Immigration consequences of criminal conduct is one of the most complicated areas of law in the United States. This introduction is meant to provide only basic information on the the immigration consequences of criminal conduct and in no way constitutes legal advice. The firm handles all facets of a non-citizen’s criminal immigration problems and recommends a thorough consultation with the firm to determine the best course of action.
Immigration consequences of criminal convictions are defined by an ever changing landscape of federal statutes, regulations, and court created case law. This area of law is extremely complex and it is extremely important that you consult with an attorney to determine what options you have when faced with deportation based on criminal convictions.
Immigration and Customs Enforcement (ICE) is a bureau within the Department of Homeland Security (DHS) that is tasked with deporting non-citizens with criminal convictions. In most cases, ICE has the burden of proof to demonstrate that the non-citizen has committed a crime and that that crime is a deportable offense. However, that is not always the case. In many cases where the non-citizen is attempting to apply for some form of relief, it is the non-citizen who has the burden of proof to demonstrate that he or she is eligible for the requested relief. The first question that arises is: What is a conviction for immigration purposes?
WHAT IS A CONVICTION FOR IMMIGRATION PURPOSES
There are only two things that are required for a “conviction” in the immigration context:
- That a) a judge or jury made a finding of guilt, or b) the non-citizen took a guilty plea or a plea of nolo-contondere, or c) the non-citizen has admitted sufficient facts to warrant a finding of guilt
- That a judge has ordered some for of punishment, penalty, or restraint on the non-citizen’s liberty
The immigration courts have interpreted the term “conviction” to mean many things. For instance, in Maryland, although a disposition of probation before judgment (PBJ) cannot be considered a conviction for any purpose in the State of Maryland, it will be considered a conviction in the immigration context. In addition, expungements mean NOTHING in the immigration context – in the immigration courts, an expunged conviction remains a conviction forever. The only way to erase a conviction in the immigration context is to vacate the conviction on appeal in the state court or through some type of state court post-conviction remedy.
In general, criminal convictions in the immigration context fall into five broad and overlapping categories: aggravated felonies, crimes involving moral turpitude, crimes of domestic violence, drug related crimes, and firearm offenses. There are other categories that will render a non-citizen deportable, but these categories are rarely prosecuted by DHS.
The term “aggravated felony” is a term of art used to describe a certain group of criminal offenses that can result in drastic immigration consequences. A non-citizen who commits an “aggravated felony” has little relief in the immigration court. In most cases, the non-citizen will get deported even if the non-citizen has been in the United States for many years and has extensive family ties herein the United States, even if the non-citizen has a spouse and children here in the United States.
The criminal offense does not need to be a felony in the state where the conviction occurred. For instance, in Maryland theft under $1000 is a misdemeanor. However, a conviction for the Maryland offense of theft under $1000 coupled with an imposition of a sentence of incarceration of one year or more will constitute can aggravated felony in the immigration consequence.
Aggravated felonies generally include very serious crimes, such as murder and rape and drug dealing. However, even relatively minor offenses may be classified as “aggravated felonies.” For instance, in Maryland second degree assault is a misdemeanor, but it carries a maximum sentence of ten years. A conviction for second degree assault – possibly for getting into a fight with someone at a bar – coupled with an imposition of a sentence of incarceration of one year or more will be classified as an “aggravated felony.”
A non-citizen who has been convicted of an “aggravated felony” is deportable and will be ineligible for bond and most forms of relief.
Here is a full list of the “aggravated felony” crime from section 101(a)(43) of the Immigration and Naturalization Act:
(43) The term “aggravated felony” means—
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18);
(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of Title 18) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(E) an offense described in–
(i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);
(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or
(iii) section 5861 of Title 26 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at3 least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at3 least one year;
(H) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography);
(J) an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
(K) an offense that–
(i) relates to the owning, controlling, managing, or supervising of a prostitution business;
(ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or
(iii) is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in–
(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18;
(ii) section 421 of Title 50 (relating to protecting the identity of undercover intelligence agents); or
(iii) section 421 of Title 50 (relating to protecting the identity of undercover agents);
(M) an offense that–
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter
(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;
(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.
