Immigration Consequences Of Criminal Issues!

The last twenty years have seen a very drastic increase in the severity of the immigration consequences of criminal convictions, and, in some circumstances, for criminal conduct, even if it did not result in an arrest or conviction. For this reason, it is more important than ever that the criminal defense of a noncitizen focus not just on minimizing time in custody, but equally on avoiding the deportation that the noncitizen may face upon completion of their sentence. In California, criminal defense attorneys are required to inform their noncitizen clients of the actual immigration consequences involved in the particular defense strategy, such as a plea agreement. However, it is not uncommon to find that the client has not in fact received that critical information.

Far too often the immigration consequences have not been taken into account because the attorney does not see their job as including a defense of the client from the severe immigration consequences. That being said, there are many criminal defense attorneys who are skilled at providing a defense that attempts to mitigate the possibility of deportation at the same time as reducing the possible time spent in custody. For clients who have a history that includes criminal conduct it is important to determine the exact immigration consequences of that activity prior to traveling or filing an application with USCIS. Either is these actions can bring the existence of the criminal conduct to the attention of USCIS, and this can result in very drastic consequences.

At the less disastrous end of the spectrum of these immigration consequences is the inability to establish the required "good moral character" due to criminal conviction or conduct. This might prevent an applicant from being approved for naturalization, and it operates to prevent applicants from qualifying for a number of forms of relief from deportation in immigration court. At the other end of the spectrum of immigration consequences are the grounds of deportation for such activity. The dreaded "aggravated felony" crimes are among the worst examples of this movement toward exile of noncitizens for crimes that don't necessarily carry long sentences when committed by citizens. In addition, a person who returns to the U.S. without authorization after deportation for an aggravated felony faces a potential 20 year federal prison sentence, and United States Attorneys are increasingly prosecuting such cases.

The immigration consequences of criminal activity are grouped into the two broad categories of inadmissibility and deportability. The grounds of inadmissibility apply principally to applicants who are seeking a benefit from immigration such as admission to the U.S. at a port of entry, permanent resident status, citizenship, or a visitor visa. The grounds of deportability apply principally to those who already have status in the United States and are at risk of having that status taken from them in the process of being deported. However, someone with permanent resident status may face the grounds of inadmissibility upon attempting to return to the U.S. after a vacation. These crimes include quite minor drug offenses and crimes deemed to evidence "moral turpitude." For this reason, it is extremely important to consult an immigration attorney prior to travel, if the traveler has a history of criminal convictions.

DRUG OFFENSES
Drug offenses, even those which are quite minor, such as being under the influence, can result in both inadmissibility and deportability. Sale of a controlled substance or possession of a controlled substance for sale are both aggravated felonies and can trigger deportation. In addition, a state drug conviction that is analogous to a federal drug offense in the aggravated felony definition counts as an aggravated felony. Conviction of an offense "relating to a controlled substance" will also cause deportability and will cause inadmissibility for one who is not already admitted or for a lawful permanent resident who is returning from travel. And, even without any conviction, a determination of drug addiction or abuse after being admitted to the U.S. will cause deportability.

And, again, even absent a conviction, one who is a drug addict or abuser is inadmissible to the U.S., or if Immigration has "reason to believe" that she has assisted a drug trafficker or has benefited from such activity as the spouse or child of a trafficker. Finally, admission of all of the elements of a controlled substance conviction will also cause inadmissibility. A conviction of simple possession or even possession of paraphernalia will cause deportability and inadmissibility, unless the conviction is eliminated through state rehabilitative relief.

Crimes involving moral turpitude

The term, "crime involving moral turpitude" (CMT) refers to a classification of crimes which cause both inadmissibility and deportability for non-citizens, even when these same offenses would not be severely punished if committed by a U.S. citizen. It is not uncommon for crimes of moral turpitude to also be classified as aggravated felonies, when a sentence of a year or more has been imposed.

A crime is often classified as involving moral turpitude when there is an intent to defraud or to steal, to cause great bodily harm, where there is "malice", or where there is a "lewd intent." One conviction of crime of moral turpitude causes inadmissibility. The same is true for the admission of committing the offense, even without a conviction. The exception to this harsh rule is what is known as the "petty offense exception" for one CMT carrying a maximum possible sentence of one year and for which the noncitizen received a sentence of no more than six months.

A noncitizen is deportable if convicted of one CMT committed within five years after last admission to the U.S. for which a sentence of one year or more could have been imposed, or for two CMT convictions at any time after admission which did not arise out of a single scheme of criminal conduct regardless of the length of sentence. It is possible to be deportable but not inadmissible for a CMT. This means that a noncitizen is eligible to apply for adjustment of status to that of a lawful permanent resident in removal proceedings, even though he or she is deportable.

A noncitizen is inadmissible if he or she has been convicted of two or more offenses of any type for which the aggregate sentences to confinement actually imposed equaled five years or more. This will also be a bar to a finding of good moral character for purposes of naturalization, VAWA and other forms of relief, though in some cases a waiver may be available.
Conviction for domestic violence, regardless of the sentence imposed, is a ground of deportability. Domestic violence is not necessarily a CMT, unless actual infliction of harm or intent to cause serious bodily harm are proven.

This article is intended as an introduction to a topic in which there are significant legal changes occurring on a daily basis. It is not a substitute for legal research, not for working with an attorney experienced in the intersection of criminal law and immigration law. The central purpose of this article is to encourage caution and careful consideration by anyone potentially facing the consequences described here.

The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. Erich Keefe is an associate for the Shah Peerally Law Group PC located in Newark CA.. The office areas of practice are Immigration Law, Loan Modification neogotiations, and litigation. http://www.peerallylaw.com Ph:510 742 5887

Information: Shah Peerally is the President and managing attorney for the Shah Peerally Law Group PC located in Newark, California. Prior to his entrance into Immigration law practice, Shah worked in litigation and business law for Mc Nichols Randick O'Dea & Tooliatos LLP in Pleasanton, California. Later, Shah joined the Law Offices of Virender Goswami as a supervising attorney in business and employment immigration. Shah was also attorney of counsel for the Immigration law offices of Minter and Ahmad in Fremont, California. Fluent in French and Creole, Shah is a passionate and dedicated advocate. He is very active in the Muslim, Middle Eastern, South Asian and African communities. He regularly participates in lectures and free legal clinics. Shah has been personally commended by House Majority Leader Nancy Pelosi and Congresswoman Barbara Lee for assisting in their immigration workshops.