Criminal Defense of Immigrants

 

After completing the analysis for each criminal offense individually, consider whether the different offenses or convictions, taken together, trigger deportation or inadmissibility, and, if so, whether there exists some form of relief for the client in immigration court. 

 

                (1)  Deportation.  The only ground of deportation that depends on or requires multiple convictions is the multiple crimes of moral turpitude ground, which triggers deportation regardless of timing or sentence, as long as they are not part of a single scheme of criminal misconduct.  See § § 20.38-20.41, infra.[29]  In addition, the controlled substances conviction ground of deportation has an exception for a single offense of possession for one’s own use of 30 grams or less of marijuana.[30]  A second controlled substances offense disqualifies the noncitizen from eligibility for this exception to the deportation ground.  See § 21.35, infra.

                (2)  Inadmissibility.  Multiple convictions regardless of the type of conviction will trigger inadmissibility if a total sentence of five years or more is imposed as a result of those convictions.  See § 18.5, infra.[31]  The crime of moral turpitude ground of inadmissibility[32] has two exceptions that each depend upon committing only one CMT conviction: the Petty Offense Exception[33] and the Youthful Offender Exception. [34]  If the person has committed a second CMT, s/he is disqualified from eligibility for both of these exceptions to this ground of inadmissibility.

 

                (3)  Relief in Immigration Court.  Several forms of relief depend on multiple convictions or offenses.  For example, the stop-time rule for cancellation of removal is triggered by the commission of a listed offense, so cancellation may not be not available for a second or subsequent offense or conviction.[35]  A noncitizen cannot obtain a waiver of inadmissibility under INA § 212(h) for a conviction of possession of 30 grams or less of marijuana if s/he has committed more than one offense, since the waiver is available only for a single offense.[36]  A noncitizen is ineligible for a waiver of deportation or inadmissibility under former INA § 212(c) if s/he has been incarcerated for a total of five years or more for one or more aggravated felony convictions. [37]  Two misdemeanor convictions will bar a noncitizen from eligibility for Temporary Protected Status. [38]  Three misdemeanor convictions will bar a noncitizen from eligibility for amnesty under the Legalization Programs. [39]  A noncitizen is barred from showing Good Moral Character, if s/he has been confined, in a penal institution, for a total of 180 actual days or more as a result of one or more criminal convictions. [40]  Finally, since criminal conduct can be considered as a negative factor in any discretionary decisionmaking process, the longer the record of criminal offenses, the smaller the chance of in fact obtaining a grant of discretionary relief in immigration court, even if the noncitizen is not disqualified by criminal history from eligibility to apply for relief.

[29] INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii).

[30] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227 (a)(2)(B)(i).  See § 21.13, infra.

[31] INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).

[32] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).  See § § 20.25-20.27, infra.

[33] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II).  See § 20.29, infra.

[34] INA § 212(a)(2)(A)(ii)(I), 8 U.S.C. § 1182(a)(2)(A)(ii)(I).  See § 20.30, infra.

[35] See § 24.6, infra.

[36] INA § 212(h), 8 U.S.C. § 1182(h).  See § § 24.29, 21.35, infra.

[37] See § 24.28, infra.

[38]  See § 24.25, infra. 

[39]  See § § 24.9-24.11, infra. 

[40] INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).  See § 15.6, infra.