James called the other day to ask our advice. He wanted to know if he did the right thing in listening to his public defender (PD) and taking a guilty plea to simple assault. It seems that he was involved in a barroom fight a few weeks ago and charged with several crimes. The prosecutor agreed to knock everything down to a single count of assault in return for a guilty plea, with a suspended sentence and unsupervised probation. James’ public defender said that it was a great deal and that he should take it quickly. James told his public defender a couple of times that he is here on an H-1B visa and that he doesn’t want this to affect his job or getting his green card. James’ attorney said he wasn’t sure but that “it shouldn’t be a problem.” Did James’ attorney give him the right advice?
Overview Of Current Law
Understanding the immigration consequences of a particular criminal disposition can be very complicated and involves careful analysis of the elements of the state and/or federal offense and the state’s particular disposition of the case under federal immigration law.
This article is meant to provide only a quick overview of the grounds of removability and inadmissibility. In order to understand the immigration consequences of a particular criminal case disposition for a particular immigrant, you must first understand the distinction between the criminal grounds of deportability and the criminal grounds of inadmissibility, and when each applies.
Deportability Vs. Inadmissibility
There are two separate parts of the immigration law that may trigger removal based on a criminal offense—the grounds of deportability found at INA 237(a)(8 U.S.C. 1227(a)) and the grounds of “inadmissibility” found at INA 212(a)(8 U.S.C. 1182(a)). Which set of grounds may apply to an individual, or whether both apply, depends on the individual’s particular immigration status and situation. “Deportability” refers to the power of USCIS to expel an alien from the United States, whereas “inadmissibility” refers to the power USCIS to prevent someone from entering the United States.
The deportability grounds are applicable to individuals who have been “lawfully admitted” to the United States, e.g., a lawful permanent resident or an alien in H-1B status. An alien has been “admitted” or made a lawful entry into the US only after they have been inspected by an immigration officer and that immigration officer has authorized their admission.
The grounds of inadmissibility apply to everyone else, even individuals who are in the United States but who have not been lawfully admitted to the United States, i.e., undocumented immigrants. In addition, the inadmissibility grounds may be applied to lawful permanent resident immigrants when such individuals travel abroad and seek re-admission.
You must also understand what a “conviction” is for immigration purposes. A conviction includes any formal judgment of guilt that is entered by a court, or if an adjudication of guilt has been withheld, a conviction can still be found where a judge or jury has found the alien guilty or a plea of guilty or nolo contender has been entered or the alien has admitted sufficient facts to warrant a finding of guilt; and a judge has ordered some form of punishment, penalty, or restraint of liberty to be imposed.
As you can see the term conviction for immigration purposes is much broader than in the criminal law context. You may be considered “convicted” even in cases where judgment has been withheld or where your record is “wiped clean” either by the passage of time or where you enter a pre-trial diversion program.
1.Criminal grounds for deportation of lawfully admitted foreign nationals:
The criminal grounds for deportation of a lawfully admitted individual, such as a lawful permanent resident green card holder, are listed in INA Section 237(a)(2), 8 U.S.C. 1227(a)(2), and include the following:
a.Conviction of any controlled substance offense (other than a single offense of simple possession of 30 grams or less of marijuana), whether the conviction is for a felony or misdemeanor.
b.Conviction of a crime involving moral turpitude, whether felony or misdemeanor, committed within five years of admission to the United States and punishable by a year in prison—This category could include crimes in many different categories, e.g., crimes in which either an intent to steal or to defraud is an element (such as theft and forgery offenses); crimes in which bodily harm is caused or threatened by an intentional or willful act, or serious bodily harm is caused or threatened by an act of recklessness (such as murder, rape, and certain manslaughter and assault offenses); and most sex offenses. In many states, Class A misdemeanors as well as felonies are punishable by a year or more in jail so could, if deemed to involve moral turpitude, make an individual deportable if committed within five years after admission.
c.Conviction of two crimes involving moral turpitude, whether felony or misdemeanor, committed at any time after entry and regardless of actual or potential sentence.
d.Conviction of a firearm or destructive device offense, whether felony or misdemeanor.