CRIMES INVOLVING MORAL TURPITUDE
The Immigration and Naturalization Act has several negative consequences for non-citizens who commit crimes involving moral turpitude, or a CIMT. However, the Immigration and Naturalization Act does not define what a CIMT is. It has been defined by the courts as an offense that “necessarily entails conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” In general, the following offenses constitute a CIMT: crimes involving fraud, theft, many if not most sex crimes, robbery, burglary, carrying a concealed weapon, kidnapping, voluntary manslaughter, arson, blackmail, serious version of assault. This list is not comprehensive or absolute, because many offenses are not listed and not all the crimes that are listed are not absolutely CIMTs.
A non-citizen convicted of a CIMT will be inadmissible to the United States and inadmissible to adjust status. Waivers are available for CIMTs in certain cases. CIMTs can make a green card holder deportable in certain circumstances. Waivers and relief from removal may be available.
CRIMES OF DOMESTIC VIOLENCE
Some crimes committed against a minor may qualify as “child abuse” in the broad definition in the immigration laws. In addition, crimes committed against spouses, former spouses, co-habitants, and/or the fathers and mothers of your children may qualify as crimes of “domestic violence.” Crimes of “child abuse” and crimes of “domestic violence” will make a green card holder deportable. Waivers and other forms of relief may be available. Some crimes of domestic violence may also qualify as “aggravated felonies” and CIMTs.
Almost any drug-related conviction will have drastic immigration consequences. Any drug conviction, other than possession of 30 grams of less of marijuana, will make a non-citizen PERMANENTLY inadmissible to the United States, or in other words, you will never be able to get a green card. Most, if not all, drug convictions will trigger deportation for green card holders. However, waivers and relief may be available. Any conviction for CDS (Controlled Dangerous Substance) distribution, possession with intent to distribute, manufacturing will constitute an “aggravated felony.” Simply possession will not be considered a CIMT, but most other drug related offenses will constitute a CIMT.
Firearm offenses – a conviction under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying a firearm – will trigger deportation for green card holders. However, waivers and relief may be available.
The most important aspect of Immigration Consequences of Criminal Convictions is bond. Detention is the most powerful weapon available to ICE. Detention wears down non-citizens and makes them want to quit and give up their legal rights. Immigration bond then becomes extremely important. In some cases, non-citizens who did not get bond spent years in ICE detention fighting their cases. Bond is not always available because some criminal convictions will preclude the availability of bond. But, if bond is available, it must be aggressively sought.
DEPORTATION BASED ON CRIMINAL GROUNDS
There are only three ways to BEAT DEPORTATION based on a criminal conviction:
- Assert in the immigration court that the criminal conviction does not make the non-citizen deportable; or
- Vacate the conviction in state court, or
- Apply for relief from deportation if any relief is available.
DOES THE CRIMINAL CONVICTION MAKE THE NON-CITIZEN DEPORTABLE
DHS makes mistakes. Sometimes DHS makes mistakes in the charging document, the Notice to Appear. Sometimes, DHS makes mistakes by failing to submit the proper evidence (DHS has the burden of proof in the Immigration Court to prove the existence of the criminal convictions). Sometimes, there is emerging law that can be asserted on the non-citizen’s behalf. In these cases, only an experienced criminal immigration lawyer can correctly analyze DHS’s case against the non-citizen.
VACATE THE CRIMINAL CONVICTION IN STATE COURT
Once the conviction is vacated, say for instance on constitutional grounds, the conviction can no longer be used as a grounds of deportation. The firm handles post-conviction remedies in the State of Maryland and the District of Columbia. The most important thing to remember about post-conviction remedies is that the Immigration Court will NOT delay your deportation proceedings while you pursue a post-conviction remedy. This means that you should act quickly to try to vacate you conviction or you might be deported before you can get your conviction vacated. If you are deported after your conviction is vacated, you can try to return to the United States, but your return may be hampered by numerous obstacles. The best course of action is to start the post-conviction remedy early so you have time to complete the post-conviction process before you get deported.
