Immigration Law and Immigration Consequences of Criminal Convictions
The Immigration and Nationality Act (INA) provides grounds for a noncitizen’s removal based on various immigration violations, some of which are related to criminal activity. A noncitizen may be removable from the United States for reasons separate and apart from having committed certain crimes. Recent immigration laws have focused on removing or deporting noncitizens who have engaged in Criminal Barrister acts. Every year, thousands of immigrants, including those who are legal permanent residents in the United States are placed in removal proceedings because of criminal activities and convictions. Some crimes may have been minor or may have been committed many years ago. However, there is no statute of limitations in removal proceedings. These offenses are most often classified as “aggravated felonies” or as “crimes of moral turpitude.” Regardless, the immigration consequences of any criminal conduct of this type may be deportation. Even if your criminal record is wiped clean by an expungement, it is still considered a conviction in removal proceedings in immigration court, with few exceptions. Potential immigrants should be as informed about the laws as possible. If you have any questions or concerns about your immigration status, or fear removal based on a criminal conviction, call or email our Los Angeles immigration attorneys for confidential expert legal advice.
What are the immigration consequences of committing a crime of moral turpitude?
In general, a crime of moral turpitude (CIMT) has as an element fraud or other dishonest intent, it involves moral turpitude. Under INA, you are deportable if within five years of the date of admission to the United States, you commit a CIMT for which a sentence of one year or more may be imposed. This may include misdemeanors that can be punished by a one year sentence. Additionally, you are deportable if you are convicted of two or more CIMTs not arising from the same scheme of criminal misconduct at any time after admission to the United States, regardless of the sentence length imposed. For more information on CIMTs, please visit our section on the INA and crimes of moral turpitude. [LINK TO CIMT] Immigration laws have been changing in recent years. Our experienced immigration lawyers in Los Angeles can provide you with the legal counsel you need to avoid removal. Call or email us for a free initial consultation about your immigration options.
What are the immigration consequences aggravated felonies may trigger?
Through the INA, Congress imposes severe immigration penalties for a conviction of an aggravated felony. Even without a conviction, if a noncitizen has committed an aggravated felony, they may be subject to harsh immigration penalties nonetheless Congress also provides severe federal criminal penalties for noncitizens that unlawfully re-enter the United States after having been convicted of an aggravated felony and deported or removed. For more information on crimes that are considered aggravated felonies by the INA, please visit our section on aggravated felonies. [LINK TO AGGRAVATED FELONIES]
At least one court has held that an immigration judge may deny relief based upon a criminal conviction that was not charged as a ground of removal in the Notice to Appear. This means that there are potential immigration effects for every conviction in a noncitizen’s record, not just the convictions that have been charged by the DHS as grounds of removal. If you need legal counsel on your immigration case to determine how you can avoid removal from the United States, call or email our experienced immigration attorneys in our Los Angeles immigration law firm. [LINK TO CONTACT JCS]
Are any waivers available if I have committed an aggravated felony and still have an immigration case?
A noncitizen with an aggravated felony conviction is ineligible for most forms of relief from removal or deportation. Although generally there is a complete bar to relief in immigration court, there are some exceptions. For example, a noncitizen subject to inadmissibility will be barred from relief for controlled substances convictions except a single conviction for simple possession of less than 30 grams of marijuana.
What are the differences between inadmissibility and removability in immigration law?
Any noncitizen’s removability for a crime depends on whether his or her state or federal conviction fits within one or more classes of removable offenses identified in the INA. The INA separates removal grounds into two categories: inadmissibility grounds and deportability grounds. Both inadmissible and deportable noncitizens are referred to as “removable” individuals.
The question of which category applies depends on whether you have been lawfully admitted to the United States upon entry after inspection and authorization by an immigration officer. If you were not admitted to the United States, you are subject to removal based on one or more grounds of inadmissibility. In contrast, a noncitizen admitted to the United States and who later commits a crime may be subject to removal based on one or more grounds of deportability. Essentially, people who came into the United States with valid visas but then overstayed their visas or otherwise did something to invalidate those visas, are subject to the grounds of deportability. A noncitizen admitted to the United States may also be considered deportable because he or she was inadmissible at the time of their admission, and therefore the admission was improper.
