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Immigration

Immigration Law for Criminal Lawyers

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Below are my notes from a presentation I gave at the 44th Annual Criminal Justice Institute in Minnesota.  In this presentation, I discussed how immigration law intersects with criminal law when dealing with an immigrant client.

  • Basically three immigration agencies involved:  U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS).
  • You must confirm whether your client is a U.S. citizen or not.  Put it on your intake and have the client confirm.
  • Any criminal conviction can and will effect a non-citizens’ immigration status. 
  • At the very least, it can effect your client’s eligibility to become a citizen based on lack of good moral character.  At the worst, it could result in deportation.
  • While your client’s eligibility for citizenship may not be a big concern to you, it is very important to your client.  In most cases, if your client is not able to become a citizen because of his or her criminal history, this will effect your client’s ability to sponsor family members.  For example, only a U.S. citizen can sponsor a sibling for immigration to the U.S.  In addition, if your client has a spouse living abroad, sponsorship as a U.S. citizen takes about 10-12 months while sponsorship as a permanent resident green card holder can take 4-5 years or longer.
  • Even if your client’s criminal matter does not result in deportation, it can effect his ability to return to the U.S. after travel abroad. 
  • There are two sets of immigration laws that come into play when dealing with criminal matters, INA Sec. 212(a)(2) regarding inadmissibility and INA Sec. 237(a)(2) deportability.
  • These sections often overlap and the finer points of these two sets of laws are beyond the scope of this presentation, but here is a list of crimes that will definitely effect your clients immigration status and could lead to deportation proceedings:
  • a crime of moral turpitude (CMT).  While no clear definition exists within the law for CMTs, the term has been held to involve acts demonstrating “baseness, vileness, and depravity” on the part of the perpetrator. Examples would be crimes involving theft, fraud, and violence.
  •  a controlled substance violation  - using or trafficking
  • Multiple convictions.  You need to know your client’s complete criminal history because multiple minor convictions can effect your client’s immigration status.
  • Aggravated felony
  • Drug abusers or addicts.  This goes to whether your client will be allowed to return to the U.S., even though he might not be deportable.  If your client has a DUI and leaves the U.S. and needs to get a new visa to return, some consulates have made findings that the person is an addict or abuser based on the DUI and denied the visa. 
  • firearms offense
  • prostitution
  • crimes of  violence can be CMTs and grounds for deportation on their own. 

*  Petty offense exception:  My not be deportable if: 1)there is only one conviction; 2) the maximum penalty possible does not exceed one year imprisonment, and 3) the actual sentence was not greater than six months.

  • As you can see, the INA has grounds for deportation relating to specific crimes, as well as, general, “catch all” provisions.
  • It is important to note that, if your client admits to certain facts as part of a plea agreement that would support a conviction of a more serious crime, U.S. Immigration and Customs Enforcement can use that admission to seek deportation, even though there was no conviction for that particular crime in the criminal court. 
  • A conviction, for immigration purposes, only requires admission of sufficient facts to warrant a finding of guilt and a judge ordering some form of punishment, penalty, or restraint on the person’s liberty.
  • If, after consulting with an immigration attorney, the best you can do is plead guilty to a crime that makes your client deportable, there may still be a defense to deportation through the immigration court. 
  • In addition, often times the ground of deportability does not come to the attention of the immigration service unless the person applies for some benefit, e.g., re-entry back into the U.S., citizenship, etc.
  • The immigration attorney will be able to advise the client on his or her options.

Bond

If the immigration service seeks deportation based on a criminal conviction, in many circumstances, there is a mandatory detention section of the INA that will prevent your client from being able to post bond for release from jail.

So, even though your client may post bail or be released after completing his or her criminal sentence, the immigration service will place a hold on the client and merely transfer custody of your client to its jurisdiction.

This can occur whether there has been a final disposition in the criminal court or whether the matter is still pending.  But you won’t know for certain whether the immigration service will take custody of your client until the client posts bail and attempts to be released from custody.  At that time, ICE will make a custody and bond determination.

Options

1.         Of course, the safest thing to do is get an acquittal or finding of not guilty!

2.         Diversionary programs with no admission to deportable facts or determination of guilt.

3.         Withholding of adjudication with no criminal penalty or punishment imposed, just administrative court costs.

4.         Divisible statutes.  If you are dealing with a statute for which different types of scenarios can result in a conviction under the same statute, sometimes a conviction under one part of the statute makes a person deportable while a conviction under a different part of the same statute does not.

It can be helpful if it is clear on the record which part of the statute is being applied so that if the immigration service seeks deportation due to the conviction, we can point to the record of conviction to show that the client was not convicted under the deportable section, but instead, the section of the statute that is not a ground of deportation.

5.         Minimizing the sentence imposed.  As mentioned previously, the maximum allowable sentence and the actual sentence imposed can effect deportability.  Generally, if the maximum allowable sentence is under one year and the actual sentence imposed is under six months, you may be able to avoid deportability.

For more information, feel free to contact me at www.ImmigrationLawyerMN.com .

Vincent Martin

vmartin@cundyandmartin.com