Pleas in Immigration Court
How does a plea in court affect removability?
A noncitizen’s removability based on a plea may also depend upon whether such a plea would result in a conviction as defined in the INA. The INA also includes grounds of removal based on any criminal conduct alone, regardless of whether there is a conviction. These grounds are generally based on: (1) a noncitizen’s admission that he or she committed a crime; or (2) a finding by immigration authorities that there is reason to believe that an individual has engaged in criminal activity. Most of these grounds are set forth as grounds of inadmissibility.
Criminal convictions or actions complicate your immigration status or immigration case. To receive expert legal counsel on your options, call or email our experienced immigration attorneys. [LINK TO CONTACT JCS]
CRIMINAL ACTS THAT CAUSE REMOVAL OF IMMIGRANTS
What acts will cause removal or deportation of immigrants, regardless of citizenship status?
Grounds of deportation are triggered by either a conviction, or by conduct. In many cases, however, an experienced attorney may be able to carefully construct a criminal disposition to avoid establishing both conviction and conduct based grounds.
- Any conviction that is an aggravated felony, regardless of the date of commission or conviction (even if it is a misdemeanor) triggers mandatory deportation. Once deported, the noncitizen will never be able lawfully to return to the United States to live.
- conviction for violation of any law related to a controlled substance will also result in a noncitizen’s deportation. In many cases, no relief will be available to avoid removal on the basis of a controlled substances offense.
- Convictions of crime(s) of moral turpitude triggers deportation if it was committed within five years of admission and is punishable by at least one year imprisonment. Conviction of two crimes of moral turpitude after admission triggers mandatory deportation.
- Certain domestic violence convictions and Temporary Restraining Order violations are also criminal grounds of deportation.
CRIMINAL ACTS THAT CAUSE INADMISSIBILITY OF IMMIGRANTS
What crimes render a noncitizen inadmissible according to the Immigration and Nationality Act?
There are many grounds for inadmissibility. Under the INA, any person who has been convicted of a CIMT, or who admits committing acts which constitute the essential elements of a CIMT, is inadmissible to the United States. The following criminal convictions will make you subject to inadmissibility:
- Conviction or admitted commission of any controlled substance offense, or government knowledge or reason to believe that the individual is an illicit trafficker, or knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking, in a controlled substance.
- Conviction or admitted commission of a crime involving moral turpitude for types of offenses covered by this immigration law term-of-art), subject to a petty offense exception if no prior crime and the offense is not subject to a potential prison sentence in excess of one year and does not receive an actual prison sentence in excess of six months.
- Conviction of two or more offenses of any type plus aggregate sentence of imprisonment of at least five years.
- Prostitution and commercialized vice.
- Government knowledge or reason to believe that the individual has been a knowing aider, abettor, assister, conspirator, or colluder with certain traffickers in severe forms of trafficking in persons.
- Government knowledge or reason to believe that the individual has engaged, is engaging, or seeks to enter the U.S. to engage in money laundering, or who is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in money laundering.
- Presence in the United States for noncitizens who were previously removed, unlawfully present noncitizens, noncitizens without permission or parole, noncitizens with false claims to citizenship, or noncitizens with lack of documentation to remain in the U.S.
Discretionary Relief in Immigration Court
Most forms of relief from removal are discretionary. Even if it cannot be considered when evaluating the fact or nature of a conviction, certain information regarding a respondent’s criminal history can be examined by an Immigration Judge to help in deciding whether to grant relief as a matter of discretion. In discretionary decision making, the Immigration Judge is allowed to consider a respondent’s criminal history even when that history does not form the basis for the charge of removal. In determining whether relief is merited as a matter of discretion, the Immigration Judge cannot consider arrests not resulting in a conviction, and charges that have been dismissed, other than those dismissed as a result of a diversion program. Our dedication to immigration law gives us in-depth knowledge of the frequently changing laws and regulations under which noncitizens may stay in the United States even if they committed a crime. For an expert and confidential consultation, call or email JCS Immigration and Visa Services.
PETTY OFFENSE EXCEPTION
What is the petty offense exception for immigrants who have committed a crime?
If you only have one criminal offense, an exception commonly called the “petty offense exception” may be available to you. If you qualify for the petty offense exception, you are not inadmissible. This applies if the maximum sentence imposable for the offense was one year, and you received a sentence of six months or less. This provision generally does not cover felonies, since the maximum sentence for most felonies is more than one year. Misdemeanor convictions for “wobbler” offenses, or those chargeable as either a misdemeanor or a felony, may be able to use the petty offense exemption if they can get their offense classified as a misdemeanor.
