If you are an undocumented immigrant or a foreign national, facing the process of removal may be fearsome and may cause you much worry. However, there are many steps you can take to avoid deportation when charged with a criminal conviction.
What Is a Conviction?
Under immigration law, a “conviction” has a much broader statutory definition than its customary meaning. See US Citizenship and Immigration Services Policy Manual. A conviction for immigration purposes goes beyond the court finding you guilty of a crime—Here, if you have admitted guilt in any of the records when facing a criminal charge, you are found to have a conviction. This applies to both misdemeanor and felony offenses.
Think of the following:
- Has a judge or jury found me guilty of a crime?
- Has a judge imposed a sentence on me for a crime?
- Did I admit to the guilt of the crime on the record? (depositions, interrogatories, etc.)
- Did I admit to facts that sufficiently support a judge’s finding of guilt for a crime?
- Did I enter a guilty plea for a crime?
- Have I ever expunged a crime from my record?
If you answered “YES” to any of the foregoing questions, you have a conviction on your record and, depending on the offense, may be subject to deportation. As all cases vary, it is not always clear whether the outcome resulted in a conviction.
Consult with an immigration attorney on whether you have convictions on your record that have grounds for deportation. For more guidance on convictions and expungement records, click here.
What Is Deportation/Removal Proceedings?
Deportation is the formal act of removing an undocumented immigrant or foreign national from the US and returning the individual to his/her last country of residence. The deportation procedure is often initiated by immigration authorities known as Immigration and Customs Enforcement, or ICE. Otherwise, general immigration matters are also addressed by US Citizenship and Immigration Services (USCIS).
Any immigrant, including green card holders, who has not become a US citizen is subject to removal proceedings if found violating immigration laws or participating in criminal conduct.
If you have been issued a Notice to Appear, you have been assigned a hearing in immigration court. An immigration judge will hear your case and consider all evidence before providing a decision on whether to issue an order of removal or allow you to stay in the US. Consult with an immigration lawyer to evaluate the best method to win your case and remain in the US.
Grounds for Removal
According to the Immigration and Nationality Act (INA) §237, if any of the following applies to you, you are deportable. Seek immigration counsel immediately.
Aliens Subject to Removal Proceedings
- Conviction of a crime of moral turpitude committed within 5 years after date admitted to the US
- 2 or more convictions of crimes of moral turpitude, not arising out of a single scheme
- Conviction of a crime for which a sentence of 1 year or more of incarceration may be imposed
- Conviction of an aggravated felony at any time after admitted to the US
- Convictions of crimes of domestic violence/Violators of protection orders
- Drug abusers/trafficking
See INA §237 (8 USC §1227) for the full statute of deportable aliens.
Crimes Subject to Deportation
Undocumented immigrants with convictions on their record are not necessarily guaranteed to be deported. The federal government must have grounds to begin the removal process of a foreign national. For instance, the severity of the offense committed is a substantial factor on whether the individual has the possibility to avoid being removed from the country. However, there are certain crimes that are very probable to lead to deportation, referred to as “crimes of moral turpitude.”
The definition of crimes of moral turpitude is not black and white—these crimes stem from long precedent but are also ever-evolving with time. The state in which the crime was committed may be a substantial factor, too. According to the INA, crimes of moral turpitude generally involve the element of purpose or intent to harm persons or things. INA §212(A)(2). Obtain a lawyer to research the particular crime you are convicted of in order to assess whether you are at higher risk of facing deportation proceedings.
Committed Offenses At High Risk of Deportation
- Crimes of Domestic Violence
- Theft-related offense
- Drug-related offense
- Firearms-related offense
- Aggravated felonies
In order to avoid any risk of removal, your number one priority is to protect yourself! Do this in two ways: (1) Be good; and (2) Get your citizenship.
The federal government needs to show grounds for deportation of an individual. Obey immigration laws and avoid any criminal conduct. If you are facing any criminal charge, the court must identify whether you are a US citizen or non-citizen. If you are an undocumented immigrant or a foreign national with a criminal conviction, your case will be brought to the attention of immigration authorities and the Department of Homeland Security will commence the removal process.
Get your citizenship
It is critical to naturalize as soon as you can. Once you are granted your US citizenship, the stress and worry of removal will cease. However, there are many requirements you must meet in order to become a US citizen. General requirements include: demonstrating your physical presence and continuous residence within the US for a required period of time and displaying good moral character for a required period of time.
When applying for citizenship, you will also be required to give your criminal offense history. Keep in mind, there are certain factors that may prevent you from being eligible for naturalization. If you have committed an aggravated felony, you will be denied citizenship.
