Crimes & Criminal Convictions if You are Not a US Citizen
If you are not a citizen of the U.S., a criminal conviction may impact your ability to stay in the country
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Criminal convictions have very severe consequences if you are not a US Citizen. In this article, I discuss the top 5 things that I think someone who is not a US Citizen needs to know about a criminal conviction. This article is general. The facts of your case may be different.
If you have been arrested, you need to speak with an immigration attorney.
With that said, criminal law is different from immigration law. You can have a criminal case in state court or federal court. Immigration law is only federal and it has separate regulations and rules and procedures. Many criminal lawyers are becoming educated in the basics of immigration law, but you really should speak with someone who specializes in immigration if you have been arrested and are not a US Citizen.
1. Do I have a "conviction" under Immigration Law?
The first thing to know, or at least to find out, is whether you have a "conviction" under immigration law. This should be easy, but plea agreements can really cause problems- especially if the plea involves an admission of guilt. Unfortunately, I see many clients who end up taking plea agreements that are NOT convictions under criminal law but ARE convictions under immigration law.
Section 101(a)(48) of the Immigration and Nationality Act defines the term “conviction” as: “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”
In Texas, for example, it is very common for a client to enter a plea for "deferred adjudication." In this type of plea, the Defendant pleads guilty of the crime to the Judge, but the Judge does not find him guilty. Instead, the Judge grants him a period of probation, and if it is successfully completed, then his criminal case is dismissed. This is often recommended by criminal attorneys because under criminal law, a deferred adjudication is not a final conviction. Eventually, if probation is successful, then the case is dismissed. But under immigration law, even if the case is dismissed, it is still considered a conviction!
If you had any kind of plea agreement, and you are not a US Citizen, you need to speak with an attorney.
Other common pleas to be aware of include "nolo contendere" pleas and "deferred prosecution" / "pre-trial diversion." In a "nolo contendere" plea, the Defendant does not admit guilt, but he does not protest the charges. This is considered a conviction for immigration purposes. The other common plea is the "deferred prosecution" or "pre-trial diversion." This is a program where you are placed on probation right away. If you are successful, your case can be dismissed. It is very similar to a deferred adjudication, but the Defendant does not plead guilty. It is usually for first time offenders. There is a lot of fight about whether participation in a pre-trial diversion or deferred prosecution program is a conviction.
2. Will I be subject to Removal / Deportation?
The next thing you need to know about a crime or criminal conviction is whether it will subject you to removal proceedings. Most people know the term "deportation." But the formal term is actually "removal proceedings," and it refers to any proceedings in Immigration Court where the government of the US tries to force you to leave the US. There are 2 types. If you are not legally in the US, then you are "inadmissible." If you are here legally, then you can be subject to "deportation."
You need to consult with an immigration attorney about your specific crime.
Each case is different, but in general, any drug crime can result in removal proceedings- even many years later. If you have a drug arrest, you MUST talk with an attorney. The consequences are VERY severe.
Other crimes to beware of are "crimes involving moral turpitude." (CIMT). A CIMT is defined as "conduct that is considered contrary to community standards of justice, honesty, or good morals." These are crimes that usually have an element of dishonesty or fraud. Theft, for example, is a CIMT. Crimes that do not involve deliberate action, however, like DWI or DUI are not CIMTs. You should talk with an attorney to determine whether your criminal conviction is a CIMT and what effects it might have on your status.
You should also be very careful about travel. Even if you have an old conviction that no one ever said anything about, if you leave the country, this can be a basis for not letting you back in.
3. Will I be ineligible for Certain Defenses to Deportation / Removal?
Some crimes can make you ineligible for certain defenses to removal. If you have a particularly serious crime, known as an "aggravated felony," then you cannot seek most forms of relief. There is a long list of what crimes are considered aggravated felonies, but common ones are drug trafficking crimes, crimes of theft / crimes of violence where the punishment was more than 1 year, murder, rape, and sexual abuse of a child.
Drug crimes can also make an alien ineligible for relief. Drug convictions can make an alien inadmissible or deportable. The consequences of some crimes can be waived, but drug crimes cannot be waived inless it is a drug conviction for simple possession under 28 g of marijuana.
Each case is different, and you should speak with an attorney to review whether your case will make you ineligible for certain defenses.
4. Will I be ineligible for Bond?
In addition to being ineligible for certain defenses, some crimes can make you ineligible for bond. If you are detained by Immigration Customs and Enforcement (ICE), you can be eligible to get a bond while your removal case is going on. However, Section 236(c) of the Immigration and Nationality Act sets forth some crimes that, if an alien is convicted of them, the alien is subject to mandatory detention and cannot be given a bond during his proceedings. Among the crimes subject to mandatory detention include ANY drug crime and/or 2 CIMTs.
5. What can I do about my criminal record?
If you have ever been arrested, you should obtain a copy of your criminal record. You can get this online, through your driver's license bureau, or the criminal clerk in the place where you were arrested. If you have a criminal conviction and you are not a citizen, you should talk with an attorney who is knowledgable in immigration and criminal law. Sometimes you might be able to re-open your criminal case- either by filing a writ of habeas corpus or even taking an appeal. The potential relief available to you will depend on the specific facts of your case and the law where you live.
I have been successful in re-opening criminal cases for many of my clients. A good attorney should be able to help you determine if there is anything you can do about the criminal record in your case.
Please consult a good immigration attorney if you are not a citizen and have ever been arrested.