H. Immigration Consequences
1. General Deportation Rules
A defendant who is not a citizen of the United States should consider the immigration consequences of a conviction before entering a plea. An undocumented alien may be deported with or without reason, so any conviction could increase the chances of deportation, but even then, certain defenses to deportation exist which may even grant lawful permanent resident status. Resident aliens will generally only be deported for good cause, and certain criminal convictions may provide that good cause while others may have no effect at all, making it essential resident aliens know the exact immigration consequences of any crime they are accused of.
The specific immigration consequences of criminal history, whether for an undocumented alien or a lawful permanent resident are often difficult to determine, with many exceptions and only a few general rules. The result is that even experienced criminal defense attorneys often inadvertently place their non-citizen clients in danger of deportation when even subtle changes to the wording of a plea or in some cases pleading to a similar charge can avoid deportability completely. The complexity of immigration law and the severe consequences of getting it wrong, such as lifetime deportation and family separation makes it extremely dangerous for anyone who is not a United States citizen to enter into any guilty or no contest plea without first consulting an experienced immigration attorney first.
The list of non-citizens subject to deportation is found in 8 USC §1227. The list includes many reasons not generally applicable to the average criminal defendant, such as deportation for becoming a public charge, plotting to overthrow the government, or falsification of immigration documents. Some crimes, such as recruiting child soldiers and participating in Nazi persecution, are deportable offenses, but the crimes are rarely charged today. The primary classifications of crimes that make noncitizens subject to deportation today are found in 8 USC §1227(a)(2):
(a) Classes of deportable aliens
Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:…
(1) Criminal offenses
(A) General crimes
(i) Crimes of moral turpitude
Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,
is deportable.
(ii) Multiple criminal convictions
Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
(iii) Aggravated felony
Any alien who is convicted of an aggravated felony at any time after admission is deportable.
(iv) High speed flight
Any alien who is convicted of a violation of section 758 of Title 18 (relating to high speed flight from an immigration checkpoint) is deportable.
(v) Failure to register as a sex offender
Any alien who is convicted under section 2250 of Title 18 is deportable.
(vi) Waiver authorized
Clauses (i), (ii), (iii), and (iv) shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States.
(B) Controlled substances
(i) Conviction
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.
(ii) Drug abusers and addicts
Any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.
(C) Certain firearm offenses
Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of Title 18) in violation of any law is deportable.
(D) Miscellaneous crimes
Any alien who at any time has been convicted (the judgment on such conviction becoming final) of, or has been so convicted of a conspiracy or attempt to violate-
(i) any offense under chapter 37 (relating to espionage), chapter 105 (relating to sabotage), or chapter 115 (relating to treason and sedition) of Title 18 for which a term of imprisonment of five or more years may be imposed;
(ii) any offense under section 871 or 960 of Title 18;
(iii) a violation of any provision of the Military Selective Service Act (50 U.S.C. App. 451 et seq.) [now 50 U.S.C.A.§ 3801 et seq.] or the Trading With the Enemy Act (50 U.S.C. App. 1 et seq.) [now 50 U.S.C.A. § 4301 et seq.]; or
(iv) a violation of section 1185 or 1328 of this title,
is deportable.
(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and
(i) Domestic violence, stalking, and child abuse
Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
(ii) Violators of protection orders
Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.
(F) Trafficking
Any alien described in section 1182(a)(2)(H) of this title is deportable….
2. Aggravated Felony
8 USC §1227(a)(2)(A)(iii) relates to Aggravated Felonies. A defendant convicted of an Aggravated Felony faces the worst possible immigration consequences because a defendant convicted of an Aggravated Felony is subject to deportation and will most likely be deported. Further, the defendant will generally be ineligible to apply for most forms of discretionary relief from deportation, such as voluntary departure or asylum. The general Aggravated Felony rules are that (1) the conviction be for a serious offense and that (2) the sentence be for a year or more, but not all offenses require a year sentence to be an Aggravated Felony.
