The Problem of Deportation for Crimes

 

The Problem
Nearly 40 million U.S. residents were born in foreign nations.  About 12 million of them have no legal status, and the rest have lawful immigration status.  They commit crimes less than half as often as the average U.S.-born citizen. Their crimes are also somewhat less serious, on average, than the crimes of U.S.-born adult men, who are incarcerated at a rate more than 2 1/2 times greater than that of foreign-born men.[1]

 

Nonetheless, the federal government has greatly escalated the rate at which immigrants are deported in general, and on the basis of criminal conduct and cases in particular.  In 2001, the government removed 71,597 criminals, an increase of more than 36 times the number of removals of immigrants on criminal grounds in 1986.[2]  In 2005, the number of immigrants deported for crimina1 convictions grew to nearly 90,000 a year.[3]  Removals have continued to increase, resulting in a major industry, with expanded enforcement agencies, bureaucracies, special immigration court systems, and concentration camps holding many thousands in mandatory immigration detention without possibility of bond.[4]

 

During the criminal process, court and counsel inform the criminal defendant of the direct penal consequences of the case.  If the defendant is not a U.S. citizen, however, they are far less successful in informing defendants of the indirect, but often inexorable, collateral immigration disaster triggered by a conviction.  Criminal defense counsel are, however, becoming increasingly aware of the need to protect their clients against immigration consequences.

 

Unless they are informed by detailed knowledge of the exact immigration consequences of the case, and how to avoid them, however, counsel's efforts are often insufficient to provide any real protection, and many noncitizen defendants are still blindsided by later immigration detention and deportation that could have been avoided.  It is not enough to identify the problem; the best interests of the client require the criminal lawyer to attempt to prevent it.  Close consultation between criminal and immigration counsel is necessary to prevent unnecessary immigration disasters from blighting the lives of our clients.  Counsel must precisely analyze the exact immigration threat, create an antidote tailored to the specific problem, and attempt to obtain that disposition of the criminal case.

 

 

Grounds of Deportation
After a foreign national has lawfully been admitted into the United States, if the immigration authorities wish to remove that person, it is called “deportation.”  Grounds of deportation are triggered by three different types of event:

• A conviction in a criminal case, see N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 2.7 (2005)(hereinafter “Safe Havens”);

• Specified behavior or “conduct”, see Safe Havens § 2.9; or

• Certain findings of a court or administrative agency, see Safe Havens § 2.11.

 

For a checklist of the 52 different grounds of deportation, see Safe Havens, Appendix A, Grounds of Deportation Checklist.

 

 

Avoiding Deportation
There are three ways of avoiding deportation for crimes:

1. Avoiding a deportable conviction in criminal court in the first place;
2. Reentering criminal court, after receiving a deportable conviction, and eliminating the conviction by obtaining post-conviction relief, and thereafter avoiding a new deportable conviction; or
3. Obtaining some form of relief from deportation in immigration court.

Congress has been restricting the power of immigration judges to grant relief from deportation in immigration court.  It is therefore becoming increasingly important for immigrants to avoid deportable convictions in the first place, or to revisit the criminal courts to erase them later.

This office can assist immigrants who are charged with, or have been convicted of, an aggravated felony in several ways:

 

Information. 

We provide the most extensive collection of information on what is and is not an aggravated felony in the world, in our newsletters, practice manuals, website, and seminars.

 

Consultation. 

We can offer a consultation, and examine the records from the criminal court, to give a reliable opinion on whether a given conviction is or is not an aggravated felony.  We can also offer arguments that an immigration lawyer can use in immigration procedures to argue that the conviction does not qualify as an aggravated felony.

 

Elimination of the Conviction. 

If a conviction is causing damage as an aggravated felony, we can seek post-conviction relief anywhere in the country to reopen the criminal case, vacate the aggravated felony conviction, and obtain a dismissal or alternative plea bargain that does not cause these damaging immigration consequences. Learn more about our Legal Services.

 

 

 

Resources

 

Ample resources exist to assist criminal defense counsel in obtaining answers to the immigration questions that arise during the course of representing noncitizens. 

