Immigration Issues from Criminal Charges

Immigrants might face dire consequences if convicted of a felony or misdemeanor criminal offense. Without an experienced, retained criminal defense lawyer, the only plea you should agree to is “Not Guilty!”

Factors that Impact Possible Deportation, Removal, or Inadmissibility

The odds of facing deportation depend on several factors, including the circumstances of the offense and the individual person’s characteristics. The alien’s status, age, length of time in the United States, manner of entry into the country, if the alien has a citizen spouse or children, and the nature of the conviction are among several factors that could impact potential immigration issues from criminal charges. Immigration consequences can include deportation and the inability to re-enter the United States or become a US citizen or permanent resident.

Crimes considered “Crimes of Moral Turpitude” (CMT) are more likely to result in deportation or an inability to obtain citizenship or a green card. A person who faces deportation for a CMT, in limited circumstances, may be able to raise a defense to deportation and request a waiver to stay in the United States.

In most federal courts, a conviction for any offense listed as an “aggravated felony” is grounds for deportation. There are a multitude of “aggravated felony” offenses under immigration law.

Significant Terminology Regarding Immigration Issues from Criminal Charges

It is helpful for anyone seeking information regarding the potential consequences of a criminal conviction to understand the following terminology:

Removal:

The United States might order the removal of a non-citizen due to either grounds of inadmissibility or deportability. Removal proceedings are hearings in U.S. Immigration Courts to deport a non-citizen. A non-citizen removed due to a criminal conviction will also be excluded from admission to the United States for five (5) years up to life.

Deportability:

A lawfully admitted non-citizen is subject to deportability if they commit a Crime Involving Moral Turpitude (CIMT) or an aggravated felony. These grounds apply no matter how long the non-citizen has been in the United States, even if their lawful status has expired.

Inadmissibility:

A noncitizen seeking entry or re-entry into the United States might be inadmissible. Noncitizens in the United States might want immigration benefits that require them to be “admissible.” “Admission,” under federal law, is a complex term of art. For some immigrants, both the grounds of inadmissibility and deportability can be relevant.

Good Moral Character:

Naturalization, as well as a number of forms of relief from removal or exclusion from the United
States, require an immigration judge to find an applicant has “good moral character.” The law provides that anyone with the following characteristics does not have “good moral character”:

a habitual drunkard;

those convicted of prostitution-related crimes, alien smugglers and human traffickers, polygamists, individuals convicted of crimes involving moral turpitude, those convicted of most drug offenses, habitual criminals, etc.

persons who principally derive their income from illegal gambling activities or those convicted
of two or more gambling offenses;

non-citizens found to have given false testimony (perjury) to gain immigration benefits;

anyone convicted of a crime and incarcerated for an aggregate period of 180 days or
more;

those convicted of an aggravated felony after November 29, 1990,

anyone convicted of two or more alcohol or drug-related driving convictions (OWI) within the relevant good moral character period), and

anyone convicted of a crime that does not meet the above criteria because their conviction was structured to avoid immigration consequences.

Conviction:

Most criminal grounds of deportability require a “conviction” as defined by federal immigration law. The term “conviction” means, concerning an alien, a formal judgment of guilt of the alien entered by a
court or, if adjudication of guilt has been withheld, where (a) the alien was found guilty or (b) entered a guilty or nolo contendere plea or admitted facts warranting a finding of guilt, and a judge ordered some form of punishment, penalty, or restraint on the alien’s liberty. The INA’s definition of conviction is considerably broader than most state definitions and thus includes dispositions not regarded as a conviction under Michigan law.

Crime Involving Moral Turpitude (CIMT)

Under federal law, an alien is deportable if they are convicted of a crime involving moral turpitude committed within five (5) years (or 10 years in the case of an alien provided lawful permanent resident status, and is convicted of a crime for which a sentence of one year or longer MIGHT be imposed (as opposed to actually imposed). Moral turpitude is loosely defined as “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality.”In short, dishonest or unethical. Any non-U.S. citizen convicted of multiple, distinct crimes involving moral turpitude is deportable.

Not All Retail Fraud Cases Will Trigger Immigration Consequences

Although most retail fraud convictions can potentially initiate immigration consequences, some do not. The following convictions, so long as the accused has no prior convictions and there are no aggravating circumstances, will not likely be considered Crimes Involving Moral Turpitude (CIMT):

3rd Degree Retail Fraud
Retail Fraud under a local ordinance
2nd Degree Retail Fraud (again, as long as the person does not have a prior CIMT and is not incarcerated for greater than six (6) months)

A Green Card Holder May Still be Deported Due to Criminal Charges

Someone granted permission to live permanently in the United States is called a legal permanent resident (“LPR”). Permanent residents are given “green cards,” photo IDs proving their lawful status. A green card holder may be deported if convicted of a drug or gun charge, domestic violence, stalking, child abuse or neglect, or a crime of violence (murder, rape, theft, or burglary). If the immigrant has been in the United States for less than five (5) years, they may be deportable if convicted of a crime involving fraud, money laundering, bad check, or a similar offense if the potential sentence is one year or more, regardless of the actual sentence.

Individuals without a green card, e.g., not permanent residents, face deportation for a broader range of convictions. For example, someone who is not a permanent resident faces the possibility of deportation if they are convicted of a drug or gun offense, fraud, money laundering, bad check, other financial fraud type crime, domestic violence, stalking, child abuse, or neglect, or a crime of violence like murder, rape, or burglary. These offenses are potentially deportable regardless of how long the individual has lived lawfully in the United States. Deportation is just one of the possible immigration issues from criminal charges.

The Defense of an Alien Facing Immigration Issues in Criminal Court

Representation of a defendant who is not a United States citizen takes special skill, knowledge, and dedication. If a person is deported, they may be unable to complete college, may be separated from family members who remain in the United States, may lose employment, may lose access to necessary medical care, or may face returning to an unwelcoming or unfamiliar country.

Because the stakes are so high, a defense attorney must be tenacious and committed to preventing their client from being convicted of a deportable offense. In addition to considering immigration consequences, the lawyer must also fight for the client to avoid jail time.

A crafty, tenacious, and experienced defense lawyer is an immigrant’s best hope of finding a resolution to a case that does not result in deportation or other immigration consequences. For example, suppose an alien is charged with a deportable offense. In that case, the defense attorney may be able to negotiate a plea bargain where the conviction is for a lesser offense that is less likely to trigger deportation or complications with a future application for citizenship or permanent residency status.

Delayed Sentences, Pleas Under Advisement, Youthful Offender Programs

General practice or inexperienced defense attorneys may not thoroughly understand the immigration consequences following a misdemeanor or felony conviction. Many laws in Michigan can be used to prevent a criminal conviction, even if a defendant is found guilty, put in jail, or sentenced to a term of probation. Although a case may be dismissed under these circumstances, a federal court will still consider the matter a criminal conviction for immigration purposes. A person charged with a crime who is not a United States citizen should never agree to be represented by an attorney who does not have extensive experience representing clients under similar circumstances.

Experienced Attorneys Representing Immigrants and Other Non-US Citizens and Familiar with Immigration Issues from Criminal Charges

The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has decades of experience successfully representing clients who are not citizens of the United States. We have a thorough understanding of potential immigration consequences, and we routinely associate and collaborate with lawyers who are experts in immigration law. If you or a loved one is facing the possibility of a criminal conviction and deportation, it is essential that you hire the best lawyer possible. We will provide an informative, free consultation if you call us. When it seems like there is no hope, we will find a way to help!

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.