In addition, providing false information to immigration authorities may lead to your denial of citizenship, so be sure to provide true and accurate information on all forms. Click here to see if you are eligible to apply for naturalization and to begin your application!
Green Card or Visa Holders Charged with Criminal Offense
Cardholders who have been charged with a criminal offense should immediately consult with an immigration lawyer. Cardholders still face immigration consequences when found violating immigration or criminal law.
Remember, if you are a green card holder, you must renew it every ten years prior to its expiration; however, a criminal offense may affect your card renewal. Retain an immigration lawyer prior to renewing your green card, and have him/her work with your defense counsel to assess and negotiate your charges.
Not all criminal offenses have grounds for removal—so speak with your experienced counsel to develop strategies for effective plea bargains and how to renew your green card.
- Lessen the criminal offense
- Motion to Vacate Plea (see below)
- Readjust your status
Argue there’s Not a Conviction
Keep in mind that not all criminal offenses have grounds for deportation. Have your defense counsel argue that there is no conviction on the record, therefore there are no sufficient grounds for removal. Offenses that are subject to deportation involve crimes of moral turpitude. Think: “What is morally reprehensible?” These crimes generally involve aggravated felonies, sex crimes, drug crimes, etc.
To avoid deportation, have your defense counsel argue that the crime was a minor offense, such as petty theft or simple assault. The lower the offense, the higher chance you have at avoiding removal.
Adjust Your Status
Adjustment of status is the process of applying for a green card in order to become a US lawful permanent resident. One of the most common ways in adjusting your status is if you already have a relative that is a US citizen. Here are a few steps to get you started on adjusting your status:
- Determine if you are eligible to apply for a green card.
- If you have a US citizen relative (spouse, parent, child over 21 years of age), have him/her file an I-130 for you.
- File an I-485.
- Be compliant and stay up-to-date with any appointments and interviews prior to receiving a decision.
Remember to be honest and give accurate information about your history throughout the process because any false or misleading information can be held against you receiving a green card. For more information on adjustment of status, click here.
Motion to Withdraw Plea
If you have pleaded guilty to a crime or have been convicted of a criminal offense, retain an experienced immigration lawyer to represent you and file a Motion to Withdraw Plea. It may be that your defense counsel advised you to plead guilty to a criminal offense without making you aware of the immigration repercussions, such as deportation. This motion allows foreign nationals to challenge their conviction, and if granted, may receive a new trial.
This is well-known as the “Padilla motion” in immigration law, named after the landmark case Padilla v. Kentucky. In 2010, the United States Supreme Court held that an immigrant who pleads guilty to criminal charges may contest the conviction if the defense counsel failed to adequately inform him of probable deportation proceedings.
Cancellation of Removal
If you are facing a criminal charge, your counsel may seek to remove your case from criminal court and proceed in immigration court. One large benefit of this tactic is that immigration courts have the authority to grant discretionary relief to the non-citizen facing consequences of deportation.
One form of relief is granting Cancellation of Removal. If granted, the judge discontinues deportation procedures and depending on your case, you may be eligible to apply for a green card. Retain an experienced immigration lawyer to analyze your case and prepare your defense.
Cancellation of Removal cases is extremely hard to win. The judge will take several factors into consideration of granting this form of relief. Refer to INA §240 (8 USC §1229b). Some factors include:
- How long have you been present in the US?
- Do you have good moral character?
- Do you have any criminal convictions?
- Would removal cause any extreme hardship to your US-citizen relative?
There are distinctions between requirements of what green card holders and undocumented immigrants must show in order to be granted this relief.
You may be eligible to file an I-601 Waiver in order to avoid removal proceedings based on a criminal conviction. A waiver is when the federal government excuses the criminal offense and allows you to either (1) keep your green card; or (2) apply to adjust your status. An I-601 Waiver will excuse some crimes of moral turpitude; however, there are certain criminal grounds on which the US government will find too serious to permit a waiver.
Therefore, you may want to retain a lawyer to analyze your case on whether you are eligible for one. The processing time for an I-601 Waiver will vary depending on the complexity of the case, and the filing fee is $930.
Lastly, you may file an I-589 Application for Asylum to avoid being removed from the US. In order to file, you must show that you have experienced or be subjected to great affliction in your home country on account of race, religion, membership in a particular social group, or political opinion. 8 USC § 1158. In order to gain US protection, you must file within one year of your arrival, and there is no filing fee.
Remember, when filing your application, you must be honest—fraudulent asylum applications or applications based solely to gain employment authorization will negatively affect you.