 

National Resources:

The National Immigration Project of the National Lawyers Guild  is a valuable resource.  Headed by Dan Kesselbrenner, co-author of Immigration Law and Crimes,[5] it is a clearinghouse on recent developments and litigation in immigration law and criminal issues, and sometimes organizes amicus briefing in significant cases.

 

Many local Bar Associations have lists of immigration attorneys, and a local chapter of the National Lawyers Guild or American Immigration Lawyers Association (AILA) will often be able to help.  The Washington, D.C., AILA office (918 F Street, N.W., Washington, D.C. 20004, (202) 216-2400) will provide the name of a local AILA representative or, for a fee, their membership directory.[6]

 

(1)  Aggravated Felony Convictions.  By far the most devastating ground of deportation is the “aggravated felony.”  The term “aggravated felony” refers to a group of about 40 criminal offenses Congress has chosen to receive especially harsh immigration treatment.[7]  Any conviction that falls within this group is an aggravated felony, regardless of the date of commission or conviction.[8]  If it fits the definition, it constitutes an aggravated felony even if it is a misdemeanor.[9]  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.  A comprehensive definition of this term is contained in a 1000-page practice manual.  N. Tooby & J. Rollin, Aggravated Felonies (2006).  About half of this group are aggravated felonies only if a sentence of one year or more has been imposed (regardless whether it is suspended).  The other half are aggravated felonies, regardless of sentence.  Therefore, one of the most important things criminal counsel can do – in those cases where sentence matters – is to obtain a sentence less than one year.  See § 4.4(E)(3).

 

(2)  Controlled Substances Convictions.  With few exceptions, conviction for violation of any law related to a controlled substance will also render a noncitizen deportable.[10]  In most cases, controlled substances offenses are also aggravated felonies[11] and crimes of moral turpitude.  In many cases, no relief will be available to avoid removal on the basis of a controlled substances offense.[12]

 

(3)  Convictions of Crime(s) of Moral Turpitude.  Conviction of single crime of moral turpitude,[13] committed within five years of admission, where the offense is punishable by at least one year imprisonment, is deportable.[14]  Conviction of two crimes of moral turpitude after admission, regardless of date or sentence, is deportable.[15]  This phrase is not defined by statute, and the immigration authorities have therefore taken a common-law, case by case, approach to defining this vague term.  See N. Tooby, J. Rollin, & J. Foster, Crimes of Moral Turpitude (2008).

 

(4)  Firearms Convictions.  Certain firearms[16] convictions also trigger deportation, but not inadmissibility.

 

(5)  Domestic Violence Convictions and TRO Violations.  Certain domestic violence convictions[17] (and a court finding of violation of certain domestic violence protection orders),[18] are also criminal grounds of deportation.

 

(6)  Other Grounds of Deportation.  There are a total of 52 different grounds of deportation.  These are discussed, and ways to construct non-deportable convictions are suggested, in N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005).  The most recent legislation provides that a federal conviction of failure to register as a sex offender triggers deportation.[19] 

 

 

State Resources

Resources (both live and written) specific to individual states include:  

 

California
The Immigrant Legal Resource Center, in San Francisco, California is a non-profit organization that provides advice, training and materials to non-profit community agencies and immigrants’ organizations.  For a modest fee, the Immigrant Legal Resource Center lawyers will provide criminal defense counsel with an expert consultation through their Attorney of the Day Consultation (AOD) about immigration consequences of a criminal conviction. 

 

California has a wealth of written resources:

 

K. Brady, N. Tooby & M. Mehr, Defending Immigrants in the Ninth Circuit (Immigrant Legal Resource Center 2007), distributed by the ILRC, 1663 Mission Street, Suite 602, San Francisco, CA 94103, (415) 255-9499.

 

K. Brady, D. Keener, & N. Tooby, Representing the Noncitizen Criminal Defendant, Chap. 52 in California Continuing Education of the Bar, California Criminal Law: Procedure And Practice.

