The U.S. Supreme Court has held that a non-citizen criminal defendant is entitled to receive advice concerning the immigration consequences of any potential criminal conviction. The reason for this is that while immigration law is considered civil in nature, criminal law and immigration law are so inexorably intertwined that such immigration consequences cannot be considered collateral in nature.
Yet, proper legal advice on the immigration consequences of a criminal conviction has never been more complicated. This is due to the seemingly internal inconsistencies within U.S. immigration law, as well as the inconsistencies between federal law and state law. Indeed, the President's program of granting deferred action for childhood arrivals has only made the task more complicated.
In order to understand the complexity of giving proper immigration advice, it is first necessary to understand how the same conviction can be treated differently within immigration law. This is due, in part, to the difference between inadmissibility and deportability.
Inadmissibility and Deportability
The grounds of inadmissibility apply when an alien is attempting to seek admission to the United States at a port of entry, such as an airport, or when an alien has entered the country without a visa and is placed in removal proceedings. Such an entry is called an entry without inspection, or EWI.
By contrast, the grounds of deportability apply when an alien has entered on a valid visa, but the U.S. Government believes that there are reasons to seek that alien's removal from the United States. For example, if an alien was granted permanent residency, but is later convicted of certain crimes, the U.S. Government can initiate removal proceedings to deport that alien.
The first major contrast between the two concern whether an actual conviction is necessary to remove an alien. When the grounds of inadmissibility apply, it is sufficient that an alien has admitted to committing acts which would constitute a crime that would render the alien deportable. For example, if an alien admits that he has stolen a car, he or she has admitted to theft, which can be a crime that renders the alien removable.
In order to be deportable, however, it is necessary for the alien to have been convicted of the crime in question.
Crimes Involving Moral Turpitude
But even if there is a conviction, that conviction can have different consequences. Take, for example, crimes involving moral turpitude (CIMTs). These are crimes that involve an act of baseness, vileness, or depravity as to be contrary to accepted and customary rules of right and duty between people. CIMTs include theft, fraud, and crimes where there is an intent to do something deprave.
Under the grounds of inadmissibility, if an alien is convicted of, or admits to having committed, one CIMT, then that alien is removable, unless the crime was committed before the alien was 18, and more than 5 years before the date of application for the visa or admission to the United States. There is also a petty offense exception that applies when the maximum penalty for the crime does not exceed one year, and the actual sentence did not exceed six months.
The rules differ if the grounds of deportability apply. A single CIMT will render an alien deportable generally if it was committed within five years of being admitted to the United States, and a sentence of one year or longer may be imposed. If the alien has convicted of two or more CIMTs, not arising out of the same incident, then the alien is also deportable.
This striking difference between inadmissibility and deportability can lead to severe results. If a permanent resident were to leave the United States, say to visit family in his or her home country, then once that alien arrives back in the United States, he or she is again seeking admission. That means that although the alien is a permanent resident, the grounds of inadmissibility apply. If that same alien had been convicted of a CIMT, but that CIMT did not render the alien deportable, the same conviction could render the alien inadmissible.
For example, if a permanent resident is charged with prescription fraud, that is generally a CIMT. If the conviction occurs more than five years after the person became a permanent resident, then it may not render the person deportable. But, if the sentence is for a time greater than six months, and after serving the sentence the alien takes a visit back to his or her home country, that same person with the same conviction will find himself or herself in removal proceedings once he or she returns to the United States.
The Entire Prison Sentence Matters, Even if Part of it Has Been Suspended
In this regard, it is also necessary to understand that even if part of the sentence has been suspended, the entire amount of time is counted for immigration purposes. That is, if this permanent resident, who has been convicted of prescription fraud, receives a ten month sentence, but, due to extenuating circumstances, the judge finds that all but two days of the sentence should be suspended, he or she will still be rendered inadmissible if he or she leaves the United States and attempts to return.
Aggravated Felonies
The next concept that must be understood in order to give proper legal advice is that of an aggravated felony. Aggravated felonies are specifically defined in section 101(a)(43) of the Immigration and Nationality Act. Aggravated felonies include such crimes as murder, rape and sexual abuse of a minor. There are a number of crimes that become aggravated felonies depending on the length of the prison sentence. A crime of theft, for example, becomes an aggravated felony if a sentence of one year or more is imposed. This is regardless of how much of that sentence is suspended. It is also regardless of whether the crime itself is a felony or a misdemeanor under state law.
