Deportation Defense: The Battle To Distinguish Major And Minor Criminal Convictions

As a San Diego immigration lawyer, I have seen how criminal convictions can shatter the dreams and hopes of immigrant families.

Many times the criminal offenses were minor. Under state law, they were classified as misdemeanors. Yet, under immigration law, these convictions are considered immigration felonies. The term used by immigration courts is “aggravated felonies”.

Fighting The Immigration Consequences Of Criminal Convictions

There are two large problems with fighting criminal convictions at immigration trials.

One, Congress stripped away a provision allowing lawful permanent residents to show proof of rehabilitation. This rule was based on a belief that no one is morally perfect. Second chances were possible. Not any longer.

Two, Congress tightened the noose on particular offenses. Various crimes were turned into aggravated felonies. Aggravated felonies, in essence, is a code word for automatic deportations.

At immigration court hearings, judges cannot weigh whether specific crimes are major or minor. They have no discretion to determine if an immigrant, despite the wrong action, should be allowed to remain in the U.S.

As a result, deportation defense involving immigrants with criminal records has become more difficult over the past 10 years. In many cases, successful fights requires filing immigration appeals.

Distinguishing Criminal Convictions In Immmigration Court

Last week, the highest court in the country, the U.S. Supreme Court, took a long look at these issues.

In one case, Padilla v. Kentucky, Justice Stevens noted, “The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes.” The Court ruled that given this situation, before immigrants plead guilty, criminal defense attorneys need to inform them about the high risk of deportation.

In the second case, Carachuri-Rosendo v. Holder, the Court did not make a decision. But Justice Ginsburg called the result, deportation related to two misdemeanor convictions, absurd. The first conviction was for possession of less than ounces of marijuana. The second was a conviction for possession of an anti-anxiety drug, Xanax, less than a year after the first conviction.

Within the next few weeks, the Supreme Court will make a decision in the second case. This decision will have a major impact on the cases of many, many immigrants.

A former federal judge, H. Lee Sarokin, chipped in:

“Many of these persons facing deportation have lived in this country for years, for many — virtually their entire lives. They have substantial ties to the community. Deportation for them is often more severe than any prison term.”

A Fairer Solution For Immigrants And Their Families

Having served as an immigration lawyer in Southern California for almost two decades, I have helped immigrants who cannot understand how a minor offense 40 years ago can be more important than all the good they have done since that mistake.

Judge Sarokin knows the solution:

“We must distinguish between the criminal and the minor offender…”

I agree with Judge Sarokin.

Hopefully, the Supreme Court will begin the process of separating major from minor crimes. This would allow those who have committed minor offenses a chance to prove at their immigration deportation hearings they deserve to remain here.

Isn’t this a fairer way to treat immigrants?

By Carlos Batara