The consequences for immigrants charged with crimes in the United States can be harsh. In addition to the criminal penalties for which the immigrant is charged, immigrants can lose their legal status in the United States and get deported. What happens to an immigrant depends on what kind of crime the immigrant is charged with. Oklahoma attorney Frank Urbanic has represented many immigrants and helped them through their criminal case while considering the impact on their immigration status.
Crimes Involving Moral Turpitude
Typical crimes of moral turpitude:
- Theft crimes (when the intent is to permanently deprive)
- Spouse or child abuse
- Crimes involving deceit or fraud
- Murder
- Rape
- Arson
- Kidnapping
- Extortion
- Blackmail
- Forgery
- Perjury
- Willful tax evasion
- Bribery
- Counterfeiting
- Contributing to the delinquency of a minor
- Lewdness
- Conspiracy, attempt, or an accessory to a crime involving moral turpitude
Exceptions to crimes of moral turpitude:
- Children – The crime was committed when the immigrant was under 18 years old, and the crime was committed (and the immigrant released from any confinement to a prison or correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
- Petty Offenses – the maximum penalty possible for the crime of which the immigrant was convicted (or which the immigrant admits having committed or of which the acts that the immigrant admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the immigrant was convicted of that crime, the immigrant wasn’t sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed).
Aggravated Felonies
An aggravated felony conviction will make a lawful permanent resident ineligible for most forms of immigration relief.
Aggravated felonies include:
- Sexual abuse of minors
- Murder
- Rape
- Drug and firearms trafficking
- Theft offenses with a sentence of at least one year
- Crimes of violence with a sentence of one year or more
- Child pornography
- Owning a prostitution business
- Conspiracy, attempt, or an accessory to an aggravated felony
- and more!
Grounds of Deportability
These will or may result in deportation of a noncitizen who already has lawful admission status, such as a lawful permanent resident, green card holder, or refugee.
The following will make an immigrant deportable:
- Aggravated felony conviction
- Controlled substance conviction – Exception: a single offense of simple possession of 30g or less of marijuana
- Crime involving moral turpitude conviction
- One CIMT committed within five years of admission into the US and for which a sentence of one year or longer may be imposed
- Two CIMTs committed at any time “not arising out of a single scheme”
- Firearm or destructive device conviction
- Domestic violence conviction or other domestic offenses, including stalking, child abuse/neglect/abandonment, and violation of a victim protective order (VPO)
Grounds of Inadmissibility
These will or may prevent a noncitizen from being able to obtain lawful admission status in the U.S. They also may prevent a noncitizen who already has lawful admission status from being able to return to the U.S. from a future trip abroad.
The following make an immigrant inadmissible:
- Conviction or admitted commission of a controlled substance offense – Exception: a single offense of simple possession of 30g or less of marijuana
- Conviction or admitted commission of a crime involving moral turpitude
- Subject to the petty offense exception
- Prostitution and commercialized vice conviction
- Conviction or two or more offenses of any time with an aggregate prison sentence of five years
Ineligibility for U.S. Citizenship
These will prevent a lawful permanent resident from being able to obtain U.S. citizenship. Conviction or admission of the following crimes bars a finding of good moral character required for citizenship for up to five years
Criminal bars on obtaining U.S. citizenship:
- Controlled substance conviction – Exception: a single offense of simple possession of 30g or less of marijuana
- Conviction or admitted commission of a crime involving moral turpitude
- Subject to the petty offense exception
- Conviction or two or more offenses of any time with an aggregate prison sentence of five years
- Two gambling offenses
- Confinement to a jail for an aggregate period of 180 days
- Aggravated felony conviction – permanently bars the finding of moral character required for citizenship
What is a “conviction” for immigration purposes?
INA § 101(a)(48) defines a conviction of an immigrant as follows:
- a formal judgment of guilt of the immigrant entered by a court or, if adjudication of guilt has been withheld, where-
- a judge or jury has found the immigrant guilty or the immigrant has entered a plea of guilty or no contest or has admitted sufficient facts to warrant a finding of guilt, and
- the judge has ordered some form of punishment, penalty, or restraint on the immigrant ‘s liberty to be imposed.
- Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.
A court-ordered drug treatment or domestic violence counseling alternative to incarceration disposition IS a conviction for immigration purposes if a guilty plea is taken (even if the guilty plea is or might later be vacated). A deferred sentence without a guilty plea is NOT a conviction. A youthful offender adjudication is NOT a conviction if analogous to a federal juvenile delinquency adjudication.
In short, the U.S. government considers a conviction that would affect someone’s immigration status to be any plea of guilty (or no contest). The most important thing to remember is that even if the immigrant pleads to a deferred sentence, that is a conviction for immigration purposes.
Your Attorney
On all of these cases, it’s important to get the charge reduced as much as possible if it can’t be dismissed. A reduction from Domestic Assault and Battery to “Simple” Assault and Battery can be the difference between getting deported and not getting deported. And other crimes that are neither aggravated felonies nor crimes of moral turpitude, such as DUI, should still be reduced as much as possible. The goal is to make the immigrant client look as good as possible at the end of their case.
The Supreme Court in the Padilla case held that an immigrant client has the right to know the consequences to their immigration status before a plea. Therefore, it’s very important that your attorney know your exact immigration status so that he or she can properly counsel you on the best action to take and how those actions will impact your immigration status.
In addition to your criminal attorney, you may also want to hire an immigration attorney. They can give you additional information on how the case could impact your immigration status. It may be advisable to spend an hour or two with an immigration attorney for more detailed information on the pros and cons of the various options.
Sources: INA § 101(a)(48), 8 USC § 1182, 8 USC § 1101, U.S. Department of Justice, and Immigrant Defense Project
Current as of March 22, 2020. Laws are subject to change at any time! Go to the sources cited above for the most up-to-date law.