There is also an exception for a single offense committed while a juvenile if any jail term was completed more than five years ago. For help in determining if you are eligible for the petty offense exception or any of your immigration status or case concerns, call or email our Los Angeles immigration attorneys for a free initial consultation.
WAIVERS FOR IMMIGRANTS WHO HAVE BEEN CONVICTED OF A CRIME
What is a section 212(c) waiver of deportation or inadmissibility for convictions before 1997?
212(c) waiver: Prior to 1996, this was the most common form of relief from deportation or inadmissibility available to legal permanent residents (LPR) who had been convicted of a crime. In 1996, Congress eliminated this form of relief and replaced it with cancellation of removal discussed above.
Eligibility for a 212(c) waiver:
You may qualify for 212(c) waiver if you meet the following criteria:
- You are an LPR and pled guilty to a crime (including an aggravated felony but not including a firearm offense) before April 24, 1996.
- You have lived in the US for 7 years;
- The positive factors in your life outweigh the negative ones; Note that if you served a term of imprisonment of 5 years or more for one or more aggravated felony convictions, you may be ineligible for 212(c) relief.
- You cannot have previously been granted cancellation of removal or waiver under 212(c) of the Immigration and Nationality Act (INA)
- You cannot be a terrorist, crewman, or exchange visitor;
Once you satisfy these requirements, the judge must decide if the positive factors in your life outweigh the negative factors before s/he can grant relief. For help assessing whether you are eligible for this form of waiver, contact our experienced Los Angeles immigration attorneys.
What is a section 212(d) waiver of inadmissibility for nonimmigrant visa applicants?
Section § 212(d)(3) of the Immigration and Nationality Act waives virtually all grounds of inadmissibility for non-immigrants including health, criminal, prostitution, smuggling, and unlawful presence. The only grounds of inadmissibility not waived are certain security-related grounds related to espionage, sabotage, genocide, and Nazi Persecution.
Therefore, this waiver is available to the vast majority of inadmissible individuals. The 212(d)(3) waiver must be anchored to a nonimmigrant visa, such as a tourist, student, H-1B or L visa. This waiver is important because it includes few statutory grounds of ineligibility. It could be used to obtain admission on a nonimmigrant visa for an applicant who had previously been deported from the United States. It is within the discretion of the Attorney General to grant or deny the waiver. For assistance with applying for your waiver, contact our immigration lawyers at JCS Immigration and Visa Services.
Eligibility for a 212(d)(3) waiver:
The Board of Immigration Appeals has listed three criteria for determining whether to approve or deny a Section 212(d)(3) waiver:
- the risk of harm to society if the applicant is admitted
- the seriousness of the applicant’s prior immigration law, or criminal law, violations, if any;
- the reasons for wishing to enter the US.
WAIVERS OF INADMISSIBILITY FOR REMOVAL
What is a section 212(h) waiver of inadmissibility in removal proceedings?
Relief is available in deportation and removal proceedings in conjunction with an application for adjustment of status, where it may be used to waive inadmissibility that would otherwise preclude adjustment of status. The section 212(h) waiver is available nunc pro tunc, allowing the applicant to reapply for admission retroactively, which may effectively dispose of the charges against him. Finally, the Attorney General, in his discretion, must consent to the noncitizen’s applying or reapplying for a visa, for admission to the United States, or for adjustment of status. Lawful permanent residents seeking admission to the United States may also apply for section 212(h) relief, standing alone, in order to overcome a ground of inadmissibility that would otherwise preclude his or her admission.
Eligibility for a 212(h) Waiver:
If your criminal conviction falls under the CIMT or prostitution ground of inadmissibility or if you have a single marijuana possession conviction involving less than 30 grams of marijuana, you may be eligible for a waiver pursuant to Section 212(h) of the INA. To be eligible for this waiver you must meet the following criteria:
- You have not been convicted of a drug offense (except for one time simple possession of 30 grams of marijuana);
- If you committed your crime more than 15 years ago of your crime was prostitution, you will need to show that you are rehabilitated;
- If your crime was committed less than 15 years ago and it did not involve prostitution, you will need to show that you have a spouse, parent, son or daughter who is a United States Citizen or a lawful permanent resident, and denial of your admission would result in extreme hardship to your qualifying relative;
- If you are an LPR you must have lived in the United States for 7 years before your immigration case started;
You cannot apply for a 212(h) waiver if you are a lawful permanent resident (LPR) and have been convicted of an aggravated felony. Note, however, that this provision applies only to LPRs. A person who overstayed his or her visa or parolees may still apply for adjustment of status with a 212(h) waiver. If you have any questions about whether you qualify or for applying for your waiver, contact our experienced immigration attorneys at (213) 738-8700 to receive a free consultation today.
