Criminal Defense of Immigrants

Chapter

§ 17.1 I. Summary for Criminal Defense Attorneys

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The grounds of deportation apply only to those noncitizens who have been “admitted”[1] to the United States after having been inspected at an official point of entry into the United States. People who were admitted into the United States with valid visas, but then did something to overstay or invalidate those visas, are still subject to the grounds of deportability until they leave the United States. Undocumented immigrants, who entered without having been admitted, are subject to the grounds of inadmissibility, not deportability, even if they have been in the United States for many years and have never left.[2]

A person who has been admitted to the United States may later become inadmissible if s/he leave the country and attempts to return. A noncitizen “admitted” to the United States may also be considered deportable because s/he was inadmissible at that time, and therefore the admission was improper.[3]

For these reasons, criminal defense counsel should consider whether a criminal conviction could render their client inadmissible, as well as deportable.

While some crime-related grounds of deportation are triggered by a conviction,[4] others are triggered by conduct.[5] In many cases, however, a carefully constructed criminal disposition may be able to avoid some of these conduct-based grounds.

By far the most devastating ground of deportation is the “aggravated felony.” The term “aggravated felony” refers to a group of criminal offenses Congress has chosen to receive special treatment under the immigration law of the United States.[6] Any offense that falls within this group is an aggravated felony, regardless of the date of commission or conviction.[7] Conviction of an aggravated felony means virtually mandatory deportation, and once deported the noncitizen will never be able to return to the United States to live. This ground of deportation is discussed in Chapter 18, infra.[8]

With few exceptions, conviction for violation of any law related to a controlled substance will render a noncitizen deportable.[9] In most cases, controlled substances offenses are also aggravated felonies[10] and crimes of moral turpitude. In many cases, no relief will be available to avoid removal on the basis of a controlled substances offense.[11]

Conviction of single crime of moral turpitude,[12] committed within five years of admission, where the offense is punishable by at least one year imprisonment, is deportable.[13] Conviction of two crimes of moral turpitude after admission, regardless of date or sentence, is deportable.[14]

Certain firearms[15] and domestic violence convictions[16] (and a court finding of violation of certain domestic violence protection orders[17]), are also criminal grounds of deportation. A conviction of failure to register as a sex offender also triggers deportation.[18]

Generally, the DHS bears the burden of proving, by clear and convincing evidence, that the noncitizen is subject to a ground of deportation.[19] The burden of showing whether a noncitizen has been convicted of an aggravated felony may shift if the noncitizen is applying for a form of relief from removal that is barred to aggravated felons.[20] In any case, if the client is or may be subject to the grounds of inadmissibility, whether because of travel or application for adjustment of status, criminal defense counsel may additionally need to avoid a criminal disposition that triggers inadmissibility. See § 18.6, infra.

[1] INA § 101(a)(13), 8 U.S.C. § 1101(a)(13). See § 17.5, infra.

[2] See Chapter 18, infra.

[3] INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).

[4] See § § 17.3-17.22, infra.

[5] See § § 17.23-17.29, infra.

[6] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43). See Appendix B for an alphabetical listing.

[7] See § 19.21, infra.

[8] See also N. Tooby & J. Rollin, Aggravated Felonies (2006).

[9] See § 20.13, infra.

[10] See § § 19.55-19.63, infra.

[11] See § 20.16, infra.

[12] See § § 20.2-20.24, infra.