Criminal Convictions and Deportation for Legal Residents and Green Card Holders
IMPORTANT: A REGULAR CRIMINAL DEFENSE ATTORNEY MAY NOT UNDERSTAND THE COMPLEXITIES OF IMMIGRATION LAW. YOU SHOULD GET LEGAL ADVICE FROM AN EXPERIENCE IMMIGRATION LAWYER, even if the offense might appear to be a minor one.
Q: I was arrested but not convicted. Should I be worried?
A: Probably not. Only convictions will be used by the INS to deport you. One exception is if the INS believes that you are a drug abuser because of a long record of drug arrests, or a prostitute because of prostitution arrests. Juvenile convictions handled in juvenile court do not count as a basis for deportation.
Q: I was convicted of a crime during my first year in the U.S. after immigrating, but did not go to jail. Can I be deported?
A: Possibly. Conviction of a crime involving “moral turpitude” during the first five years after being admitted to the U.S. is a common reason for deportation. “Moral turpitude” crimes include theft crimes such as burglary and possession of stolen property, or violent crimes such as assault and battery. There are many others. Even if you were not sentenced to jail time, you may be deportable if the crime you committed could have resulted in a sentence of one year or more in jail.
If you are accused of a drug crime or a crime considered an Aggravated Felony (AF), you are very likely to be in removal proceedings. See the following answer.
Q: What are the other common reasons for deportation due to criminal records?
A: In addition to the above situation, greencard holders could encounter deportation problems if they are convicted of the following crimes:
- Two or more crimes involving moral turpitude at anytime; or
- A drug-related crime; or
- A crime considered an “aggravated felony,” (AF) which includes things like murder, rape, drug trafficking, fraud (over $10,000); and crimes involving theft or violence (including drunk driving) where a judge sentenced you to one year or more of jail time (regardless of your actual time spent in jail).
Q: I have a hearing with the immigration court. Do I need an attorney? What if I can't speak English?
A: Yes. An immigration attorney can look for ways to help you avoid deportation, and for ways to prevent you from re-immigrating if you have to leave the country because of a possibility of a future charge that could lead to a conviction.
You do not have the same guarantees in immigration court that you have in criminal court for your right to legal representation. You have to pay for your own attorney, but you have the right to a translator at the hearings.
Q: How do I know when DHS wants to deport me?
A: You will probably get a “Notice to Appear” letter, unless your correct address is not on record. This will begin the formal removal proceedings. Your chances of defeating this in immigration court are far better if you have an immigration attorney. If you have moved, and not notified DHS, then Immigration Court could hold an in absentia hearing without your presence, issuing a removal order.
Q: What happens if I am caught returning US after a removal hearing has been issued, along with a ten year bar on reentry?
A: The consequences are severe. You can be imprisoned for up to 20 years in some situations. It's best to talk to an immigration attorney, who can help you find ways to prevent your bar on reentry after you have been removed. The sooner in the criminal process that you contact an immigration attorney, the better your chances, even if that means having the immigration attorney work along with your criminal defense attorney to help reduce your criminal conviction to a lesser charge.
Q: What kind of immigration relief is possible?
A: A summary:
(1) Cancellation of Removal
(2) Withholding of Removal / United Nations Torture Convention -- For persons convicted of an aggravated felony, this category of relief might be all that is available.
(3) Re-immigrate to the U.S. under a family-based adjustment
(4) Re-immigrate to the U.S. through political asylum
Warning: If you are deportable because of an aggravated felony, you are not eligible for cancellation of removal, family petition, asylum or naturalization.
Q: Is it too late to eliminate my convictions in criminal court in order to avoid removal?
A: You might be able to “vacate” your sentence and get a new trial if you were not given proper advice by your attorney regarding the effect of a guilty plea on your immigration status. This is especially true in post Padilla v Kentucky which spells out particular reasons for applying "ineffective assistance of counsel" post conviction relief. This will require help from an experienced attorney working in the location you were sentenced because you will have to go back to criminal court for that relief.
Q: My brother recently completed a jail sentence and was immediately taken into custody by the INS. Will he be released?
A: DHS has a mandatory detention policy so that immigrants who are about to be released from serving their jail sentence are immediately taken into ICE custody, and held without the possibility of bail throughout the deportation process. There are now thousands of immigrants being detained in ICE jails because of this policy. ICE officers go into the county and city jails, looking especially for Hispanic sounding names, or any last name that sounds foreign. They then attempt to interview the prisoner, and trick him or her into admitting certain things. If the alien admits things, or some other cause is found, a DETAINER is put in place, and is good for up to 48 hours after custody from the jail ends. This allows ICE to take custody, even if only administratively until such time they can actually make the physical transfer. Here in Alabama, that could be in HOOVER SUB-FIELD OFFICE, ETOWAH COUNTY JAIL, or directly on to the regional ICE detention facility in LOUSIANA.
Q: If I have already been ordered for removal, but the DHS cannot remove me because my home country will not accept me, what will happen?
A: According to DHS regulations, they have 90 days in which to carry out a removal order. In practice, it might take much longer. If you originally came from a country such as Vietnam, Cambodia or Cuba which refuses to accept persons deported from the U.S. because of a criminal record, DHS has the discretion to release you.
Criminal Convictions and Deportation for the Undocumented or Out of Status
Content coming soon!