Immigration Consequences of Criminal Convictions
Some of the most difficult and heart wrenching immigration cases are those involving criminal convictions, particularly convictions from an individual’s distant past. Say, for example, that you are a lawful permanent resident (LPR), committed a theft offense at the age of 21, and accepted a plea bargain so that you would not have to serve any jail time. What seemed like the most logical approach can turn into a ticking time bomb. Years later, you take a vacation to the Bahamas and, upon re-entering the United States, are detained for having committed an aggravated felony. Unfortunately, many people are under the assumption that if the penalty for committing a crime was satisfied in full (for example, a jail sentence, probation, community service, etc.), there will not be any immigration consequences. This misunderstanding leads people to do two things that can result in serious immigration consequences: 1) travel outside of the United States and 2) file for permanent residence, citizenship, or other immigration benefits within the United States.
Conviction of an aggravated felony can result in, among other things, an individual’s detention, revocation of a green card, and a permanent bar to a finding of good moral character. Determining whether a criminal conviction is an aggravated felony for immigration purposes involves a detailed analysis of the offense itself, the record of conviction, and the sentence imposed by the court (typically, a sentence of greater than one year of imprisonment must be imposed, regardless of time actually served). These factors are compared with the definition in the Immigration and Nationality Act of an aggravated felony and case law on the subject.
If it is determined that the conviction meets the definition of an aggravated felony, immigration relief is limited, but not necessarily impossible to obtain. An application for relief under the Convention Against Torture (CAT) may be filed and requires the applicant to demonstrate that there is at least a 51% chance that the applicant will be tortured if returned to his/her home country. Each individual’s background must be examined to determine the likelihood of success on a CAT claim.
Although the word “felony” is included in the term, the underlying criminal conviction could be classified as a misdemeanor and still qualify as an “aggravated felony.” The following are some of the criminal convictions which can be qualified as aggravated felonies in immigration court:
- Murder, rape, or sexual abuse of a minor;
- Drug or firearm trafficking;
- Any theft or violent crime for which the defendant received a sentence of at least one year (including any suspended sentences);
- Any crime involving fraud or deceit where the loss to the victim was over $10,000; and
- Any conviction for attempt or conspiracy to commit an aggravated felony.
As discussed in our discussion on Deportation or Removal, there are various avenues available when defending charges of deportability in court. However, an aggravated felony conviction will block most of those avenues. Therefore the best option for the defense is often to challenge the government’s accusation that the prior conviction constituted an aggravated felony. In many cases, the defendant was convicted in state court for a crime defined by state law. In those cases, the question whether the conviction amounts to an aggravated felony comes down to a determination whether the state crime is the equivalent of some federal crime which is an aggravated felony. There are two methods available to the immigration court in making this determination.
First, the judge could look only to the face of the state law and compare it to federal law. In doing so the judge compares the generic federal crime to the state crime. The state crime must “match” the federal crime to be considered an aggravated felony. For example, the federal crime of drug trafficking is an aggravated felony. If an individual were convicted under a state drug distribution statute but if the statute also criminalized conduct related to a very small amount of marijuana or the marijuana being distributed socially (without payment), that state law would be broader than the federal general crime of drug trafficking. In that case, the state law would not match the federal law, and the state conviction would not be an aggravated felony for purposes of deportation.
Alternatively, for state statutes criminalizing more than one crime, the judge could look past the face of the statute to the actual conduct for which the defendant was convicted. This can be more difficult to overcome. If the defendant’s actual conduct would be punished under the federal crime, then his or her conviction would be considered an aggravated felony. This is the case even if other conduct criminalized under the state criminal statute would not be criminalized under federal law.
Crime Involving Moral Turpitude
Conviction of a crime involving moral turpitude (CIMT) can also result in an individual’s detention, revocation of a green card, and difficulties establishing good moral character. Determining whether a criminal conviction is a CIMT involves a detailed analysis of the offense itself, the record of conviction, and the sentence imposed by the court. Typically, moral turpitude involves conduct that is contrary to the general standards of justice, morality, etc. Any conviction for crimes related to murder, theft, and variations of these crimes usually have some element of moral turpitude. A key difference in the classification of a conviction as a CIMT as opposed to an aggravated felony is the greater number of remedies available to deal with a CIMT. Waivers, the petty offense exception, and cancellation of removal are examples of relief that may be present before U.S. Citizenship and Immigration Services (formerly INS) and/or immigration court.
Attacking a Criminal Conviction
If no immigration relief is available, it may be necessary to seek post-conviction relief in the court where an individual was convicted. The goal in such actions is to have a conviction vacated altogether or the sentence reduced. This may then make it possible to file for immigration relief. Common reasons for attacking a criminal conviction include ineffective assistance of counsel, lack of due process, and misinformation given about immigration consequences of a conviction.
If you have been convicted of a crime and are unsure of the immigration consequences, it is important to consult with a knowledgeable immigration attorney. It is particularly important to do this prior to filing any applications with U.S. Citizenship and Immigration Services, filing for relief before immigration court, attending a green card or citizenship interview, or traveling outside of the United States.
Our Immigration Attorneys
Livesay & Myers has a team of experienced immigration lawyers and support staff across offices in Fairfax, Fredericksburg and Manassas, Virginia, including Spanish speakers in Manassas and Fairfax. Our immigration team represents clients in Virginia, Washington, D.C. and across the United States. Be sure to review the qualifications and experience of each of our immigration attorneys to find the one who is the best fit for you. Then, contact us to schedule your consultation with one of our experienced immigration lawyers today—in person, over the telephone, or via webcam on Skype or Google Hangouts.