Charged with a Crime versus already Convicted of One

The terms “deportable crimes” or “deportable offenses” refer to crimes the conviction for which can lead to negative immigration consequences for defendants who are not United States citizens. This may include deportation and removal, denial of the right to re-enter the United States negation of the ability to naturalize as a citizen of the United States.

If you are convicted of one of these so-called “deportable crimes,” and you are not a United States citizen, then the Department of Homeland Security (“DHS”) may deport you--regardless of how long you have lived in the United States or how well-established your life is here.

The five major categories of “deportable crimes” are:

  1. Crimes of moral turpitude,
  2. Aggravated felonies,
  3. Controlled substances (drug) offenses,
  4. Firearms offenses, and
  5. Domestic violence crimes.

Unfortunately, far too many immigrants facing criminal charges are represented by criminal defense attorneys who do not understand the immigration consequences of a conviction for a deportable crime.

As a result, these attorneys may not fight the charge as aggressively as they should--and might even advise the defendant to plead guilty or “no contest.”

What about President Trump’s plans to speed up deportation of immigrants with criminal records?

Under the Obama administration’s “Priority Enforcement Program,” DHS was directed to focus its resources on deportable immigrants who had more serious deportable crimes on their records: convicted gang members, immigrants with felonies or aggravated felonies, and immigrants with either “significant misdemeanor” convictions or three or more misdemeanor convictions.

But in early 2017, President Donald Trump issued several executive orders on immigration calling for more aggressive enforcement of immigration laws. As a result, the DHS will now devote resources to deporting any immigrant convicted of a deportable crime--even relatively insignificant ones.

This is why it is extremely important for all non-citizens facing criminal charges to be represented by a criminal defense and immigration attorney who is an expert in immigration law as well as criminal law.

1. Who Can Be Deported Due to Criminal Convictions?

The federal Immigration and Nationality Act (usually referred to as the “INA”) provides that any non-citizen living in the United States may be deported – that is, removed from the country – if they are convicted of certain criminal offenses.

It does not matter

  • how long you have lived in the US,
  • how well-established your life is here (e.g., homeownership, job, business ownership), or
  • whether you have a dependent child who is a US citizen.

Similarly, it does not matter what your immigration status is. All non-citizens are subject to the deportability sections of the INA, whether they are

  • legal permanent residents (aka “green card” holders),
  • visa holders (student visas, work visas, etc.), or
  • refugees who have been granted asylum.

Example: Jesus is born in Mexico. He is admitted to the US as a lawful permanent resident (“green card” holder) when he is only two years old and lives here continuously from then on. He marries an American citizen when he is in his 20s--but he never becomes a citizen himself.

After being convicted of several theft crimes which are deportable offenses, Jesus is deported to Mexico. It does not matter that he’s lived virtually his entire life in the U.S. and has strong ties here.

Deportation vs. inadmissibility

It is important to note that deportation is not the only thing non-citizens have to worry about if they are convicted of a crime. Inadmissibility is another potential immigration consequence of a criminal conviction.

If you a non-citizen and you are convicted of certain “inadmissible crimes“, you may not be allowed to:

  1. Re-enter the country after leaving,
  2. Become a U.S. citizen, or
  3. Apply for permanent residence (a green card) or an “adjustment of status” — that is, a change from illegal to legal immigration status.

But--in contrast to a conviction for one of the deportable crimes we discuss below--a conviction for an inadmissible crime will not necessarily lead to you being removed from the country against your will.

2. What is a Deportable Crime of Moral Turpitude?

Section 237 of the INA lists the crimes for which you can be deported.

The first major category of deportable crime consists of so-called “crimes of moral turpitude” (also known as “crimes involving moral turpitude” or “CIMTs”).

Crimes of moral turpitude are an unusually complicated area of immigration law. That is because the INA does not define what a “crime of moral turpitude” is. As a result, California and federal courts have had to come up with their own definition.

Definition of moral turpitude

Courts have defined moral turpitude as a corruption of the social basic duties that everyone owes to other people and to society as a whole--in other words, antisocial behavior that harms another person or the social good.

California courts have decided that the following are crimes of moral turpitude (and hence potentially deportable crimes):

  • Arson,
  • Assault with a deadly weapon,
  • Burglary,
  • Cultivation of marijuana,
  • Forgery,
  • Grand theft and grand theft auto,
  • Kidnapping,
  • Murder,
  • Possession for sale of controlled substances,
  • Rape,
  • Receiving stolen property, and
  • Repeated felony convictions for driving under the influence (DUI).

(On that last item, the immigration consequences of a DUI conviction are a very complicated topic and are best addressed by an experienced criminal immigration attorney.)

What about crimes that are not crimes of moral turpitude? California courts have decided that the following crimes are not crimes involving moral turpitude and thus do not have the same immigration consequences (such as deportability):

  • Assault (not Involving a deadly weapon),
  • Child endangerment,
  • Indecent exposure, and
  • Involuntary manslaughter.

Crimes of moral turpitude and deportability

Just being convicted of a single crime of moral turpitude is not enough to make you deportable. Instead, you are deportable only if you either:

  1. Are convicted of a crime of moral turpitude for which a prison sentence of one (1) year or longer may be imposed, within five (5) years of being admitted to the U.S., OR
  2. Are convicted of two (2) or more crimes of moral turpitude that did not arise out of a single criminal scheme.

3. What is a Deportable Aggravated Felony?

Another category of deportable crime is the so-called “aggravated felony.”  This means that a conviction for certain felonies can lead to you being removed from this country.

