Will an Immigrant Arrested for a Crime Be Deported?

If you've never been in criminal trouble before, your first contact with the U.S. court system could be confusing and frightening. Police officers might threaten you with jail or prison. Some official will probably read off the maximum punishment possible for the crime you are charged with. You are afraid of being locked up and losing your job or housing. And in the back of your mind is the concern that, since you are an immigrant, you could be deported if you're found guilty of a crime.

This article will discuss how to deal with all that. We will mostly discuss the situation for foreign nationals who have obtained U.S. lawful permanent residence or a green card. However, some of the same concerns apply to other foreign nationals living in the United States, since a criminal conviction can result in them being placed into deportation proceedings and/or result in ineligibility for any sort of U.S. visa or status.

What an Immigrant Should Do Following an Arrest

If you are an immigrant in the United States, make sure that your criminal attorney or public defender knows that. Over the years, Congress has expanded the list of crimes that can get a green card holder or other non-citizen either deported or eventually denied U.S. citizenship or re-entry after foreign travel. Thus it would be dangerous to wait to see how the arrest and charging play out before analyzing the possible effect on your immigration status.

Unfortunately, it can seem like a miracle when the prosecutor or judge offers you probation or a treatment program if you admit your guilt. Too many immigrants have jumped at such an offer, without considering what such an admission could mean to their status in the United States.

But the analysis of which crimes are problematic isn't an easy one, and it truly requires expert analysis. In some cases, particular named crimes can make someone deportable. In other instances, the immigration law contains only a general description of a crime that makes one eligible for deportation, and it's up to the immigration court system to decide whether the crime in question is a match for that description.

What's a Criminal Conviction for Immigration Law Purposes?

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, the immigration judge will look at the sentence given by the court, even if that sentence was suspended and you got probation. That means that a plea bargain for probation won't necessarily keep the immigration authorities from finding that your charge matches the definition of a crime that makes you deportable. What's more, a later expungement of your conviction will not necessarily prevent its use to deport you.

Also realize that some of the criminal grounds of deportation don't require a conviction at all, such as being a drug abuser or addict (which might be shown on an immigration medical exam). And immigration marriage fraud is a ground of deportability, which finding could be made by U.S. immigration authorities, outside the criminal justice system.

Crimes That Make a U.S. Immigrant Deportable

You'll find a list of crimes that lead to deportability in Section 237 of the Immigration and Nationality Act (I.N.A.) Specific examples include drug crimes, illegal firearms or weapons offenses (such as purchase, possession, or selling), high-speed flight from an immigration checkpoint, espionage or sabotage, domestic violence (physical violence or threats or violation of a protective order, even if no criminal charge is filed), stalking, child abuse, neglect, or abandonment, failure to register as a sex offender, human trafficking, terrorist activity, and so on.

Among the more broadly described crimes are:

• aggravated felony, regardless of how long the person has been in the U.S. after admission
• "crime involving moral turpitude" (CIMT) if committed within 5 years of being admitted to the U.S. (or 10 years if the person became a lawful permanent residents after holding an S visa and helping with a terrorism investigation), and if the crime is one for which a sentence of one year or longer may be imposed, and
• two or more crimes involving moral turpitude that did not arise out of a single scheme of misconduct, regardless of any prison sentence or the length of time the person has been in the U.S. since being admitted.

You aren't likely to see the terms "crime of moral turpitude" or "aggravated felony" on any of your charging or other documents from the criminal court system. For purposes of the immigration judge's decision on whether to deport you, it's a matter of matching the type of crime you committed (as likely defined by the law in your state) to the federal-law criteria for one of these categories.

What's an Aggravated Felony According to U.S. Immigration Law?

If you are convicted of any offense classified as an aggravated felony, you will be deported and barred from return to the United States. (See 8 U.S.C. § 1101(a)(43).) 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 asylum is not available to 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
7. Fraud (including tax fraud) that causes over $10,000 in loss
8. Operating a prostitution or gambling enterprise, or any racketeering enterprise
9. Espionage, sabotage, or treason
10. Obstruction of justice or perjury with a sentence of one year or more, even if suspended, or failure to appear for a serious felony offense
11. Smuggling of other foreign nationals or forging a passport or travel documents, except for a first offense involving immediate family where the penalty is at least a year.

What's a Crime of Moral Turpitude Under U.S. Immigration Law?

U.S. immigration law does not contain any actual definition of "crime of moral turpitude" or "CIMT." It has been left to U.S. courts and the U.S. Department of State (DOS) to interpret the meaning. Broadly speaking, courts have adopted the definition that CIMTs involve "conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general." (See, for example, Matter of Perez-Contreras (PDF), 20 I&N Dec. 615, 618 (BIA 1992).)

The DOS's Foreign Affairs Manual states that a CIMT commonly includes "fraud, larceny, and intent to harm persons or things." (See 9 FAM 302.3-2(B)(2)(U).) Although that might sound like a short list, it's actually a summary of a very long list of possible crimes.

A crime with intent to harm persons, for example, could include things like bigamy, gross indecency, contribution to the delinquency of a minor, rape, assault, murder, mayhem, and so on. And a crime against property might include arson, blackmail, burglary, embezzlement, extortion, forgery, and more.

Aggravated driving under the influence ("DUI" or "DWI") could also be deemed a CIMT, though ordinary drunk or reckless driving will not.

Can a Misdemeanor Make You Deportable?

Although the statute on deportability doesn't specifically list misdemeanors, if one is found to be a CIMT, then yes, it can make you deportable. It's even possible for a crime that was prosecuted as a misdemeanor in the criminal court to be found to match the definition of an aggravated felony.

Can Drug Crimes Make an Immigrant Deportable?

Drug crimes, such as trafficking or illegal possession or use, can be a swift route to deportation, particularly because the statute covers any controlled-substance related law or regulation of a U.S. state, the U.S. federal government, or a foreign country.

The only exception to deportability is for possession of less than 30 grams of marijuana. The fact that marijuana use might be legal in the state where you live will not help you, since it's still illegal under federal law, and immigration law is entirely federal.

Getting Legal Help to Protect You From Deportation

Before you accept a plea bargain or admit your guilt in any criminal court, be sure you fully understand the possible and/or mandatory consequences of such a plea or admission. Talk to a criminal defense attorney or ask the court for a public defender if you can't afford a lawyer, but also consult an immigration lawyer if your defense counsel isn't well-versed in immigration law consequences (most aren't). There could still be a way to structure a plea to minimize the immigration law consequences.

And if a criminal conviction has already been entered against you, you'll definitely want to consult an immigration attorney. There could be a way to obtain relief from deportation or a waiver of your criminal act. One important possibility is a remedy called "cancellation of removal," but this requires appearing in immigration court, where having an attorney by one's side is practically essential.