Federal First Offender's Act
Preventive Measures to Avoid Immigration Consequences of Criminal Convictions Through deferred entry of judgment and the Federal First Offender's Act
Will a deferred entry of judgment plea in California help my immigration case?
California law allows for a deferred entry of judgment (DEJ) program that lets eligible defendants to be "diverted" out of the criminal court system and into a drug rehabilitation program. The theory behind the program is that nonviolent drug offenders would benefit much more from treatment and education than from jail and a criminal record. This also means that there is the opportunity to have criminal proceedings suspended while an attempt is made to complete a drug treatment program.
Generally speaking, the defendant enters a guilty plea to the charge or charges. If the court determines that the defendant is a good candidate for drug diversion, the judge will suspend the criminal proceedings. The suspension will typically last for a period of 18 months, although it may be as long as three years while the defendant participates in a drug rehabilitation program.
Noncitizens who were convicted before July 14, 2011 will receive the benefit of these state rehabilitative laws and will have their conviction eliminated for the immigration purposes allowing some forms of relief. If you have any questions regarding whether this form of relief is available to you, please call or email our experienced immigration attorneys.
How does the Federal First Offender's Act affect a conviction for immigration purposes?
A controlled substance conviction may subject a noncitizen to removal or deportation, denial of naturalization, and exclusion from admission. However, a federal controlled substance conviction that has been expunged under the Federal First Offender Act (FFOA) is not considered a conviction for immigration purposes. A state controlled substance conviction was previously treated similarly to federal convictions. Noncitizens who had their first simple drug possession convictions expunged under state rehabilitative statutes qualified for relief, and the immigration consequences of their first simple drug possession convictions were eliminated. Thus, the expungement of a state conviction would not be considered for immigration purposes.
However, this law changed on July 14, 2011. The Ninth Circuit held that “rehabilitative relief” would no longer eliminate a first conviction for a simple possession drug offense. Therefore, any state controlled substance convictions after July 14, 2011 are considered in immigration court. This means that a state conviction after that date that has been expunged still remains a conviction for immigration purposes. Noncitizens who were convicted before July 14, 2011 will still be treated under the prior laws and can receive the benefit of state rehabilitative laws. They can have their conviction eliminated for immigration purposes, allowing some forms of relief from removal, whereas noncitizens convicted after July 14, 2011 will not receive these benefits.
Eligibility for the FFOA
Only two offenses qualify for FFOA relief under current law:
- Simple possession of any controlled substance at all. This includes possession of controlled substances even if simple possession is considered an aggravated felony. This is because the FFOA applies to possession of all federally listed controlled substances without exception.
- Possession of drug paraphernalia.
Additionally, to qualify for relief under the FFOA:
- The conviction must have occurred on or before July 14, 2011. This means that the sentence must have been imposed on or before that date.
- The conviction must be for simple possession of any controlled substance, or possession of drug paraphernalia, or any other controlled substances conviction that is (a) less serious than simple possession, and (b) not penalized under federal controlled substances legislation.
- You must not have a prior conviction of violating a federal or state law relating to controlled substances and not have previously been accorded first offender treatment under any law. A prior state or federal controlled substances conviction will disqualify you from FFOA treatment.
- Rehabilitative relief is effective to eliminate the adverse immigration consequences of qualifying convictions only in removal proceedings or other immigration proceedings in the Ninth Circuit. Other areas of the United States will not follow this ruling regardless of the date of the conviction.
- The rehabilitative relief can be granted by any state courts or even foreign countries, but it must be generally similar to FFOA treatment.
- The rehabilitative relief for a qualifying conviction may be granted after July 14, 2011, however the conviction itself that must occur on or before that date for this relief.
- Probation cannot be violated.
This area of immigration law is particularly complicated. If you think you may qualify for FFOA relief, contact our Los Angeles immigration attorneys for help.