RELIEF FROM DEPORTATION BASED ON CRIMINAL CONVICTIONS
If you are convicted of an “aggravated felony,” there is very little relief from deportation. The only remedy, other than vacating the conviction in the state court, is deferral of deportation under the Convention Against Torture (CAT). If you believe that you will be harmed if returned to your country of origin, you may apply for CAT deferral, even if you have been convicted of an “aggravated felony.” CAT deferral is a difficult relief to get, but not impossible.
If you have not been convicted of an “aggravated felony,” there are many forms of relief available to you. You may apply for asylum, withholding or removal, CAT withholding, adjustment of status, NACARA benefits, and/or cancellation of removal.
Recent Case Results
April 14, 2014 – Citizen of El Salvador is returned to the United States after victory in the U.S. Court of Appeals for the Fourth Circuit
Facts: On May 28, 2013, a citizen of El Salvador was ordered deported by the Department of Homeland Security (DHS) according to a final administrative order of removal. The family of the citizen of El Salvador came to the firm for help.
The Firm’s Representation: Our client had a conviction for fourth degree sex offense in Maryland. DHS alleged that the conviction was an aggravated felony, sex abuse of a minor. Immediately, the firm contacted DHS and demanded to file a rebuttal to DHS’s allegations. DHS also refused to turn over the conviction records upon which it made its aggravated felony determination. However, after consulting with their attorneys, DHS relented and turned over the records for inspection by the firm and permitted the firm to file a rebuttal. The firm wrote a rebuttal within several days and submitted it to DHS. DHS refused to change their position and ordered our client removed. The firm filed a petition for review in the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit). Unfortunately, the firm could not stop our client’s physical deportation because the prevailing case law of the Fourth Circuit for stays does not permit a stay of deportation for circumstances such as our client’s circumstances. After filing the opening brief in the Fourth Circuit, the attorneys for the government realized that the DHS’s position was untenable. DHS was forced to rescind the final administrative removal order. The firm then began the process of getting our client returned to the United States. After some reluctance, DHS issued our client a parole document so he could return to the United States. On April 14, 2014, our client returned to the United States.
Outcome: Our client’s case is now pending before the U.S. Immigration Court in Baltimore, Maryland. Our client can seek the relief of Temporary Protected Status.
October 1, 2013 – Citizen of Mexico receives cancellation of removal for certain non-permanent residents despite convition for Maryland sex offense in the fourth degree
Facts: In January 2012, a citizen of Mexico was detained by ICE – he had no status and a conviction for Maryland fourth degree sex offense. The citizen of Mexico consulted with several very reputable immigration attorneys who all stated that there was nothing they could do for the citizen of Mexico. The citizen of El Salvador’s family continued looking for a lawyer and they finally found our law firm.
The Firm’s Representation: The firm first analyzed whether there was any relief available for our client. Our client had lived in the United States for over thirteen years and he had a U.S. citizen wife and three U.S. citizen children. One of our client’s children was very sick. The firm analyzed whether our client was eligible for cancellation of removal, which has very strict eligibility rules regarding criminal convictions. Despite our client’s conviction, the firm realized that our client was eligible for cancellation of removal because his sex offense conviction could be categorized as a petty crime under the crimes involving moral turpitude statute. The firm prepared our client’s case for trial in December 2012 – the firmed filed a mountain of hardship evidence and a written brief on eligibility for cancellation of removal. The hearing went very well, but the Immigration Judge could not issue a decision because the cancellation of removal visas had already been exhausted for the 2013 fiscal year. The Immigration Judge scheduled a hearing for October 1, 2013, the first day of the next fiscal year.
Outcome: The Immigration Judge had written his decision months earlier and had the decision entered on October 1, 2013. The Immigration Judge granted the relief and now our client can now get his green card.
