Immigration & The Impact Of Criminal Charges
If you are not a US citizen, criminal charges can have a devastating impact upon your ability to remain in the US, your ability to be readmitted to the US, your ability to get a green card, and your ability to become a US citizen. This blog post will focus on your ability to remain in the US – in effect, your ability to avoid removal, otherwise known as deportation.
When I talk about those who are not US citizens, I mean people who hold green cards, or are here on some sort of visa, or who have been admitted as refugees, as well as those who are completely undocumented or are waiting on an initial application for some immigration benefit.
So if you or someone you love is not a US citizen, pay attention.
The problem with criminal charges is that they can, and often do, result in criminal convictions. And convictions are what you need to be worried about when it comes to immigration consequences, with a few exceptions I won’t get into here.
A Conviction, for Immigration Purposes
So what is a conviction, for immigration purposes?
In basic terms, a conviction exists, for immigration purposes, where, FIRST, you’ve been found guilty by a judge or jury, or have entered a guilty or nolo plea, or have admitted sufficient facts to warrant a finding of guilt, AND SECOND, where the judge has ordered some form of punishment or penalty or restraint on your liberty.
The question of whether or not a specific resolution constitutes a conviction most often comes up in the context of diversionary programs set up for first offenders. These programs exist to help first offenders avoid convictions, and in Connecticut, we are lucky because defendants are usually not required to plead guilty or admit to a set of facts in order to be granted a program. In other states, however, a guilty plea or admission of facts is required, which means the person will avoid a conviction for state purposes, but will be considered to have a conviction, for immigration purposes.
Convictions and Deportation
So let’s say you catch a conviction. Does this mean you are going to get deported?
Not necessarily. It all depends upon whether the offense for which you were convicted falls into one of two categories:
- grounds of inadmissibility, which apply to those who did not enter the US lawfully, like undocumented immigrants; or
- grounds of deportability, which apply to those who entered the US lawfully, like green card holders, visa holders, or refugees.
And, as to each of these categories, the key kinds of convictions you need to be worried about are:
- aggravated felonies;
- crimes involving moral turpitude;
- drug convictions;
- firearms convictions;
- prostitution or commercialized vice convictions;
- certain federal convictions;
- domestic violence, stalking, and/or child abuse convictions; and
- convictions for violation of domestic violence-related protective order
Now, as to each of these, you always want to avoid a conviction for an aggravated felony, if you can. Aggravated felonies are defined by federal statute, and include many offenses that are serious in nature, but also some that only misdemeanors under state law, like any theft conviction involving a sentence of at least one year.
Beyond that, not only are aggravated felonies a ground for deportation, they also bar you from many forms of relief from removal, like asylum, cancellation of removal, and withholding of removal. As well, an aggravated felony conviction permanently bars you from ever returning to the US.
Crimes Involving Moral Turpitude (CIMT’s)
You also want to avoid crimes involving moral turpitude, otherwise known as CIMT’s. There is no definition of CIMT in federal statute or regulation, which means that determination of whether a specific crime is a CIMT has been left to the courts, and is most often found in case law.
Whether a person is ultimately inadmissible or deportable for a CIMT depends upon the number of convictions, the potential or imposed sentence, and the date the offense was committed. For example, one CIMT alone, or 2 CIMT’s with a total sentence of 5 years or more, will render one in inadmissible. Beyond that, 2 CIMT’s at any time, or one CIMT that carries a potential sentence of a year or more, within 5 years of admission, will render one deportable.
Finally, convictions for drugs, prostitution or commercialized vice, firearms, domestic violence, stalking, child abuse, and violation of protective orders, will render one either inadmissible or deportable regardless of the length of the sentence.
Hire a Lawyer who Practices both Criminal Law and Immigration Law
If you or someone you love face criminal charges and are not a US citizen, it is absolutely critical that you hire a lawyer who understands how criminal law and immigration law interrelate. Because your ability to remain here in the US may well depend upon it. And too many criminal defense lawyers out there don’t handle criminal cases with an eye towards immigration consequences.
Don’t drop the ball in criminal court. Because if you do, you will end up deep in a hole in immigration court, with few, if any, options at your disposal. I have seen it happen way too many times. If you are serious about staying in the US, you need to start the fight in criminal court.
Contact J. Christopher Llinas at Llinas Law Immigration and Criminal Defense. He stands ready and available to assist you with your case.