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Criminal Convictions That Can Result in Deportation

Criminal activity by noncitizens may have immigration consequences. This is true whether they are undocumented aliens, temporary visitors or lawful permanent residents.

For individuals seeking entry or lawful status in the U.S., an admission or proof of criminal conduct could be sufficient for a finding of inadmissibility, whether as an immigrant or nonimmigrant. Individuals who are already admitted in the U.S. generally need a conviction to be considered deportable on criminal grounds.

Either way, they could find themselves in removal proceedings and ultimately deported to their home country and away from their family in the U.S., which is why deportation is sometimes seen as a worse punishment than imprisonment.

An alien may be deported for conviction of a crime involving moral turpitude committed within five years of admission and which carries a possible sentence of at least one year. Conviction of multiple crimes involving moral turpitude also makes one deportable regardless of when they were committed and whether they resulted from a single trial, as long as they did not arise out of a single scheme of misconduct.

Crimes involving moral turpitude are those that are “inherently base, vile or depraved, and contrary to the accepted rules of morality.” They include crimes against persons (e.g., assault and murder); crimes against property (e.g., robbery); sexual offenses; and crimes related to fraud (e.g., forgery and tax evasion). However, an alien found inadmissible or deportable on this ground may be eligible for relief such as waivers and cancellation of removal.

Aggravated felonies include some fifty general classes of crimes, including murder, rape, sexual abuse of a minor, illicit trafficking in controlled substances or in firearms, and crimes of violence for which the term of imprisonment is at least one year.

To be an aggravated felony, the crime of violence must involve the use or threat of physical force against the person or property of another, or by its nature involves substantial risk that physical force may be used in the course of committing the offense. Kidnapping, stalking, sexual assault and third degree assault, are examples of crimes that have been held by courts to be crimes of violence.

Offenses involving theft and burglary may constitute an aggravated felony if the term of imprisonment is at least one year. On the other hand, in a fraud and deceit offense the length of imprisonment is not what makes it an aggravated felony but rather the elements of the offense and the dollar amount of the victim’s loss, which must exceed $10,000.

Unlike crimes of moral turpitude, an aggravated felony conviction bars many forms of relief, including asylum, cancellation of removal, and voluntary departure. An alien convicted of an aggravated felony and is physically removed from the U.S. also becomes permanently inadmissible, although there is waiver for this particular ground.

In most deportability grounds, the DHS must prove “conviction”. Conviction for immigration purposes means a formal judgment of guilt of the alien entered by a court. If the adjudication of guilt has been withheld, the judge or jury must have 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 the judge has ordered to be imposed some form of punishment, penalty or restraint on the alien’s liberty.

Under certain circumstances, however, conviction is not even needed to subject the alien to removal. Mere admission of criminal activity is enough if certain factors are met. First, the conduct must constitute a crime under the law of the place where it was committed. Second, the noncitizen must admit to conduct that constitutes moral turpitude. Third, the alien must be provided with a definition of the crime before he can make a valid admission to a crime of moral turpitude or involving a controlled substance. Finally, the admission must be freely made and voluntary.

New Policy of Easing Deportation Unevenly Applied

When the Immigration and Customs Enforcement (ICE) in a memo last June instructed its personnel to avoid the deportation of “low priority” or non-criminal aliens, immigration advocates and immigrant communities all over the country welcomed it as a humane and sensible approach to immigration enforcement.

The Morton Memorandum, named after ICE Director John Morton, ordered its personnel to exercise “prosecutorial discretion” when handling cases of aliens who have no criminal history and are not risks to national security or public safety. It called on them to regularly exercise their discretion at any time during the immigration process in order to prioritize the use of the agency’s limited resources.

The memo listed at least 19 factors to be considered by ICE personnel when making enforcement decisions. These include lengthy residence in the U.S., pursuit of U.S. education, community ties, and having a U.S. citizen (USC) or lawful permanent resident (LPR) relative.

However, ICE offices apparently have not been following the memo in the past five months since it came into effect.

A survey of immigration practitioners by the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) shows that implementation of the new policy has been sporadic at best.

For instance, in New York, removal proceedings were terminated for an alien who had been present since childhood and educated in the U.S. and had strong family and community ties.

On the other hand, relief was denied to a long-time LPR who had two misdemeanors from a long time ago but whose case involved many positive factors, including being a victim of domestic violence or serious crime, having a spouse with a severe illness, and being a primary caretaker of a sick or disabled minor relative.

In California, surveyed attorneys reported little to no change in practice since June. In one case involving an LPR with an abandonment charge, termination of removal proceedings was denied in spite of the equities of the case. The LPR had no criminal history or only minor offenses and had a USC/LPR relative; no negative factors were present.

Many ICE officers and attorneys were reported as having said that there is no change in policy or that things were “business as usual” until they get further guidance. For example, in the Honolulu ICE office, it was said that prosecutorial discretion is denied unless there are life threatening circumstances.

The findings also reveal that the standards are sometimes applied inconsistently or interpreted narrowly. In Florida, for example, an ICE attorney said that a prosecutorial discretion request would be considered at the beginning of the case and not at any other stage of the proceedings. An ICE agent in Seattle reportedly said that discretion to release an alien would be exercised only when a detention center is full.

Despite the clarity of the guidelines in the memo, there is evidently a gap between the leadership that issued the policy and the rank and file tasked to carry out the policy in practice. The AILA and AIC pressed the DHS and ICE in particular to issue additional guidance and hands-on training to its personnel.

In order to give effect to a policy not only approved at the executive level but in fact supported by President Obama, ICE agents and attorneys need to understand that it is their obligation to exercise discretion in accordance with the memo.

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