e.Conviction of a crime of domestic violence, including stalking, child abuse, child neglect, or child abandonment, whether felony or misdemeanor, or a violation of an order of protection, whether issued by a civil or criminal court.
f.Conviction of an aggravated felony—this category, which overlaps many of the above categories, has particularly harsh consequences because convictions falling into the aggravated felony category usually bar any possible waiver of deportation. Aggravated felonies include not only crimes such as murder, rape, and sexual abuse of a minor, but also many drug or firearm offenses, regardless of sentence; any crime of violence, theft or burglary offense, or obstruction of justice offense for which an individual gets a prison sentence of one year or more; fraud or deceit offenses where the loss to the victim(s) exceeds $10,000, as well as an expanding list of other specific offenses. As a result of broad interpretations of the statutory definition of “aggravated felony,” the term may include even some state misdemeanors such as a misdemeanor drug possession offense (preceded by a prior drug offense), misdemeanor sale of marijuana, or a misdemeanor petty larceny offense with a one-year prison sentence, actual or suspended.
A foreign national who has not been admitted to the US, lawfully present but who has some claim to lawful status (e.g. married to a U.S. citizen) might be made permanently ineligible to be admitted as a lawful immigrant if convicted of certain crimes, or if he or she merely admits having committed a crime.The
a.Conviction or admitted commission of any controlled substance offense, whether felony or misdemeanor (this ground will apply even if a foreign national just admits to smoking marijuana).
b.Conviction or admitted commission of a crime involving moral turpitude, whether felony or misdemeanor (subject to a one-time petty offense exception).
c.Conviction of two or more offenses of any type with aggregate sentences to imprisonment of at least five years.
d.Prostitution within 10 years, and commercialized vice.
3.Criminal bars to eligibility for U.S. Citizenship
a.In the case of a lawful permanent resident immigrant, ineligibility for U.S. citizenship is an additional possible negative consequence of a criminal case. This comes from the requirement that an immigrant must demonstrate good moral character to become a US citizen.
b.If a lawful permanent resident is deemed to have been convicted of an “aggravated felony”, he is permanently barred from being able to show the requisite good moral character for U.S. citizenship.
c.A lawful permanent resident could also be deemed ineligible for citizenship based on conviction or admission of other offenses that fall into the criminal inadmissibility grounds, or other evidence of conduct indicating lack of good moral character coming out of a court proceeding.
Citizenship adjudicators are required to consider an individual’s conduct during the period of residence and good moral character required for a grant of citizenship, which is generally five years, but citizenship adjudicators can and will often look back even further in time.
As is the case with removal consequences, recent legislation has made citizenship ineligibility an even more important consequence than it was in the past. Primary examples are the new eligibility rules for various federal and state government benefits that now or in the near future may wholly or partially bar non US citizens.
It is also important to remember that those applying for citizenship with previous convictions not only risk denial of the naturalization application, but also risk being put into “removal” or deportation proceedings.
The potential for findings of a criminal “conviction” poses serious problems for non-citizens of the US. The federal immigration definition of what constitutes a conviction for immigration purposes includes not only formal judgments of guilt, but also deferred adjudications where there is a plea or other admission of guilt plus some penalty or restraint ordered by the court. The list of acts that can lead to inadmissibility or removal from the US continue to grow.
Moreover, the Department of Homeland Security is detaining and removing more and more non-citizens each year. In fact, DHS statistics show a dramatically increasing rate of removals based on criminal grounds over the past twenty years. If you are a non-citizen and have been arrested or charged with any crime you MUST seek the assistance of an attorney that is familiar with both criminal and immigration law BEFORE you enter a plea or go to trial. Your very ability to remain in the US may depend on his or her expertise.
Back to James, whom we met at the top of this article. He may or may not have future problems based on his guilty plea. Much will depend on the specific terms of the statute that he pled to, and how long the suspended sentence is. James could have avoided any uncertainty if he had spoken with an immigration attorney before taking the plea deal.
The above article is brought to you by “VisaPro.com“. VisaPro’s US Immigration Lawyer Services include K-1 Visa, K-3, Adjustment of Status, Green Card, and over 100 Immigration Services. The information in this article is not intended to be legal advice.
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