In contrast to crimes moral of turpitude--which have to be identified as such by courts--the phrase “aggravated felony” has a specific definition in the INA. Some of the most important aggravated felonies under criminal immigration law are:

  1. Murder,
  2. Rape,
  3. Sexual abuse of a minor,
  4. Drug trafficking,
  5. Illicit trafficking in firearms,
  6. Theft crimes for which the sentence is more than one (1) year in prison,
  7. Crimes related to the operation or supervision of a prostitution business (such as pimping), and
  8. Fraud crimes that swindle the victim out of at least ten thousand dollars ($10,000).

You may notice that there is some overlap between the list of crimes of moral turpitude and the list of aggravated felonies. For example, murder and rape are on both lists.

4. Can I Be Deported if I Am Convicted of a Drug Crime?

Another major category of deportable crimes is controlled substances offenses. Under the INA, almost all drug crimes can lead to deportation.

This includes both serious and not-so-serious drug crimes. You may be deported if you are convicted of

  • Drug manufacturing,
  • Drug transport / sale,
  • Possession of drugs for sale, or
  • Simple possession.

There is one exception. You may not be deported if your drug crime conviction is for a single charge of simple possession of marijuana – as long as the amount possessed is thirty (30) grams (the equivalent of just over one ounce) or less. (In 2016, Proposition 64 legalized simple possession of small amounts of marijuana in California, so this exception will not have much impact going forward.)

This provision of the INA has incredibly harsh results for many immigrants — just because convictions for drug offenses are so common, and happen so frequently to otherwise law-abiding people.

A few years back, almost one-third of the non-citizens who were deported for deportable criminal convictions were deported because of drug offenses. In 2009, almost 40,000 immigrants were deported after a drug conviction.

5. Can I Be Deported if I Am Convicted of a Firearms Offense?

Another group of deportable crimes is offenses related to firearms or destructive devices.

Specifically, you can be deported if you are convicted of illegally

  • purchasing,
  • selling,
  • exchanging,
  • Possessing,
  • using, or
  • carrying,

any firearm.

In practice, however, you are only likely to be deported if you are found guilty of committing a federal firearm offense. A conviction for violating California gun laws usually only leads to deportation if it involves an assault weapon or it is used in committing another crime, for instance, assault with a firearm (which is also a crime of moral turpitude).

6. Can I Be Deported for a Domestic Violence Conviction?

The last major category of deportable crimes is violations of domestic violence laws.

You need only a single conviction of a domestic violence offense to be deportable. For purposes of the INA, a “domestic violence offense” means not just a classic domestic abuse crime like domestic battery on a spouse or partner--but also child abuse and even violating a restraining order.

7. Deportable Crimes and Related Topics

7.1. Can I be deported for a drug addiction?

In addition to the deportable crimes we just described, another common cause of deportation is a section of the INA that allows the government to deport you for being addicted to drugs — even if you are never convicted of a crime related to this! 

Specifically, section 212(a)(2)(B) of the INA provides that you may be deported if you either

  • currently are a drug addict or abuser, or
  • have been a drug abuser or addict since you were admitted to the U.S.

7.2. Can I use post-conviction relief to avoid deportation for a criminal conviction?

Many of our clients want to know if there’s any way to save their immigration status--and their life in the United States-even if they have a conviction for a California deportable crime on their record.

The answer may be yes. An experienced California criminal and immigration attorney can offer you advice on the possibility of receiving some kind of post-conviction relief. If you are eligible for the right form of post-conviction relief, your conviction may not lead to you being deported.

Some of the most common forms of post-conviction relief are:

  1. Reduction of a felony to a misdemeanor,
  2. A motion to vacate a conviction based on a guilty plea if you were not advised of the immigration consequences of the plea,
  3. Re-sentencing so that your new, lesser sentence does not trigger immigration consequences, and
  4. A motion to vacate a conviction based on a claim that you received ineffective assistance of counsel (i.e., bad legal advice).

7.3. What is cancellation of removal?

Even if you are unable to obtain any form of post-conviction relief, you may still be eligible for something called “cancellation of removal.” An application for cancellation of removal would be dealt with in US Immigration Court, not in a criminal court.

You may be eligible for cancellation of removal only if you are a lawful permanent resident--that is, a “green card” holder--and you meet all of the following requirements:

  1. You have had your green card for at least five (5) years,
  2. You have lived in the U.S. continuously, with some legal immigration status, for at least seven (7) years, AND
  3. You have not been convicted of an aggravated felony.60

7.4. How do President Trump’s immigration orders affect immigrants with deportable convictions?

In January 2017, President Donald Trump issued several executive orders on immigration designed to increase the number of immigrants deported from the U.S.

The most important feature of these orders for immigrants with California deportable crimes on their record is the Trump administration’s decision to end former President Obama’s Priority Enforcement Program.

Realistically, U.S. immigration authorities in recent years have not had the resources to deport every immigrant who is technically deportable under criminal immigration law. So DHS focused its energies on locating and deporting immigrants with more serious deportable crimes on their record--such as gang offenses, aggravated felonies, or three or more misdemeanors.

But the Trump administration has discontinued the Priority Enforcement Program. Instead, Immigration and Customs Enforcement (“ICE”) is supposed to focus its resources on all deportable immigrants with any criminal conviction. This would include both:

  • Undocumented (illegal) immigrants who have been convicted of or charged with any crime, and
  • Documented (legal) immigrants who have been convicted of any deportable crime--including minor controlled substances offenses.

President Trump has also restored a program called “Secure Communities,” which had been discontinued by former President Obama. Under the Secure Communities program, local law enforcement agencies are supposed to send fingerprints of arrested suspects to federal immigration authorities--and detain the suspects for up to 48 hours if asked to do so by ICE.

This program will probably make it easier for ICE to identify immigrants who are deportable because of a conviction for a deportable crime.

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