faysal, i am not giving bad advice indeed i am giving true advice unlike you saying shoplifting is not too bad and its not a felony. many misdeamnioer are deportable offense not just felonies, reads the articles below.
i will just advice happyme to not be charged or have any new convictions ever again.
Key Issues When Dealing with Immigrants Charged with Crimes
Thomas Anderson and Jennifer Bouta Mojica
April 20, 2006
Thomas Anderson and Jennifer Bouta Mojica, Contributing Authors. Mr. Anderson is a founding partner of Robichaud & Anderson, PA and focuses his practice in the area of Immigration Law. Ms. Bouta Mojica received her J.D. from the University of St. Thomas School of Law in May 2006.
The last few years have seen an increased level of scrutiny of immigrants in the United States. A good example is the current push for Minnesota law enforcement officers to become more involved in enforcing immigration laws. As immigration issues continue to expand, it becomes increasingly important for attorneys to know the basics of immigration law to adequately represent their clients. Although the Supreme Court still holds that immigration consequences are a collateral issue in criminal matters, the need to understand immigration law as a criminal attorney is ever increasing.[1] A criminal lawyer representing an immigrant must be able to answer the following questions:
Is My Client an Immigrant?
If the client is not a U.S. citizen, the stringencies of immigration law will apply. An immigrant could be an undocumented person, a “green card” holder, a refugee, or someone here as a student or temporary worker. Immigration law may even apply to citizens in rare instances when the criminal act, or conviction, occurred prior to becoming a citizen. Due to the potential for the individual to be deported, it is exceedingly important to verify whether or not each client is an immigrant. Immigration status should be a standard question on every intake form in the criminal setting.2 There is a benefit in knowing that the client is an immigrant: Prosecutors and judges are generally more willing to negotiate when they know certain crimes will result in deportation. Although the law says deportation is a collateral consequence, it is hard to deny that it is punitive in nature.
Has My Immigrant Client Committed a Deportable Offense?
As a general rule, most crimes that are considered malum in se3 are deportable offenses. The Immigration and Nationality Act (INA) separates crimes into two categories: crimes involving moral turpitude, and aggravated felonies. A crime of moral turpitude is not necessarily a felony—the focus is on whether the crime is malum in se. Many misdemeanors, such as theft or some types of assault, are deportable offenses because they are malum in se. (And, to complicate matters, depending on the individual’s immigration status, the conviction of two or more misdemeanors, such as two DUIs, regardless if they are crimes of moral turpitude, can result in deportation.4)
The second category, aggravated felonies, includes a variety of crimes found in the INA.5 High crimes, such as murder, fall in this category. Surprisingly, many more simple crimes that result in a conviction and term of imprisonment of more than one year are also categorized as aggravated felonies.6 Unlike a crime of moral turpitude, a conviction for an aggravated felony will very likely result in deportation as it is much more difficult to defend in a deportation/removal proceeding. The time period of inadmissibility after deportation is also much greater, and in most instances a person with an aggravated felony is permanently barred from reentry into the United States.7
The American Immigration Lawyers Association Web site contains links and information about reference materials on this important topic.8 Kurzban’s Immigration Law Sourcebook is helpful and addresses the major points.9
When Will the Immigration Service Find Out about the Charges, and What Can It Do Pre-Conviction?
The Immigration and Customs Enforcement (ICE) division is charged with finding and deporting anyone in violation of immigration law. Areas of top priority for ICE agents are sex crimes involving minors, drug crimes, and alien smuggling. The list of most wanted criminal immigrants is almost entirely comprised of people with sex offenses relating to minors.10
It is estimated that there are as many as 85,000 people in the greater metro area that are here illegally.11 However, ICE only has around a dozen agents charged with finding and instituting deportation proceedings. The agency is short-staffed, to say the least. In Minneapolis, officials may not question a person about immigration status or question, arrest, or detain any person for violations of federal civil immigration laws, except when immigration status is an element of the crime.12 In reality it is likely that such inquiries are made, despite the rule. If ICE is informed, it may place an “immigration hold” on the individual. The hold results in the jail not being able to release the person until the hold is removed.
A hold may be applied when an immigrant begins serving time in a work release program after being convicted. At that point the jail is not able to release the person to work, despite any stipulations in plea/conviction. In general, deportability cannot be established until a conviction is final. It is also important to note that certain serious crimes result in mandatory detention during the deportation process. Thus, it is important for the client to know that the last day of incarceration for a criminal offense might be the start of incarceration for subsequent immigration prosecution. Immigration detention (sitting in jail) that lasts numerous months is common in cases with aggravated felonies.
What Is a Conviction for Immigration Purposes?
