A non-citizen may become subject to deportation or removal from the United States as a consequence of certain criminal convictions.  Unfortunately, many non-citizens do not realize that a minor criminal infraction or conviction, even if it occurred decades ago, can trigger deportation or removal proceedings.  For example, if a non-citizen has a conviction for which he or she received probation and removal proceedings are initiated on the basis of that conviction, he or she could be subject to indefinite mandatory detention in immigration custody and may ultimately be ineligible for a waiver of deportation or removal, even if he or she has been the holder of a green card for decades prior.

Challenging the government’s claim that a person is deportable or removable is legally complicated.  If you want to fight your case, do not admit to the allegations against you and consult with an immigration attorney who can help prove that the crime you were convicted of is not a deportable or removable offense.

Generally, deportation or removal proceedings involve a three-step inquiry.  First, the immigration Judge will decide if you are deportable or removable because you triggered one of the many grounds of inadmissibility or deportability under immigration law.  Second, the Judge will decide if you are eligible for “relief” from deportation or removal.  Third, the Judge will decide whether you have met the legal and discretionary standards entitling you to relief from deportation or removal.

CRIMINAL GROUNDS FOR DEPORTATION OR REMOVAL

The criminal grounds of deportation or removal generally require that there be a  “conviction,” i.e., a finding of guilt with some form of punishment.  State law does not govern when determining whether a disposition will be considered a conviction for immigration purposes.  Rather, under US immigration law, “conviction” not only encompasses a finding or plea of guilt, but also includes vacated dispositions involving pretrial drug diversion, pleas of no contest or deferred adjudications, expungements and prayers for judgment.

As such, it is wise to consult with an attorney before pleading guilty or accepting a plea agreement because the admission of any act that could constitute a crime may serve as grounds for deportation or removal.

A non-citizen who has been lawfully admitted into the United States may be subject to deportation or removal if convicted of: (i) an aggravated felony; (ii) a crime involving moral turpitude committed within five years of the date of admission and for which a sentence of one year or longer may be imposed; or (iii) two crimes involving moral turpitude at any time after admission.

While there are many crimes that could form the basis for deportation or removal, the most common are:

  • Drug Offenses (possession or sale)
  • Fraud Offenses (including credit card fraud and passport or visa fraud)
  • Theft Offenses (including burglary and robbery)
  • Aggravated Felonies (including murder, rape, sexual abuse of minor, prostitution)
  • Crimes Involving Moral Turpitude (includes offenses with intent to steal or defraud, many aggravated assaults and most sex offenses).
  • Domestic Violence (including stalking, child abuse or neglect, violation of a protective order)
  • Firearm Offenses

If you have ever been convicted of any of the crimes set forth above (or any other crime), it is in your best interest to consult with an immigration attorney because it may affect your immigration status and ability to remain in the United States.

ELIGIBILITY FOR RELIEF FROM REMOVAL OR DEPORTATION

While a non-citizen should always challenge the government’s claim of deportability or removability, in the event that a Judge determines that you are deportable or removable, a non-citizen may nonetheless be eligible for relief from deportation or removal under certain circumstances.  If found to be eligible, a non-citizen will either not be removed from the United States, or removal may be postponed to a later date.  This is why it is imperative that you consult with an immigration attorney if you believe an incident in your past could possibly trigger deportation or removal proceedings, or if you have already been served a “Notice to Appear” and thus currently in deportation or removal proceedings.  In either instance, the sooner you speak with an immigration attorney, the better your chances are for presenting a strong case for relief.

Where a non-citizen seeks relief from deportation or removal, the non-citizen has the burden of showing eligibility for relief.  Depending on the specific facts of a case, a non-citizen may be eligible for relief from deportation or removal through some of the following forms:

Voluntary Departure

  • This is the most common form of relief from deportation or removal. Here, the non-citizen is allowed to leave the United States on his or her freewill without bearing the stamp of official deportation or removal.  Depending on the facts of the case, a non-citizen who voluntarily departs may re-enter the United States in the future after the expiration of a certain amount of time, but must nonetheless voluntarily depart within a specified period of time.

