Immigration Consequences in Criminal Cases
Do I have a risk of being deported? If you are not a U.S. Citizen and you are charged with a felony or misdemeanor, you should be thinking about possible immigration consequences.
Immigration Consequences Can Include Deportation
There is a massive immigrant population in southeastern Michigan. When an individual who is not a citizen or lawful permanent resident of the U.S., such as an admitted Alien, is “convicted” of a crime, there will likely be immigration consequences. This applies to all non-citizens regardless of how long they have resided in the United States. The immigration consequences of a criminal conviction can be direct (jail, probation, fines, etc.) or indirect (deportation, inadmissibility, loss of professional license, damaged reputation, difficulty in finding employment, etc.).
A non-citizen being charged with a crime is generally not enough to trigger immigration concerns. In some serious felony cases, U.S. Immigration and Customs Enforcement (ICE) can detain someone who is deportable pending the outcome of a criminal matter (this generally occurs in Federal Cases only).
What is a conviction for immigration purposes?
A “conviction” for immigration purposes is either a finding of guilt or admission of guilt or a plea of no contest to a criminal allegation. A common misconception is that probation or a suspended sentence will not lead to deportation. This is not true.
Another common misconception is that a plea taken under advisement or a deferred sentence will avoid potential deportation if a criminal conviction is not entered. If an immigrant takes a plea and a sentence was depending compliance with certain conditions, a conviction still occurs, and that person is deportable. Even if a conviction is never entered in the criminal charge, this is true. Another myth is that deferred judgments do not cause immigration consequences. However, all required for a conviction under immigration law is an admission of the elements of an offense and imposition of a sentence. Probation counts as a sentence, and in many cases, the maximum sentence that could be imposed under Michigan law—not the actual sentence imposed—determines whether a person can be deported. Juvenile offenses and vacated sentences are not considered deportable offenses, yet sentencing under the Holmes Youthful Trainee Act will likely trigger the immigration consequences of a criminal conviction.
What types of crimes can trigger deportation?
Crimes that trigger immigration issues under the Immigration and Nationality Act (INA) are either “aggravated felonies” or “crimes involving moral turpitude.” The commission of certain crimes will render an Alien inadmissible or removable, and at times, both.
Aggravated Felony Convictions and Immigration Consequences
Aggravated felonies are listed in the Federal Immigration Statute (8 USC 1101(a)(43)) and include many crimes that are not considered felonies in Michigan. In those cases where an alien was admitted to the U.S. within five years of committing an aggravated felony, they become immediately removable. An immediate removal is a form of expedited removal under the INS.
Crimes Involving Moral Turpitude
Crimes involving moral turpitude (CIMT) are not listed in the Immigration and Nationality Act. They involve conduct that is “inherently base, vile, or depraved, and contrary to accepted rules of morality.” A conviction qualifies as a CIMT will render an Alien inadmissible or removable. Examples are retail fraud (shoplifting), theft, fraud, domestic violence, spousal abuse, child abuse, OWI, DUI, and driving under the influence without a license.
Multiple Convictions and Inadmissibility
Though an offense on its own is not a CIMT or an Aggravated Felony, an alien convicted of two crimes, regardless of their classification under INA, is immediately inadmissible.
Crime Involving Mortal Terpitude within Five Years of Entry into the U.S.
Under INA Sec. 237, an Alien convicted of a CIMT punishable by a year or more within five years of admission to the U.S. becomes immediately removable.
Drug Possession, Sale, or Manufacture
Aliens convicted of drug crimes might face mandatory or permissive deportation and other severe immigration consequences. A conviction for possession, unless the drug is marijuana and the weight is under a specific amount, carries the possibility of deportation under INA § 237(a)(2)(B)(i). Drug trafficking, sale, possession with intent to sell, or delivery convictions often result in mandatory deportation or inadmissibility.
How does the country of origin impact deportation affect the immigration consequences of a criminal conviction?
When deportation is an issue, the country where the person is possibly being deported to, and the potential consequences of their deportation can be considered. For example, it may be less likely that a non-citizen who is originally from Iraq or Afghanistan would be ordered to return to their former home in light of the political upheaval. Also, it can be argued that a person who would be subjected to torture if they were returned to their home country should not be deported. People threatened with deportation do have the right, under most circumstances, to have a hearing to determine if their deportation is warranted. A great immigration lawyer must be hired under these circumstances.
If I’m convicted of a crime, can I re-enter the United States?
If found Inadmissible, pursuant to INA Sec. 212, an Alien outside the United States seeking a visa to enter the U.S., or an Alien within the U.S. seeking to adjust their status to a Lawful Permanent Resident (colloquially referred to as a Green Card Holder), will be barred from doing so, due to the charges brought against them and possible conviction.
What happens to the family of an alien who is deported following a criminal conviction?
Clearly, the aforementioned demonstrates the steeply negative consequences of a conviction under State or Federal law on an Alien’s immigration matters. Such convictions may force an Alien to depart the U.S. and leave behind immediate family members, such as a spouse, children, or parents. Further, for an Alien eligible to adjust status to a Lawful Permanent Resident of the U.S., such a conviction may bar them from doing so.
Michigan Criminal Attorney Experienced with Immigration Consequences of a Criminal Conviction
If you are a non-citizen or Alien charged with a felony or misdemeanor crime, it is critically important that you understand the risks that you face, including the immigration consequences of a criminal conviction. You should have the representation of an attorney who understands that you are faced with a two-pronged dilemma of the crime charged and possible deportation. The criminal defense law firm, LEWIS & DICKSTEIN, P.L.L.C., has decades of experience dealing with criminal and immigration law issues.
Michigan Immigration Attorney
Immigration officials and judges have broad discretionary authority to grant or deny various types of discretionary immigration benefits. If you need to consult with an immigration lawyer regarding the immigration consequences of a criminal conviction, such as deportation, removal or re-entry, or any other criminally related immigration question, you should know that not all immigration lawyers are equal. Over the course of almost two decades of dealing with many immigration attorneys advising clients on criminal issues, it is clear that some are much more knowledgeable and effective than others.
Whether LEWIS & DICKSTEIN, P.L.L.C. is representing you in a criminal case or not, we can help you find the right immigration specialist to help you. We are your best hope for avoiding a conviction that results in immigration consequences.
Call us today at (248) 263-6800 for a free consultation or complete a Request for Assistance Form. We will contact you promptly and find a way to help you.
We will find a way to help you and, most importantly,
we are not afraid to win!