The definition of conviction under immigration law is broad. The INA provides:
(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has 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
(ii) the judge has ordered a form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.13
Unlike in the criminal context where a continuance for dismissal may not serve as a conviction, under immigration law it is a conviction. Also, an Alford plea does not avoid being termed a conviction.14
Essentially, a criminal attorney should focus on trying to find a lesser crime, or even a crime that carries a more serious penalty but is not considered a crime of moral turpitude. In some instances a criminal defendant can avoid deportation by receiving a 90-day sentence for a misdemeanor that is not a crime of moral turpitude, instead of a more serious conviction with just a few days served.
What Facts Should Be Left Out of the Record?
The Immigration Service can find a conviction has occurred if the immigrant “has admitted sufficient facts to warrant a finding of guilt.”15 Special attention should be paid to what is entered on the record. An example would be choosing how much marijuana a person admits to having in possession. The INA allows for a petty offense exception if the total quantity of marijuana is less than 30 grams.16 In the event that the client was caught with a larger amount of marijuana, the client might choose to admit to possession of 29 grams and avoid a deportable offense. If the plea is not in reference to personal use, it could be considered a trafficking offense and result in deportation.
Withdrawal of a Plea or Post-Conviction Relief: When Does It Help?
A conviction that has been expunged, dismissed, canceled, vacated, discharged, sealed, or otherwise removed pursuant to a post-conviction rehabilitative state procedure is still a conviction for immigration purposes.17 In the event that a client pleads to a charge and is put into deportation proceedings, it may be possible to withdraw the plea. The withdrawal of the plea will only work to avoid deportation if it is withdrawn on the basis of procedural or substantive defect in the underlying criminal proceeding.18 If the plea is withdrawn solely to avoid immigration problems, the conviction will not be eliminated for immigration purposes. An in-depth review of the case is necessary to ensure that the reason for withdrawal of the plea is because of defect, as the reasoning for the withdrawal will likely be litigated in immigration court.
How Long Does an Immigrant’s Criminal Record Allow for Removal?
It seems offensive to traditional notions of justice (and closure) that an immigrant can be deported a decade after a conviction, but it is true and happens frequently. Many parts of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 apply retroactively.19 An old conviction may still form the basis of removal today. This frequently comes to light when someone applies for citizenship or an immigration benefit. Deportation problems may also arise when ICE investigates an immigrant’s history after the immigrant is charged with a serious crime. If there is no conviction on the current charge, but the individual’s criminal history includes a deportable offense, the process begins.
Most immigration forms require disclosure of prior convictions. If a removable/deportable offense is disclosed, the person is likely to be put in removal proceedings. Older convictions may be more easily waived; however, some convictions do not allow for a waiver. The adage “let sleeping dogs lie” is very accurate in the immigration context. An immigrant with a problematic criminal history may never come under the scrutiny of ICE if no additional problems arise.
Conclusion
Immigration law can pose serious consequences for a criminal client. The reality is that one month in jail may be a better alternative than deportation. It is wise for an immigrant to consult with an immigration attorney when faced with criminal charges. Many times the best service for the client is a well-constructed plea agreement that avoids the pitfalls of immigration law.
1 Carlson v. Landon, 342 U.S. 524, 537 (1952).
2 Under Matter of Lozada, 19 I. &N. Dec. 637 (B.I.A. 1988), the Board of Immigration Appeals requires that a claim of ineffective assistance of counsel be accompanied with notice of a complaint filed with the local board of professional responsibility.
3 “Wrong in itself.” The Board of Immigration Appeals has defined malum in se crimes, or crimes of moral turpitude, to be “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons.” Matter of Franklin, 20 I.&N. Dec. 867, 868 (B.I.A. 1994).
4 Temporary protected status is lost if one has two or more misdemeanors. 8 C.F.R. § 244.4, 1244.4.
5 INA § 101(a)(43),
6 INA § 101(a)(43)(F) & (G)
7 In the event that your client discloses a prior deportation (for any reason), the person can also be charged with the federal crime of reentry after deportation. The seriousness of the person’s criminal and immigration history generally dictates if the federal charge will be applied and prosecuted.
8 This site (
www.aila.org) is also useful in locating AILA publications for purchase.
9 Kurzban’s Immigration Law Sourcebook, Ninth Edition, American Immigration Law Foundation (2004).
10
http://www.ice.gov/graphics/investigations/mostwanted.htm.
11
www.energyofanation.org.
12 See Minneapolis City Ordinances. Title 2. Chapter 19. “Employee Authority in Immigration Matters.”
13 INA § 101(a)(48).
14 North Carolina v. Alford, 400 U.S. 25 (1970).
15 INA § 101(a)(48)(A)(i).
16 INA § 237(a)(2)(B)(i).
17 Matter of Roldan 22 I. &N. Dec. 512 (B.I.A. 1999). (Note: the 9th Circuit differs slightly by allowing for relief if the alien would have been eligible for relief under the Federal First Offender Act or similar statute.)
18 Matter of Pickering 23 I. &N. Dec. 621 (B.I.A. 2003).
19 Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009.