August 12, 2013 – Citizen of El Salvador is released from ICE detention after very nearly being physcially deported
Facts: A citizen of El Salvador was detained by ICE – he had no status and a conviction for possession of marijuana. He hired a very reputable immigration attorney. Nevertheless, the immigration attorney did not know how to deal with a Maryland conviction for possession of marijuana. The Immigration Attorney asked the Immigration Court to grant the citizen of El Salvador voluntary departure, which was granted on May 1, 2013. The citizen of El Salvador’s family was frantic because they did not want him to be deported. The family came to the firm on May 15, 2013.
The Firm’s Representation: First, jumped into action an filed a coram nobis petition in the Maryland state court. Second, the firm filed a motion to reopen and a stay of deportation with the Immigration Court. Time was ticking because ICE wanted to physically deport our client. After several phone calls to the Immigration Court clerks, the stay was granted. Two days later, the detention center asked our client to pack his belongings because he was on the deportation list for the day. Even though the firm had previously contacted ICE and informed them of the stay, the detention center had not received notice. After several further phone calls, our client was taken off the deportation list. The firm had stopped our client’s deportation with only two days to spare. After a hearing on July 26, 2013, our client’s coram nobis petition was granted. The firm then filed a joint motion to reopen and a joint motion for bond in the Immigration Court, with the permission of ICE, and our client was released from ICE custody on $3,000.00 bond on August 12, 2013.
Outcome: Our client lost everything when he pleaded guilty to possession of marijuana – he lost his TPS status, he was placed in removal proceedings, he was detained, and he was almost deported. Tragically, our client was completely innocent of these charges which was borne out on postconviction. Our client is now in the process of getting his TPS back and possibly seeking cancellation of removal in the Immigration Court.
June 11, 2013 – Citizen of Jamaica receives cancellation of removal, despite numerous convictions for drug-related offenses, after DHS drops “aggravated felony” charge
Facts: A citizen of Jamaica was detained by ICE in May of 2012 based on numerous drug-related convictions, the most serious of which was a conviction for possession with the intent to distribute (PWID) marijuana. His family came to the firm for help.
The Firm’s Representation:At first review of our client’s case, the outlook was bleak. DHS had charged our client with an “aggravated felony” for drug trafficking based on our client’s conviction for PWID marijuana. However, during the course of our client’s removal proceedings, on April 23, 2013, the U.S. Supreme Court decided Moncrieffe v. Holder, which held that certain convictions for PWID marijuana may, in some cases, not be “aggravated felonies.” The firm submitted a brief to the Immigration Court that asserted that Moncrieffe v. Holder was directly applicable to our client’s Maryland conviction for PWID marijuana and thus our client’s conviction for PWID marijuana was not an “aggravated felony.” DHS agreed and dropped the “aggravated felony” charge of removability. At that point, our client could proceed with his application for cancellation of removal.
Outcome: On June 11, 2013, the Immigration Judge granted our client’s application for cancellation of removal. Our client was released from ICE custody several hours later.
May 2, 2013 – Citizen of El Salvador is released after one year of ICE detention
Facts: A citizen of El Salvador was detained detained by ICE on May 8, 2012 and ordered deported on December 3, 2012. His fiance came to the firm for help.
The Firm’s Representation: First, the firm had to reopen our client’s immigration case. In early January 2013, the firm filed a motion to reopen with the Immigration Court, which was eventually granted. Then, the firm reviewed the underlying reason for the ICE detention – our client’s conviction for sex offense in the fourth degree. Unfortunately, our client had received really bad advice from his criminal defense attorney who advised our client to decline an offer of Probation Before Judgment from the sentencing judge. After analyzing the conviction and sentencing, the firm came to the realization that if our client had accepted the Probation Before Judgment, he would not have been subject to mandatory detention in the immigration context. The firm immediately filed a petition for post-conviction relief in the Circuit Court of Maryland.
Outcome: On April 22, 2013, the post-conviction petition was granted. On May 2, 2013, based on a motion for reconsideration of bond in the Immigration Court, bond was granted and our client was released from ICE custody later that same day. Naturally, our client and his family were thrilled to be released after almost one year of detention that was caused by bad advice from his criminal defense attorney. Our client’s immigration case remains pending in the Immigration Court, but our client now had several options available to him to get into a legal status.