For more information on what acts will cause removal or deportation of immigrants, regardless of citizenship status, please visit our section here. [LINK TO ACTS THAT CAUSE REMOVAL OF IMMIGRANTS ] For more information on what crimes cause inadmissibility, visit our section here. [LINK TO CRIMES THAT CAUSE INADMISSIBILITY ]
What forms of relief are available to the noncitizen who has committed a crime?
It may be nearly impossible to obtain a criminal disposition or classification in court that will guarantee that a noncitizen will not be subject to removal at all. However, an experienced attorney will try to prevent any type of conviction that could bar relief in immigration court. Even if you are ordered removed, an immigration court can still order that you not be removed by granting some form of relief from removal. The requirements for the various forms of relief can be extremely complex, and criminal defense counsel will need to work with immigration counsel to determine the noncitizen’s immigration status and potential some type of relief. Call or email our Los Angeles immigration attorneys at (213) 738-8700 to receive a free consultation today.
For more information on pleas and removability, please visit our section on pleas. [LINK TO PLEAS]
If you would like to know more about other means for relief through the court, please visit our section on discretionary relief. [LINK TO DISCRETIONARY RELIEF]
For more information on what waivers might be available to you after you have been convicted of a crime and face removal, please visit our section on waivers of inadmissibility for immigrants who have been convicted of a crime and waivers of inadmissibility for removal. [LINK TO WAIVERS OF INADMISSIBILITY FOR IMMIGRANTS WHO HAVE BEEN CONVICTED OF A CRIME] [LINK TO WAIVERS OF INADMISSIBILITY FOR REMOVAL]
Can conviction in criminal court be vacated based on lack of advisement of immigration consequences?
The Court held that because of the severity of deportation and the inextricable link between immigration consequences and criminal proceedings, the Sixth Amendment of the U.S. Constitution requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.
The Court expressly rejected limiting immigration-related ineffective assistance of counsel (IAC) claims to cases involving bad advice, such that a defense lawyer’s silence regarding immigration consequences of a guilty plea constitutes IAC. Even where the deportation consequences of a particular plea are unclear or uncertain, a criminal defense attorney must still advise a noncitizen client regarding the possibility of adverse immigration consequences. If you received ineffective assistance of counsel regarding your immigration options during your criminal case, contact JCS Immigration and Visa for a free initial consultation. Our Los Angeles attorneys specialize in immigration law. Contact us for your free and confidential initial consultation.
Immigration Effects of Post-Conviction Relief
Different forms of post-conviction relief have different immigration effects. Criminal court orders to vacate a criminal conviction, for purposes of eliminating the adverse immigration consequences of the conviction have been increasingly challenged by the Department of Homeland Security. To count as an eliminated conviction in immigration courts, an order vacating a criminal conviction must be vacated as legally invalid on some ground has been eliminated as a source of adverse immigration consequences. The order must say that the conviction is vacated because the conviction is legally invalid on a ground that existed at the time the conviction arose. This also allows re-sentencing in federal criminal court. State or federal executive pardons are effective to eliminate the conviction as an aggravated felony, crime of moral turpitude, or high speed border chase conviction.
For more information on the petty offense exception for immigrants, visit our section on this exception. [LINK TO PETTY OFFENSE EXCEPTION]
What relief from removal may be available to me?
In California, the criminal court has the discretion to reduce certain felony convictions to misdemeanors under the Federal First Offender Act. This act provides for the withholding of judgment, followed by dismissal, for first convictions in federal court of simple possession of any controlled substance. After dismissal, this disposition shall not be used against the defendant for any purpose, which includes immigration purposes. For more information, visit our section on the Federal First Offender Act. [LINK TO FFOA]
If a conviction is vacated solely to eliminate the immigration consequences, or due to rehabilitation laws, but is without any claim that the conviction is legally invalid, the conviction usually will be considered for immigration purposes. Any adverse immigration consequences of the conviction remain, unless the state rehabilitative relief may eliminate the immigration effects of first-time convictions of simple possession and equivalent offenses, as discussed below.
The DHS may attempt to challenge orders vacating convictions on the basis that they are beyond the jurisdiction of the criminal court. Contact us to learn how our immigration law firm can assist you with your immigration benefits.