United States immigration laws are complex and difficult. A non-U.S. citizen (non-USC) facing a criminal matter will need both a criminal defense lawyer and an immigration lawyer. Once the criminal issue is resolved, the non-USC may have to resolve an immigration issue.
Q: I’ve been accused of a crime. How do I know if I’m a U.S. citizen?
A: Generally, if you were not born in the U.S. or have not otherwise received official citizenship status, you are not a citizen. However, you still may have legal status as a U.S. citizen if a parent or even a grandparent is a citizen; this is called "derivative citizenship."
Q: What if I don’t have legal status in the U.S.?
A: “Legal status” gives the non-USC permissino to be physically present in the United States. Normally a non-USC will hold a non-immigrant or an immigrant visa status. A visa will allow a non-USC to see permission to enter the U.S. at a port of entry such as a land crossing or airport. At the port of entry, the non-USC is inspected and admitted by an immigration officer. Whatever visa you used to enter the U.S. will determine your legal status and how long you are allowed to stay in the U.S. If you entered without inspection, committed a crminal act, did not comply with the terms of the specific visa you had, or you entered legally but have stated longer than a visa permits, then you may not have legal status.
If you do not have legal status and you are arrested, you may have a "detainer" places on you by a local law enforcement agency or the Customs and Border Protection (CBP). This detainer allows local law enforcement or the CBP to hold you until the U.S. Immigration and Customs Enforcement (ICE) arrives. Once the ICE arrives, they will take you into custody.
Q: If I am not a USC and I plead guilty to something, will I be forced to leave the U.S.?
A: You should consider the possible effects of taking a plea deal or going to trial. After the criminal matter is completed, the crime you are charged with will determine if deportation proceedings will be started. A carefully crafted plea may help you avoid deportation proceedings. A criminal defense attorney must tell you about the immigration consequences of a criminal plea, especially for a plea agreement made after March 2010.
Q: What is a “conviction” for immigration purposes?
A: To receive a conviction, a judge must find you guilty of the charges against you and order some form of punishment, penalty or restraint of your freedom. You might also receive a conviction for violating the terms of probation or failing to follow a court order. For immigration purposes, the immigration court can only look at your conviction record. Even a "treatment in lieu of conviction" or "withholding of adjudication" may result in deportation proceedings, especially if you enter a plea of guilty and successfully complete the program. For immigration purposes, a guilty plea is considered a record of conviction, even though no record of conviction exists.
Q: I was convicted of an offense, but I completed my probation and my conviction was expunged. Can I still be deported?
A: Yes. Your conviction still counts against you even if you were put on probation and your record was expunged. Expungement may negatively affect possible post-conviction relief motions if an alien attempts to vacate the original plea.
Q: What kinds of offenses can get me kicked out of the country?
A: The two main types of crime that can result in your deportation are aggravated felonies and crimes of moral turpitude.
The Immigration and Nationality Act’s (INA) definition of “aggravated felony” includes a number of crimes that are not commonly considered either “felonies” or “aggravated.” A criminal defense attorney working with non-USC clients must fully understand the INA definition of “aggravated felony” to provide correct advice about offenses that can result in deportation.
According to the U.S. Citizenship and Immigration Services (USCIS), a crime of moral turpitude is inherently base, vile, or depraved, contrary to social standards of morality and done with a reckless, malicious or evil intent. Conviction of crimes of moral turpitude may also disqualify someone from an employment opportunity. The precise definition of a crime that involves moral turpitude isn't always clear, but the following crimes are always considered crimes of moral turpitude: murder, voluntary manslaughter, rape, statutory rape, domestic violence, fraud and crimes where fraud is an element; all theft offenses; blackmail; malicious destruction of property; arson; alien smuggling; harboring a fugitive; bribery; and perjury.
Q: If the immigration court finds that an offense I’ve been convicted of means I can be removed from the U.S., what do I do?
A: Assuming you are a non-USC and have been placed in removal proceedings, you may be eligible for relief from removal, even if a plea deal is not successful. Relief can include, but is not limited to, adjustment of status, temporary protected status or deferred action, or the removal may even be cancelled. You also may be eligible for asylum or protection under the United Nations Convention Against Torture. However, depending on the crime, you may not be eligible for certain forms of relief. Since much is at stake for you as a non-USC, the criminal defense attorney and the immigration attorney must work hand in hand once you face a criminal charge.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Independence attorney Jason T. Lorenzon of Lorenzon Law LLC.