March 11, 2013 – Citizen of Sierra Leone wins CAT protection based on sexual orientation despite three “aggravated felony” convictions
Facts: A citizen of Sierra Leone was placed in removal proceedings and charged as an “aggravated felon.” His family came to the firm for help.
The Firm’s Representation: The firm took our client’s case and discovered that our client had a viable claim under the Convention Against Torture (CAT). The firm asserted that our client would be harmed in his home country of Sierra Leone based on his sexual orientation.
Outcome: Based on the firm’s extensive documentation and testimony from an country conditions expert, on March 11, 2013, the Immigration Judge granted our client CAT protection. Our client is awaiting a decision by DHS whether to appeal the case to the Board of Immigration Appeals.
November 26, 2012 – After four years of litigation in the Immigration Court, a citizen of Guatemala receives a green card despite a conviciton for second degreee assault
Facts: In 2007, a citizen of Guatemala was placed in removal proceedings and he came to the firm for help in 2008.
The Firm’s Representation: The firm assisted our client’s wife in filing an I-130 petition petition on behalf of our client. Meanwhile, the Immigration Judge ordered deportation. After the I-130 was filed, the firm filed a motion to reopen in the Immigration Court, which was granted. Two years later, USCIS approved the I-130 petition. The firm then prosecuted our client’s adjustment of status in the Immigration Court. This was a tricky case because our client was convicted of second degree assault, with allegations of sexual assault. Even though our client was not convicted of sexual assault, the Immigration Judge has broad authority to consider any negative factors in the adjustment of status decision.
Outcome: On November 26, 2012, our client was granted adjustment of status, four years after the firm began the representation.
November 6, 2012 – Citizen of El Salvador receives CAT protection despite conviciton for “aggravated felony,” released after nearly two years of ICE detention
Facts: A citizen of El Salvador was placed in removal proceedings and charged as an “aggravated felon.” His family came to the firm for help.
The Firm’s Representation: The firm took our client’s case and discovered that our client had a viable claim under the Convention Against Torture (CAT). The firm asserted that our client would be harmed by the violent street gangs in El Salvador if he was deported.
Outcome: Based on the firm’s extensive documentation and testimony from an expert, on August 15, 2012, the Immigration Judge granted our client CAT protection. The decision was appealed by ICE. The firm is continuing our client’s representation in the Board of Immigration Appeals.
On November 6, 2012, ICE withdrew its appeal in the Board of Immigration Appeals and released our client from ICE detention. He had been in ICE detention for nearly two years. Later that day, our client called the firm from his mom’s house to tell us how grateful he was for our help, then he sat down to his first home cooked meal in over two years.
October 25, 2012 – Citizen of Mexico receives cancellation of removal despite conviction for possession of cocaine
Facts: A citizen of Mexico was arrested at his home and placed in removal proceedings. His family came to the firm for help.
The Firm’s Representation: The firm took our client’s case and discovered that our client was eligible for LPR cancellation of removal by two months – our client barely had the seven years of physical presence necessary to qualify for cancellation of removal. Our client was subject to mandatory detention, but we fast-tracked his case in the Immigration Court.
Outcome: On October 25, 2012, our client was granted cancellation of removal. He was released from ICE custody the next day. The total time of his incarceration by ICE – from arrest to granting of relief – was less than two months.
September 17, 2012 – Citizen of Jamaica receives CAT protection despite “aggravated felony” conviciton
Facts: A citizen of Jamaica was placed in removal proceedings and charged as an “aggravated felon.” His family came to the firm for help.
The Firm’s Representation: The firm took our client’s case and discovered that our client had a viable claim under the Convention Against Torture (CAT). The firm asserted that our client would be harmed by transnational drug trafficking organizations in Jamaica if he was deported.
Outcome: Based on the firm’s extensive documentation and testimony from an expert, on September 17, 2012 the Immigration Judge granted our client CAT protection. The decision is being appealed by ICE. The firm is continuing our client’s representation in the Board of Immigration Appeals.