Legal Problems for Immigrants with Criminal Convictions

Know the Immigration Issues Before Accepting a Plea Bargain

If you've never been in criminal trouble before, your first contact with the court system can be confusing and frightening. Police officers may have threatened you with jail or prison. Some official has probably read off the maximum punishment possible for the crime you are charged with. You're afraid of being locked up and losing your job or housing.

Then, like a miracle, the prosecutor or judge offers you probation or a treatment program if you just admit your guilt. Before you jump at this offer, you need to know what such an admission may mean to you. In the last 20 years, Congress has greatly expanded the list of crimes that can get you deported or denied citizenship or re-entry into the United States. At the same time, it has eliminated most of the remedies for even long-time residents with families in the United States.

An Aggravated Felony Conviction Means Deportation

If you are convicted of any offense classified as an aggravated felony by 8 USC 1101(a)(43), you will be deported. There is no appeal or grounds for relief from deportation under this statute, no matter what hardship it might impose on you or your family. Even political asylum is generally not available to you. You will also be denied re-entry into the country.

Conviction includes any guilty plea or admission, even if you go through a diversion or drug court program that results in dismissal. Where the law specifies that the sentence must be over a certain length, INS will look at the sentence given by the court, even if that sentence is suspended and you get probation, so a plea bargain for probation won't necessarily keep it from finding that your charge was an aggravated felony. Expungement of your conviction will not prevent its use to deport you. Aggravated felonies include:

  1. Murder, rape or sex offenses involving an underage victim, including any pornography offense
  2. Illegal trafficking in firearms, explosives or drugs
  3. Money laundering involving monetary instruments or property worth more than $10,000
  4. Any firearm or explosives offense
  5. Any crime of violence or demand for ransom
  6. Theft, burglary or receipt of stolen property if punishable by at least one year in prison (in Ohio, any felony), or fraud (including tax fraud) that causes over $10,000 in loss
  7. Operating a prostitution or gambling enterprise, or any racketeering enterprise
  8. Espionage, sabotage or treason
  9. Obstruction of justice or perjury which receives a sentence of a year or more, even if suspended, or failure to appear for a serious felony offense
  10. Smuggling other aliens or forging passport or travel documents except for a first offense involving immediate family, where the penalty is at least a year.

Other Deportable Offenses

Even if the charge against you isn't an aggravated felony, it may still result in deportation. There are a number of other offenses which are classified as deportable, including :

  1. Crimes of moral turpitude involving a sentence of at least 1 year
  2. Repeated convictions for the same offense, even if a first offense would not result in deportation (ex. multiple DUI's)
  3. Possession of a controlled substance, including marijuana if more than 30 grams are involved
  4. Domestic violence, or any violence against a household member, even if not specifically charged as domestic violence, or violation of a protective order, even if no criminal charge is filed.

Local courts in many areas have become very aggressive about reporting deportable offenses to the INS. Don't count on a conviction being ignored if it is reported by the court or officer. If your offense is not an aggravated felony, or a domestic violence or drug charge, you may be eligible for a hardship waiver.

Defending a Deportation

If you have family in the country who depend on you, and they are citizens, or lawful permanent residents, you can petition the court not to deport you due to the hardship your deportation would impose on your family members. This remedy is not available if your offense is an aggravated felony or involves family violence or drugs. Before you accept a plea bargain, or admit your guilt in any criminal court, you should be sure you fully understand the possible and/or mandatory consequences of such a plea or admission.

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