The consequences of a criminal conviction have been discussed at length in this guide—the defendant is punished with probation or imprisonment. Criminal convictions can also have serious and often tragic collateral consequences for non-citizens. This is especially true in the aftermath of September 11, 2001, as the government is ramping up immigration enforcement and aggressively searching for non-citizen inmates who are subject to deportation. This chapter provides an overview of the Removal Process and the offenses that subject an alien to deportation or that bar an alien from becoming a lawful permanent resident or US citizen
What Categories of Immigrants Can be Deported for Criminal Convictions?
Any non-citizen, regardless of his or her immigration status, can be subject to removal or deportation because of a criminal conviction. Generally speaking, there are three categories of non-citizens: Lawful Permanent Residents or LPR (i.e., a green card holder); non-immigrant resident with a temporary visa (such as a student or professional visa); and undocumented or illegal aliens (includes those who have overstayed their visas as well as those who have secretly crossed into the United States). If you fall under any of these non-citizen categories and have been charged with a crime, it is very important that you inform your attorney of your legal status in the United States and that you consult your attorney about the potential immigration consequences of a guilty/no contest plea or a criminal conviction on your charges.
Crimes that Trigger Deportability and Inadmissibility
The Immigration and Nationality Act recognizes three categories of crimes that subject a non-citizen to deportation or that prevent a non-citizen from becoming a lawful permanent resident or US citizen. For the purposes of this section, these crimes will be referred to as "deportable offenses."
Aggravated felonies are the most serious class of deportable offenses. Aggravated felonies include theft and crimes of violence. A "crime of violence" includes convictions for assault and felony driving under the influence. For any theft or crime of violence, a non-citizen can be placed in deportation proceedings and deported from the United States if he or she is sentenced to more than one-year imprisonment. If deported for an aggravated felony conviction, a non-citizen may be permanently barred from returning to the United States regardless of the non-citizen's length of residence in the US or the fact that the non-citizen has US citizen family members.
Crimes of moral turpitude are the second category of deportable offenses. Generally, a crime of moral turpitude is any crime that necessarily includes a base or vile act. Although the term has not been uniformly interpreted by case law, the following types of crimes have been recognized to constitute "moral turpitude":
Any felony or misdemeanor that contains as a necessary element an intent to defraud or an intent to steal;
Any felony or misdemeanor that contains as a necessary element intentional or reckless infliction of harm to a person or property;
Any felony or misdemeanor that contains malice as a necessary element;
Any sex offense that contains "lewd" intent as a necessary element.
Thus, murder, rape, voluntary manslaughter, robbery, burglary, theft, arson, aggravated forms of assault, forgery, prostitution, and shoplifting have all been consistently held to constitute crimes of moral turpitude.
If you are a legal alien who has been convicted of a crime of moral turpitude, you may suffer deportation if the crime allegedly occurred within five years since your admission to the United States and the crime carries a possible prison sentence of one year or more. If you have been convicted of two or more crimes of moral turpitude, you are subject to deportation regardless of when the crimes allegedly occurred and their possible sentences. If you were convicted of a crime of moral turpitude as an undocumented alien, you are ineligible for admission into the United States.
A third category of deportable offenses includes domestic violence, violations of any law relating to a controlled substance, violations of protective orders, and violations of any law involving purchasing, selling, using, or possessing a firearm or destructive device.
The Removal Process
When a non-citizen is convicted of a crime exposing him to potential removal, Immigration and Customs Enforcement, or ICE, will issue against the non-citizen a "detainer." IC can issue this document while criminal charges are pending, after the non-citizen has been convicted, or years after the non-citizen has served time for the conviction.
ICE issues the Detainer shortly after the Non-citizen has served time for conviction
An ICE detainer will usually remain in place until the noncitizen has completed the conviction sentence, at which point the non-citizen will be released to ICE custody and taken to an immigration detention center. Under federal law, state and local law enforcement authorities may only hold persons on immigration detainers for 48 hours after the completion of their jail time. This means that once you have completed your jail time, the immigration officials must take you into custody within two days. If they do not, you should contact your criminal defense lawyer and ask him or her to file a writ of habeas corpus with the court demanding your release.
Within 72 hours of your detention, ICE must give you a Notice to Appear (NTA). The NTA gives the factual basis for your removal and informs you of the date when your case will be heard by an immigration judge. You must examine the NTA for accuracy. For example, does the document have the proper date that you entered the United States? The answer to this question may affect your ability to fight your removal. Does the document correctly state your criminal convictions? A mistake in this area may make render you ineligible for bond.
The removal process is exceedingly slow, and a non-citizen could find himself in ICE detention for a lengthy period of time awaiting trial. Immigration judges determine a non-citizen's deportation or inadmissibility. Appeals from the decisions of immigration judges are heard by the federal circuit courts. Despite the potential dire consequences of these proceedings, they are civil, not criminal, in nature. Therefore, a non-citizen facing removal is not entitled to court appointed counsel. However, there are organizations that provide free or low cost representation to detainees. At your first appearance before an immigration judge, the court will provide you with a list of such organizations if you indicate that you need time to find a lawyer.
ICE issues Detainer while criminal charges are pending or years after the non-citizen has served time for the conviction.
ICE can issue a detainer against a non-citizen while criminal charges are still pending or even long after the non-citizen has served time for a deportable conviction. In such a situation, pay attention to the following pointers:
BE PREPARED TO PROPERLY RESPOND IF ICE COMES TO YOUR HOME OR WORK
IF ICE comes to your come, you need not open the door. An ICE official is not police and you are not obligated to let him or her into your home.
Do no answer any of the ICE official's questions. Politely respond that you would like to consult an attorney before responding to any questions.
Do not sign any documents without first consulting an attorney.
If the ICE agent detains you, tell your immigration officer that you are requesting a hearing with a judge and that you have a fear of returning to your home country.
CARRY THE FOLLOWING DOCUMENTS WITH YOU AT ALL TIMES
Green Card and immigration paperwork.
BE PREPARED TO FIGHT YOUR DEPORATION.
Keep a copy of all immigration documents, birth and marriage certificates.
Consult an immigration attorney immediately.
Mention to your attorney all factors that demonstrate your ties to the United States. These factors include:
Your length of residence in the United States. You can show residence through bank accounts and lease agreements.
Relatives who are citizens and legal permanent residents in the United States.
The hardship that your family (your children, wife, or husband) will suffer if you are deported.
Your employment history in the United States.
Your community and academic involvements.
Remedies to Deportation
There are almost no legal remedies that prevent the deportation of an alien convicted of an aggravated felony or violation of a controlled substance. For these offenses, length of residence in the United States or the existence of immediate family members with US citizenship provide no relief to the convicted alien. Limited immigration remedies are available to aliens who have been convicted of crimes of moral turpitude and domestic violence. As suggested before, the success of these remedies depends on the immigration status of the alien, the alien's length of residence in the U.S., and the alien's ties to relatives with citizenship or lawful permanent residency. For more information on these remedies, consult an immigration attorney experienced in deportation defense.