This is an important concept to grasp. An alien could be charged with grand larceny, a felony. In exchange for a plea of guilty, the prosecutor could recommend reducing the charge to petit larceny, a misdemeanor. Part of the sentence could include a prison term of twelve months, with all but two suspended. From a criminal law perspective, that could look like a good deal.
But, from an immigration perspective, the deal is just as bad as if the alien had been convicted of grand larceny. The reason is that even though this would be considered a misdemeanor under state law, when U.S. immigration law is applied, it becomes an aggravated felony.
Aggravated felonies are essentially the death knell of immigration law. If a person is convicted of an aggravated felony, not only does that person become deportable, but that person becomes disqualified from applying for almost every form of relief from deportation, such as cancellation of removal.
Humanitarian Programs
An added complication comes from the way in which crimes are treated for the purpose of various humanitarian programs, such as asylum, temporary protected status, and deferred action. Each program has its own rules, and each has their own variations.
Asylum
Through asylum, a person can remain in the United States upon a showing of a reasonable fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Asylum can lead to permanent residency and then citizenship.
In asylum law a person becomes ineligible if that person has committed a particularly serious offense. The term "particularly serious offense" is not defined in the statute. But, guidance has been given through case law.
An aggravated felony is presumed to be a particularly serious offense. An aggravated felony with a sentence of five years or more is conclusively presumed to be a particularly serious offense. But, the conviction does not to be an aggravated felony to be a particularly serious offense.
Factors which are considered in determining whether a crime is a particularly serious crime are: (1) the nature of the conviction; (2) the circumstances and underlying facts of the conviction; (3) the type of sentence imposed; and (4) whether the type and circumstances of the crime indicated that the alien would be a danger to the community.
A person granted asylum cannot be deported. However, if an asylee is convicted of a particularly serious offense, then the Government can withdraw asylee status and seek deportation.
Temporary Protected Status
Temporary Protected Status, or TPS, is a program where an alien is permitted to remain in the United States temporarily because conditions in his or her home country prevent the country's nationals from returning safely. This can be due to war, economic circumstances, or even a natural disaster. The President designates a country for TPS. While TPS does not lead to permanent residency, a person granted TPS can be given work authorization.
In order for an alien to qualify for TPS, the alien must first be admissible. Thus, convictions for CIMTs can render a person ineligible for TPS. But, if an alien has been convicted of a crime, and that crime does not render the alien inadmissible, it could still render the alien ineligible for TPS. An alien cannot have been convicted of one felony or two misdemeanors and still be eligible for TPS. If the convictions occur after TPS has been granted, the Government can withdraw TPS for that particular alien.
For example, in Virginia, urinating in public and driving without a license can be misdemeanor offenses. They are not CIMTs, and thus will not render a person removable. But, if an alien with is convicted of urinating in public and driving without a license, that alien can lose TPS.
Deferred Action for Childhood Arrivals (DACA)
Finally, the President's new program of granting Deferred Action for Childhood Arrivals (DACA) has its own set of rules concerning criminal convictions. Deferred action is essentially a promise from the Government that it will not seek the removal or deportation of an alien who is otherwise present in the United States in violation of U.S. immigration law. Deferred action does not lead to permanent residency, but a person granted deferred action may be granted work authorization.
In general, USCIS promises that it will not use the information submitted in the application process to begin removal proceedings. However, if the applicant has a criminal record, then USCIS may refer that alien to ICE for possible removal.
An applicant may not have been convicted of one felony, one significant misdemeanor, or three misdemeanors which are not significant misdemeanors. The big issue for DACA applicants is what constitutes a "significant misdemeanor."
USCIS defines "significant misdemeanor" on its Frequently Asked Questions website. A "significant misdemeanor":
1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,
2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
Several differences between crimes which render a person inadmissible or deportable, and crimes which are considered "significant misdemeanors" exist. For example, driving under the influence is not necessarily a CIMT, and thus may not render a person inadmissible or deportable. Yet, driving under the influence will render a person ineligible for DACA.
Another key difference is that while an entire prison sentence is considered in determining whether a crime is a ground of inadmissibility or deportability, regardless of whether any time has been suspended, for DACA, suspended time does not count.
Criminal Charges Require Precise Immigration Advice
All of these complex and seemingly inconsistent rules make it challenging to provide accurate advice on the immigration consequences of any particular conviction. It is for this reason that a non-citizen should consult with a knowledgeable immigration attorney in order to receive complete advice on whether a particular conviction could result in removal or deportation.
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