In general, any conviction for theft, fraud, deceit or misrepresentation will be classified as an aggravated felony if the sentence is for 365 days or more OR if the loss was in excess of $10,000, or both. Any crime of violence with a sentence of 365 days or more is also an aggravated felony, as are certain specified crimes regardless of sentence such as possession of child pornography, felon in possession of a firearm and possession of a controlled substance for sale. A crime does not need to be a felony under the criminal law to be classified as an aggravated felony under the immigration law (e.g., misdemeanor possession for sale).
Aggravated felony classification can often be avoided through careful pleading, so make sure that you or your criminal defense counsel consult an experienced immigration attorney with knowledge of immigration-safe criminal pleading.
Aggravated Felonies are defined by 8 USC §1101(a)(43) as follows:
(43) The term “aggravated felony” means—
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18);
(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of Title 18) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(E) an offense described in—
(i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);
(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or
(iii) section 5861 of Title 26 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year;
(H) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography);
(J) an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
(K) an offense that—
(i) relates to the owning, controlling, managing, or supervising of a prostitution business;
(ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or
(iii) is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in—
(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18;
(ii) section 3121 of Title 50 (relating to protecting the identity of undercover intelligence agents); or
(iii) section 3121 of Title 50 (relating to protecting the identity of undercover agents);
(M) an offense that—
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter
(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;
(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.
The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.
3. Crime of Violence
Conviction of a Crime of Violence may also trigger deportation. If the crime is committed against one’s spouse or other form of domestic partner, the defendant is subject to deportation pursuant to 8 USC § 1227(a)(2)(E).
If the defendant receives a sentence of a year or more is imposed, the conviction becomes an Aggravated Felony even if the victim is not a domestic partner. Most crimes of violence are also Crimes of Moral Turpitude (see below), though there are immigration-safe plea options to many crimes of violence that if properly plead can cause only minor or possibly no immigration consequences. As always, make sure to consult an experienced immigration attorney before you enter a plea.
18 USC §16 defines Crime of Violence:
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
This statutory definition may, however, be incorrect. A federal circuit court recently noted that the Due Process Clause precludes the government from taking away a person’s life, liberty, or property under a statute so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so without standard that it invites arbitrary enforcement. Based on this, the court found that the definition given above is void for vagueness under the Due Process Clause of the Fifth Amendment (Baptiste v. Attorney General (3rd Cir, November 8, 2016) 841 F.3rd 601). The United States Supreme Court is currently considering whether the statutory definition of Crime of Violence is valid (Lynch v. Dimaya (2016) 137 S.Ct. 31), but as of September 2017, the court has not yet decided. Therefore, a defendant who pleads to a crime of violence under the current definition may be subject to deportation.
4. Crime Involving Moral Turpitude
The term Crime Involving Moral Turpitude is difficult to define – so difficult that the courts have not even been able to do so. It generally means crimes that show a lack of good morals, such as theft crimes, intent to cause great bodily injury, crimes involving lewdness, and crimes involving malice.
A noncitizen may generally be deported if convicted a felony Crime Involving Moral Turpitude within five years of admission to the United States or if convicted of two felony Crimes Involving Moral Turpitude any time after entry.
There is also a little-understood waiver built into the immigration law that can eliminate the immigration consequences of a crime involving moral turpitude (CMT). This is known as the Petty Offense Exception, and applies when the sentence imposed on a misdemeanor CMT is less than six months and the maximum sentence possible is less than one year for aliens who were only convicted of a single CMT. The Petty Offense Exception even works for felony convictions reduced to a misdemeanor at a later date.
5. Controlled Substance Offense
A noncitizen may generally be deported if convicted of Controlled Substance Offense unless the offense is a single conviction of possession of marijuana less than 30 grams. Other that exception, any and all drug offenses render any alien subject to deportation. There is a defense available for certain drug convictions from 2011 and earlier, however any violation of probation or additional drug offenses will take away this defense. Other immigration-safe strategies for drug cases exist at plea, making it essential that you get expert immigration consequence advice prior to entering any guilty or no-contest plea to any drug charge, including misdemeanors and paraphernalia.