedings brought against non-citizens. When representing non-citizens, appropriate sentencing strategies must be considered and appropriate notice as to the collateral immigration consequences of any plea must be made to the noncitizen. These offenses include, crimes involving moral turpitude, controlled substances and aggravated felonies. Lawful permanent residents are subject to removal proceedings if convicted of crimes involving moral turpitude if convicted of a crime involving moral turpitude committed within five years and is convicted of a crime for which a sentence of one year or longer may be imposed is deportable. Any non-citizen who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial is deportable.
The term “moral turpitude” is not specifically defined. The most widely accepted interpretation defines it as: “an act of baseness, violence or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to accepted and customary rules of right and duty between man and man.” The Board of Immigration Appeals has followed this definition and stated that moral turpitude involve, “conduct which is so contrary to the moral law, as interpreted by the general moral sense of the community, that the offender is brought to public disgrace, is no longer generally respected or is deprived of social recognition by good living persons.” Traditionally, sexual offenses, theft, and fraud offenses have fallen under this category.
In California, many misdemeanors and all felonies, including any “wobbler”, carry a possible sentence of one year or more. A “wobbler” offense (punishable either as a felony or a misdemeanor, but designated or reduced to a misdemeanor) carries a one-year sentence. This means any crime of moral turpitude with a potential sentence of one year and committed within five years of admission would be a deportable offense unless reduced to a misdemeanor.
Prior to IIRAIRA, the harsh consequences of deportation were avoided if the imposition of a sentence was suspended and jail time imposed only as a condition of probation. The jail time imposed would not count as part of a “sentence imposed” for immigration purposes. IIRAIRA specifically changed this by defining “sentence” to include the period of incarceration or confinement ordered by a court of law regardless of the suspension of the “imposition or execution of imprisonment or sentence in whole or part.” Criminal defense attorneys need to be aware of this. A noncitizen who has been convicted of a single crime of moral turpitude (petty offense) is not inadmissible so long as the maximum possible penalty for the crime is no longer than one year and the noncitizen is sentenced to no more than six months imprisonment.
The DHS may charge noncitizens with being inadmissible or with being deportable . A controlled substance offense is not predicated upon any distinction between misdemeanor or felony, or the imposition of a minimum sentence of confinement. A ground of Inadmissibility provides in part that, “a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country, relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act (21 U.S.C. 802).” It is also an inadmissible ground for “any alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any such controlled substance or is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance, is inadmissible.” Here, no conviction is required to find someone inadmissible. A noncitizen is otherwise lawful status may also be deportable for a controlled substance of offense if at any time after admission has been convicted of a violation of any law relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.
Finally certain offenses are considered so severe that these convictions known as, “aggravated felonies,” can render a noncitizen deportable, eligible for bond and ineligible for most forms of relief. Illicit trafficking of a controlled substance is an aggravated felony.
Our office has represented many noncitizens with crimes involving moral turpitude, controlled substance offenses and aggravated felonies. Often we have to go back to criminal court to change a conviction. This is known as post-conviction relief. In California a single control substance offense for simple possession dated prior to July 14, 2011 can eliminate the immigration consequences pursuant to “rehabilitative relief” such DEJ, Prop. 36, or Penal Code. § 1203.4 (expungment).
With the Anti-Drug Abuse Act of 1988, Congress created a new category of offenses, known as aggravated felonies, thereby creating a distinct basis for deportability under the INA. The initial definition of aggravated felony included drug trafficking, murder, and any illicit trafficking in firearms or destructive devices. Today the aggravated felony statute consists of twenty-one paragraphs, and some 50 crimes or general classes of crimes are enumerated. Some common violations are:
1. Crimes of violence or theft:
The amended act provides that crimes of violence and theft offenses, including receipt of stolen property and burglary, are aggravated felonies if the sentence imposed is at least one year, regardless of any suspension of the imposition or execution of sentence. Criminal defense attorneys should seek a sentence of 364 days or less to avoid aggravated felony under this category.
2. Rape and Sexual Abuse of a minor
Any conviction for rape or sexual abuse of a minor is now an aggravated felony regardless of the sentence imposed.
Crimes involving fraud may be designated an aggravated felony where the loss to the victim exceeds $10,000. Under state law the amount of loss is not always an easy determination.
Our office provides assistance to criminal defense attorneys and noncitizens alike to make sure that if there is a pending criminal matter, the defendant does not plead guilty to an offense with severe immigration consequences. If someone already has been convicted, there is still hope to go back to the criminal court and seek post-conviction relief if there was a statutory or constitutional violation in the case by the court or counsel.