Criminal Defense of Immigrants


§ 5.18 (B)

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(B)  Conviction-Based Immigration Consequences.  The primary types of immigration damage from criminal events are triggered by criminal convictions, that must meet the immigration-law definition of “conviction,” which is sometimes very different than state-law definitions of conviction.  In other words, a disposition in a criminal case, such as deferred judgment of conviction, in some states does not constitute a conviction.  The immigration law, however, may be to the contrary, so the non-conviction state court disposition in fact constitutes a conviction under immigration law triggering deportation and other damaging immigration consequences.  See Chapter 7, infra. 


                (1)  Conviction-Based Grounds of Deportation.  Deportation is the primary type of immigration damage caused by a conviction.  Twenty-four of the 52 different grounds of deportation are triggered by a specified criminal conviction.  See § § 17.12-17.22, infra.[14]  If there is no conviction, as defined under immigration law,[15] a noncitizen cannot be removed under any of these conviction-based grounds of deportation.  For a checklist and discussion of the various dispositions in criminal cases that do not constitute convictions for purposes of deportation, see § 5.27, and Chapter 7, infra.[16]


                (2)  Conviction-Based Grounds of Inadmissibility.  While only 3 of the 37 crime-related grounds of inadmissibility are based on convictions, two of them are very common: convictions of crimes of moral turpitude[17] and controlled substances offenses.[18]  The third conviction-based ground of inadmissibility, multiple convictions with a total sentence imposed of five years or more, is far more rare.  See § 18.15, infra.  See Appendix E for a checklist of all crime-related grounds of inadmissibility.


                (3)  Convictions of Particularly Serious Crimes.  A conviction of a “particularly serious crime” will bar a noncitizen from eligibility for political asylum and withholding of deportation.[19]


                (4)  Felony Convictions.  One felony conviction will trigger certain immigration damage under some relatively rare circumstances, even if the conviction does not trigger a ground of inadmissibility or deportation.  For example, one felony conviction will disqualify a noncitizen from eligibility for Temporary Protected Status[20] or amnesty under the Legalization Programs. [21]


                (5)  Misdemeanor Convictions.  Two misdemeanor convictions will bar a noncitizen from eligibility for Temporary Protected Status. [22]  Three misdemeanor convictions will bar a noncitizen from eligibility for amnesty under the Legalization Programs. [23]

[14] These conviction-based grounds of deportation are also defined in Appendix D, [1], [3]-[6], [9], [10], [11], [16]-[18], [21], [32], [34], [35], [40], [41], [46], [49], [51], [52], infra.

[15] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[16] See also N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 2.4 and Chapter 4 (2005).

[17] See § 18.13, infra.

[18] See § 18.14, infra.

[19]  See § 24.19, 24.31, infra. 

[20]  See § 24.25, infra.

[21]  See § 24.9-24.11, infra. 

[22]  See § 24.25, infra. 

[23]  See § 24.9-24.11, infra.