There are many ways an immigrant’s arrests, crimes, or merely immoral conduct come to the attention of ICE and DHS for purposes of removal from the United States:
- An arrest by local or state police can result in ICE detention
- Filing a petition for permanent residence or citizenship will result in fingerprinting and discovery of a criminal record.
- Travel outside the U.S. and re entry by a permanent resident can result in secondary inspection, a review of criminal records on file with the FBI and referral to immigration court for removal from the U.S.
What are the consequences of criminal conduct upon an illegal alien, a visa holder or a lawful permanent resident? Consequences vary depending upon the status of the person when convicted of a crime as well as their current status. For example, a crime can make a lawful permanent resident inadmissible upon reentry into the U.S. but not cause inadmissibility to an alien or immigrant. Another factor is the length of time a permanent resident has been in the U.S. compared to when a crime is committed.
A. The nature of the crime can cause someone to be inadmissible or deportable.
- Certain crimes have been defined as an Aggravated Felony. Not only do they result in removal from the U.S., an aggravated felon cannot get bonded out of ICE custody and must remain in the detention facility during his or her removal proceedings, which can last several months.
- Drug Offenses: Any possession, use, transport, possession with intent to sell or trafficking in drugs, with the exception of possession of 30 grams or less of marijuana, are deportable offenses.
- Firearms Offenses: While a simple firearms offense is not considered a crime involving moral turpitude or a crime of violence, an enhanced version of firearms offenses, such as discharge into a building or from a vehicle etc. can trigger deportation and removability.
- Crimes Involving Moral Turpitude (CIMT): Conduct involving fraud, theft, intent to inflict serious bodily harm, lewdness, malice or recklessness can lead to a finding of a CIMT, leading to removability of an illegal alien and inadmissibility to a lawful permanent resident. One CIMT is sufficient to cause consequences to one’s immigration status. Exceptions would be petty offenses, juvenile offenses and purely political offenses. For green card holders, one CIMT where a sentence of 1 year or more could be imposed within 5 years of admission to the U.S. can result in the loss of permanent residence and removability.
- Domestic Violence, stalking, child abuse, child neglect, or child abandonment can result in one being found deportable. In addition violation of a civil protective order concerning domestic battery can, even if the person is not convicted of the battery.
- Crimes of Violence: The use of or threatened use of physical force upon another. Note a DUI, (driving under the influence) is not necessarily a crime of violence, but can be defined as such if another was injured in a vehicular accident.
B. Taking Remedial Action to avoid adverse immigration consequences from a conviction.
- With the 2010 U.S. Supreme Court Decision of Kentucky v Padilla, where a conviction was dismissed due to the ineffective assistance of defense counsel at a guilty plea hearing, it may be possible to obtain dismissal of a criminal conviction in order to avoid the consequences of travel and re-entry into the U.S., filing a petition to adjust status to permanent residence or applying for U.S. citizenship.
- However, this should only be attempted by an immigration attorney experienced in criminal defense work or with the assistance of defense counsel and an immigration lawyer.
- This is a very new area of the law and one which we are looking at further developments to afford protection to aliens and permanent residents with a criminal history.