If you are an immigrant in the United States, you’re subject to the basic criminal laws that apply to everyone else and also federal immigration laws which have their own definitions of criminal behavior. Thus, a criminal conviction carries much more significance for an immigrant than a United States citizen.
The main penalty under immigration laws for a qualifying criminal conviction is deportation (i.e. “removal”) from the United States. All deportations occur through the immigration courts and require adjudication by an immigration judge.
In 2020, US Immigration and Customs Enforcement (“ICE”) processed 185,884 “removals” reporting 92% of those removed had criminal convictions. What this demonstrates is that the immigration authorities are most focused on deporting those persons with criminal convictions. For this reason, if you’re facing criminal charges, it’s very important to have a skilled and knowledgeable criminal defense lawyer in your corner.
While the federal government says it prioritizes deportation of immigrants who pose a threat to national security or public safety, immigrant advocates criticize the laws saying they are too often applied to persons who don’t pose an real threat. Research shows that serious crimes are rarely committed by noncitizens and many immigrants are deported for victimless crimes or without any criminal conviction at all.
Criminal Law for Immigrants
Under federal immigration law, an immigrant can be deported for any of the following crimes.
- Conviction of a crime of “moral turpitude” (with a sentence of 1 year or longer) committed within 5 years of entering the United States
- Conviction of 2 or more moral turpitude crimes regardless of years since entering the United States
- Conviction of an “aggravated felony” any time after entering the United States
- High-speed flight from an immigration checkpoint
- Failure to register as a sex offender
- Controlled substance conviction, drug abuse or addiction
- Domestic violence crimes
What Is a Crime of Moral Turpitude?
Whether a crime is one of “moral turpitude” has not been clearly defined and has been the subject of some legal debate over the years. According to the Board of Immigration Appeals (“BIA”) – the highest administrative body that interprets and applies immigration laws – moral turpitude includes conduct that shocks the public conscious and is vile or depraved. It involves”malicious intent and actions that are contrary to justice, honesty and good morals.”
What Crimes Are Considered Aggravated Felonies?
- Drug trafficking
- Rape, murder or sexual abuse of a minor
- Firearms trafficking
- Money laundering
- Any violent crime punishable by a sentence of 1 year or more
- Theft or burglary
- Obstruction of justice
- Falsifying documents
- Failure to appear – for sentencing or to face charges
- Crimes involving ransom, prostitution, child pornography, racketeering, or threatening national security
- Conspiracy to or attempt to commit an aggravated felony
Relief From Mandatory Deportation for Criminal Convictions
Immigration laws provide circumstances for some immigrants convicted of crimes to obtain relief from the removal process. If an immigrant facing deportation is able to qualify for one of the exceptions, the individual may be spared from the consequences of removal.
Cancellation of removal – The Attorney General has the authority to cancel the deportation of licensed permanent residents (“LPR”) and undocumented immigrants who meet certain qualifications.
Voluntary departure – A removable immigrant may be allowed to depart to the country of the immigrant’s choice if the immigrant can afford to do so and avoid the bars to re-entry that come with government deportation.
Withholding of removal – An immigrant must not be removed if the immigrant’s life or freedom would be threatened in the country returned to.
Convention against torture (CAT) – CAT provides protection in the form of withholding of removal or deferral of removal for immigrants who legitimately fear being tortured upon return to their country.
Asylum – An immigrant can avoid deportation to a country if the immigrant can show evidence of past persecution in the country or a well-founded fear of persecution upon being returned to the country. Qualifying for asylum, however, is not easy and requires a skilled immigration lawyer who knows how to put together a compelling case.
New Legislation May Affect Immigrants Facing Deportation
Immigration is a hot issue in the United States right now and the laws regarding criminal activity and deportation are constantly challenged and changing. Legislation is being considered that would provide much-needed reforms to the current removal laws and allow for more flexibility in the judicial process
- “New Way Forward Act” – First introduced in 2019, the bill has been reintroduced in 2021 and would provide sweeping reforms for decriminalizing immigrants. The bill would end mandatory detention for those awaiting deportation and restore judicial discretion to grant relief from removal for those with prior criminal convictions. The bill also expands the rights of immigrants by requiring probable cause to arrest and due process before deporting. Criminal convictions more than 5 years old can no longer be the basis for deportation and unauthorized border crossings would no longer be crimes.
- “Remove Marijuana From Deportable Offenses Act” – Both the United States Senate and House introduced separate bills in 2020 to remove the use, possession or distribution of marijuana as a means to deport immigrants. A major sticking point to getting the bill passed is the fact that marijuana is still a controlled substance under federal law even though an increasing number of states have legalized it. A marijuana conviction that is vacated under state law is still considered a conviction for purposes of deportation.
Deportation Relief May Still Be a Ways Off
The current immigration laws in America make it fairly easy to deport immigrants for relatively minor criminal infractions. Although deportation is intended to remove those who are a serious threat to the country, the reality is that most of the persons deported do not present a significant danger. If an immigrant is not able to qualify for some type of relief from removal, there isn’t much else that can be done. Reforms are in the works but the wheels of justice often turn slowly. And that offers no immediate relief for the thousands of families that are negatively impacted by deportation enforcement.
Contact Us Today
Having the right immigration lawyer by your side is the first step towards creating a foundation to your future. The immigration laws are complex and constantly changing. Therefore, having a lawyer that is well-versed, skilled, and experienced with immigration laws is not just important, it’s crucial. If you want a better future and the peace of mind in knowing you or a loved one will receive excellent representation, contact us today. Our lawyers are licensed to appear in every immigration court in the country and can represent you anywhere in the United States or overseas. Create a better future, call us today at (800) 712-0000.