Criminal Defense of Immigrants

Vacating the conviction will not prevent adverse immigration consequences that do not depend on a conviction, but rather, depend on the commission of an act (e.g., prostitution, drug trafficking, addiction, and abuse).[279]

The client can suffer immigration penalties for some acts even if there is no criminal conviction.  A person may be excluded if an INS officer has “reason to believe” the person has been a drug trafficker, or if s/he “has engaged in” prostitution.[280]  Drug addiction and drug abuse are also grounds for deportation and exclusion.[281]  Even successful elimination of the conviction will not necessarily resolve these problems if the INS has independent evidence of these “facts” since they do not depend upon the existence of a formal conviction.

Even vacating one of two moral turpitude convictions will not make the noncitizen eligible for the petty offense exception to the moral turpitude exclusion ground; to be eligible, the person must have committed only one such offense. [282]  It would be necessary to vacate both convictions, since the petty offense exception would not serve to eliminate one.

Further, a person who admits all the elements of a drug offense or crime involving moral turpitude is excludable, even though the person receives no actual criminal conviction in criminal court.[283]  However, if the incident is disposed of by the court in some manner (e.g., vacating of the plea and substitution with a harmless new conviction, or dismissal), it is possible that the DHS will not go behind the dismissal at all to hold the underlying conduct against the noncitizen.

PRACTICE TIP.  In dealing with the DHS and in pursuing post‑conviction remedies, do not allow the client to make an admission or provide other new evidence of any offense involving drugs or prostitution.  For example, the defendant may make a declaration to establish equities, describing the facts of her previous life and how she has changed for the better.  In doing so, it is important for the defendant to avoid any admission of sale, addiction or abuse of drugs, or of engaging in prostitution.

[279] See § § 17.23, 18.16, infra.

[280] See § 21.6, infra.

[281] See § § 21.10, 21.15, infra.

[282] See § 20.29, infra.

[283] INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II).  See § 18.8, infra.