 

N. Tooby, California Post-Conviction Relief for Immigrants (2002).

 

N. Tooby, Expungement Of California Criminal Convictions For Immigration Purposes (2002). 

 

Minnesota
M. Baldini-Potermin, Defending Non-Citizens In Minnesota Courts (1998), distributed by the Minnesota Bar Ass’n, (612) 333-1183. 

 

New York
The Immigrant Defense Project (IDP) of the New York State Defenders Association works to defend the legal, constitutional and human rights of immigrants facing criminal or deportation charges. IDP seeks to (1) minimize deportation and detention under current immigration laws for immigrants facing criminal charges or subsequent deportation, and (2) change the current system so that it does not result in the exile of immigrants from their homes and families in the United States. The Project serves as a legal resource for attorneys, advocates, and immigrants. It also promotes impact litigation by recruiting and mentoring pro bono attorneys and, it promotes community-based advocacy against unjust immigration laws.

 

IDP has a number of legal resources available on its website. IDP has practice materials for criminal defense attorneys and immigration attorneys, including a Removal Defense Checklist and reference charts that list common criminal offenses and whether they might trigger a ground of removability.  IDP also has pro se materials including “Know Your Rights” charts and guides to help unrepresented individuals understand the criminal justice and deportation systems. In addition, IDP’s webpage provides information about its litigation efforts, including its involvement as amicus curiae before the courts of appeals and Supreme Court.

 

M. Vargas, Representing Noncitizen Criminal Defendants In New York State (NY State Defender’s Association, Criminal Defense Immigration Project). 

 

Texas

Lynn Coyle, Barbara Hines, and Lee Teran have written a manual entitled Basics of Immigration Law for Texas Criminal Defense Attorneys (Tex. Crim. Defense Lawyers Ass'n 2003), available at (512) 478-2514. 

 

Washington State

Ann Benson is Directing Attorney of the Washington Defenders Immigration Project

 

Ann Benson & Jonathan Moore, Immigration and Washington State Criminal law (Washington Defender Association’s Immigration Project, 2005).

 

 

 

[1] Kristin Butcher and Anne Piehl, Crime, Corrections, and California: What Does Immigration Have to Do with It?, 9 California Counts: Population Trends and Profiles, No. 3 (Feb. 2008).
[2] U.S. Bureau of Citizen and Immigration Services “Enforcement, Fiscal Year 2001,” 2001 Statistical Yearbook of the Immigration and Naturalization Service. [Last updated April 14, 2003, retrieved on April 23, 2003.] Available from http://www.immigration.gov/graphics/shared/aboutus/statistics/ENF2001.pdf, p. 7.
[3] See DHS, Immigration Enforcement Actions: 2005, http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2005/Enforcement_... (last visited May 25, 2007).
[4] See D. Kanstroom, Deportation Nation (Harvard Univ. Press 2007).
[5] D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (Nat’l Lawyers Guild, Nat’l Imm. Project, West Group).
[6] AILA also provides a referral service (fees not to exceed $100.00 per consultation) by calling 1-800-954-0254, or sending and email to ilrs@aila.org.  You will need to provide your name, location and describe your need for an immigration lawyer.
[7] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).  See Criminal Defense of Immigrants Appendix B for an alphabetical listing.
[8] See Criminal Defense of Immigrants § 19.21.
[9] The only exception is that a crime of violence aggravated felony, under 18 U.S.C. § 16(b), must be a felony to be an aggravated felony.  INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).  See Criminal Defense of Immigrants § 4.4(E)(7).
[10] See Criminal Defense of Immigrants § 20.13.
[11] See Criminal Defense of Immigrants §§ 19.55-19.63.
[12] See Criminal Defense of Immigrants § 20.16.
[13] See Criminal Defense of Immigrants §§ 20.2-20.24.
[14] See Criminal Defense of Immigrants §§ 20.32-20.37.
[15] See Criminal Defense of Immigrants §§ 20.38-20.41.
[16] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).  See Criminal Defense of Immigrants §§ 23.8, et seq.
[17] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).  See Criminal Defense of Immigrants §§ 22.9, et seq.
[18] INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).  See Criminal Defense of Immigrants §§ 22.33, et seq.
[19] See Criminal Defense of Immigrants § 17.19.