Immigration Consequences of Criminal Convictions

Criminal Convictions, even for relatively minor infractions, can have far reaching consequences for the Non-U.S. Citizen.  An incident that for a U.S. citizen might result in a stern warning from the judge and the payment of a fine could result in inadmissibility, deportation or the inability to become a U.S. Citizen. For this reason, it is important to consult an immigration attorney regarding Non-U.S. Citizens who have been charged with crimes.

Criminal defense attorneys are focused on minimizing the pain of their clients by trying to reduce the punishment imposed for a particular crime.  A criminal defense attorney will consider advising their client to plead guilty even if the client is innocent, if there will be little or no jail time, because the financial and emotional cost of a criminal trial is so huge. However, immigrant defendants have another, important issue to consider that the criminal defense attorney may not have in mind—whether a guilty plea will lead to immigration consequences.  That’s why it is critical to consult with an immigration attorney prior to accepting a plea agreement. That way, an individual can make an informed decision to take a plea or bring the case to trial.  Further, an immigration attorney that specializes in the intersection of criminal and immigration law may be able to work with the defendant’s criminal defense attorney and the States Attorney to fashion a plea agreement that will minimize or eliminate the risk of deportation. 

If an individual has already been convicted for any offense, it is absolutely critical that they consult with an immigration attorney before they seek immigration benefits, travel internationally or apply for naturalization.   A large percentage of individuals placed in removal proceedings are there because they affirmatively applied for immigration benefits and only then was it discovered that they were convicted of a deportable offense.  Even if the person was convicted many years ago, and has traveled internationally in the past, they can still encounter difficulties now when traveling.  The Department of Homeland Security’s information database has become more and more sophisticated and we are seeing many permanent residents who are placed in deportation proceedings because they took a brief trip abroad and upon their return, the inspecting officer discovered an old criminal record.   Depending on the circumstances, the immigration attorney may advise the individual to seek post conviction relief to overturn those old convictions.

Important Terms and Definitions

Conviction

A “conviction” under immigration law is broadly interpreted.  As long as a judge or jury has found the individual guilt and the judge has ordered some form of punishment, it will be considered conviction for immigration purposes.  Even if the sentence is suspended or there is some other form of “deferred adjudication,” it will be interpreted as a conviction under immigration law provided that there has been a finding of guilt.  Moreover, even if there has never been a charge or conviction, if an individual has admitted the essential elements of the crime, he can be found to be inadmissible for having committed the crime.  For example, in Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002), an applicant for an immigrant visa admitted to the physician doing the required visa application medical exam that he had smoked marijuana for a number of years.  He was denied a visa and entry to the United States even though he had never been charged or convicted of any crime.  Finally, an expunged conviction is still considered a conviction for immigration purposes and must be disclosed to the immigration service in the context of an application for immigration benefits. 

Crime of Moral Turpitude

The term “crimes of moral turpitude” generally refers to a crime that is inherently wrong, as opposed to simply being unlawful pursuant to law or regulation.  Some examples of crimes of moral turpitude are theft crimes (including shoplifting), crimes involving fraud, assault, aggravated battery, kidnapping, murder and arson.  Crimes that might not be considered a crime of moral turpitude might include regulatory violations like driving without a license or trespassing in a public park after closing hours.  Whether a particular conviction is for a crime involving moral turpitude is not always clear, and a careful reading of the criminal statute involved and applicable case law is required.

Controlled Substance Violations

Any controlled substance violation, even for simple possession of very small amounts of drugs, could have serious consequences, including inadmissibility (a bar to entry to the United States), deportability and an inability to become a U.S. Citizen.

Aggravated Felony

If a person has been convicted of an Aggravated felony, almost all avenues of relief are blocked off.  He will not be eligible for Asylum, Withholding of Removal or Adjustment of Status to Permanent Residency.  One of the few forms of relief available to individuals convicted of Aggravated Felonies is protection under the torture convention or in certain circumstances for non-permanent residents, a waiver of admissibility if he can show that U.S. Citizen spouse or child will suffer extreme hardship if he is deported.  The term “aggravated felony” sounds extreme, and includes grave crimes such as murder, drug trafficking and crimes of violence.  However, even a relatively minor crime, like misdemeanor shoplifting, can be considered an aggravated felony, if under state law, the crime is punishable by one year or longer. 

The above defined terms are commonly used in this complex area of law and in the next issue, avenues of relief will be presented.

Disclaimer: This article has been prepared by the staff of Immigration Law Associates, P.C. for informational purposes only and is not to be considered legal advice. This article does not constitute an attorney client relationship.