Adjustment of Status

  • Adjustment of status is the process of applying for lawful permanent resident status when a non-citizen is physically present in the US. Here, under certain circumstances a non-citizen in deportation or removal proceedings may be eligible to apply for a green card through a US citizen or permanent resident family member (Form I-130, Petition for Alien Relative), which is filed by the US citizen or lawful permanent resident Petitioner.
  • Only lawful permanent residents or persons who entered with a visa but overstayed are eligible for this form of relief.

Asylum (Defensive)

  • Any foreign national who is in deportation or removal proceedings and can demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group or political opinion, and is therefore unable or unwilling to return to his or her country of nationality is eligible to file apply for asylum defensively. Here, asylum is applied for as a defense against removal from the United States, and the individual’s own testimony will ultimately prove to be the most critical factor to any asylum determination.
  • Form I-589, Application for Asylum and for Withholding of Removal

Withholding of Removal

  • Withholding of removal is another protection available to individuals fleeing persecution in their home countries. Withholding of removal is a non-discretionary form of relief from removal that is available to those individuals who can show a clear probability of persecution by the government or a group the government cannot or will not control on account of race, religion, nationality, political opinion or membership in a social group.
  • The application for “withholding of removal” is the same application as for asylum (Form I-589, Application for Asylum and for Withholding of Removal). In fact, an applicant automatically applies for both forms of relief upon submission of an asylum application.

Cancellation of Deportation or Removal for Certain Lawful Permanent Residents

  • Where a legal permanent resident is put in deportation or removal proceedings based upon the commission of a deportable crime, Cancellation of Removal is a form of relief that an Immigration Court may grant after balancing the positive and negative factors relating to a deportable non-citizen. Cancellation of Deportation or Removal is a discretionary form of relief and thus even if you meet all of the eligibility requirements, an immigration Judge can nonetheless determine you do not deserve to be approved and issue a denial of your case.

Waiver Under Former INA §212(c)

  • Here, only a narrow class of persons are eligible for this form of waiver, specifically, those who pled guilty to a crime (including aggravated felony) prior to April 24, 1996.

Waiver Under INA §212(h)

  • A waiver pursuant to Section 212(h) of the Immigration and Nationality Act (INA) primarily deals with inadmissibility due to convictions for crimes involving moral turpitude or prostitution, subject to certain exceptions.

HOW TO WIN RELIEF IN YOUR DEPORTATION OR REMOVAL CASE

Just because a Judge rules that you are eligible to apply for deportation or removal relief does not mean that you have won your case.  It simply means that the Judge thinks you have met the basic requirements and is giving you a chance to apply for relief.  Therefore, be cautious of anyone who says he or she can guarantee that you will win your case.

In making a decision as to whether you are entitled to relief from deportation or removal, a Judge will look at positive and negative factors about your life, as well as assess the veracity of your testimony and the testimony of others offered in support of your application for relief.

Some of the positive factors a Judge will consider include, but are not limited to:

  • Family ties within the United States;
  • Long term residency in the United States;
  • Evidence of hardship to your family members if you are deported or removed;
  • Evidence of hardship to you if you are deported or removed;
  • Reports about your country about human rights and economic conditions;
  • Service in the United States Armed Services;
  • History of employment;
  • Ownership of property in the United States;
  • Tax history;
  • Proof of rehabilitation;
  • Community service; and
  • Any other evidence that may exist of your good moral character.

Some of the negative factors considered in deportation or removal proceedings include: Criminal history and circumstances of the crimes for which you have been convicted; lack of work history and payment of taxes; any other violations of the immigration laws; or any other evidence of bad character.

Upon assessing the different components of your life and reviewing all of the evidence and testimony offered by you and the government, the immigration Judge is required to weigh and balance all your negative and positive factors equally.  However, no matter the initial outcome in the Immigration Court, both you and the government have the right to appeal the Judge’s decision to the Board of Immigration Appeals (BIA).

COMPETENT LEGAL REPRESENTATION IS NECESSARY

There is rarely a case that is a clear-cut “winner” or “hopeless.”  As such, it is always in your best interest to work with competent legal representation so that your case can be properly presented before the Court.  In fact, cases are often lost simply because failure to submit sufficient and/or required documentary evidence in support of a deportation or removal relief application.

If you wish to consult with an immigration attorney about incidents in the past that may become problematic in the future, or about a case that has already been initiated against you or a family member, please contact Oliver P. King, an immigration attorney in southern California, to schedule a consultation.