Many people apply for immigration benefits on their own. The forms look easy to them. They complete their paperwork, sign their applications, and assume everything will go smoothly.
Unfortunately, they sometimes hit an unexpected roadblock.
A criminal conviction, relatively minor, perhaps several years old, stands in their way of becoming or remaining a lawful permanent resident.
Table Of Contents
- What Is Crimmigration Law?
- The Battle Against Excessive Deportation Consequences Of Criminal Convictions
- What Convictions Are Aggravated Felonies?
- Crimmigration Defense: Why You Should Have Convictions Analyzed Before Filing Any Immigration Papers
- Old Convictions And Immigration Problems
- Small Convictions Can Lead To Automatic Deportation
- What Are Crimes Of Moral Turpitude?
- Three Ways To Help Immigrants With Crimmigration Problems
Crimmigration is the convergence of two distinct areas of law: criminal defense and immigration law.
Over the past three decades, CrImmigration Law, or as it is often called, CrIimmigration Defense Law, has emerged as one of the important and specialized areas of deportation and removal defense.
It is the response to Congressional efforts to limit due process and the opportunities for immigrants to become, or to remain, lawful permanent residents.
As a result of changes to immigrant law in the 1990s, more and more criminal convictions have been classified as immigration felonies, that is, “aggravated felonies,” which prohibit immigrants from any relief against deportation.
For immigrants, this caused an increasing need for criminal defense protection. .
The consequences of an immigrant’s criminal activity now go far beyond just time served in local, state, and federal jails. Rather, punishment carries the potential for permanent expulsion from the United States.
Because many criminal law attorneys do not grasp or appreciate the differences between representing immigrants and citizens, immigrants facing criminal charges must insist on seeking crimmigration lawyers, not merely criminal defense attorneys.
Many immigrants are shocked when a minor crime committed 5, 10, or even 20 years ago becomes a nightmare.
Under current law, old convictions, which clients might have forgotten, can destroy an immigration application at any phase – getting a green card, renewing a green card, becoming a citizen, or fighting deportation in court.
If you have a criminal record, you should seek legal advice immediately. Even the smaller convictions for crimes like shoplifting, drunk driving, and petty theft could cause you to lose your green card.
Some convictions lead to almost automatic loss of your green card. These are known as “Aggravated Felonies.”
Other criminal convictions lead to good moral character problems. These are called “Crimes of Moral Turpitude.”
These types of convictions can also cause deportation in many cases.
The most common types of aggravated felonies under immigration law are the following types of offenses:
- Drug Crimes
- Sex Crimes
- Violence Crimes
- Domestic Violence
- Firearms Offenses
- Fraud-Related Offense
Crimmigration Defense: Why You Should Have Convictions Analyzed Before Filing Any Immigration Papers
Before filing papers, you should have all prior arrests and convictions analyzed by an immigration defense attorney. Once they are analyzed, you may need to take steps to reduce the negative effects of convictions and protect your immigration status.
Police officers chased some youths who had committed some mischief. The boys ran through Tom’s yard and jumped over the back fence. Hearing the noise, Tom went outside. Noticing the officers were breathing heavily, he invited them inside for water and orange juice.
Tom, 45 years old, was a minister of a local church and active in community affairs. He worked with teenagers, encouraging them to stay away from crime and drugs. Tom was well-liked by his neighbors and congregation.
When the officers went back to their car, they called in everyone’s name. They even ran a background check on Tom. A short while later, they asked Tom to come over to their vehicle. To Tom’s surprise, they arrested him. They transferred him over to immigration authorities.
It turned out Tom had been arrested and convicted of a crime 25 years earlier. After that incident, Tom had reformed and led an exemplary life. When he had renewed his green card, he did not have any problems due to his arrest.
However, in recent years, immigration law had increased the list of crimes which make a person automatically deportable. Tom’s old crime was now on that list.
Analyzing the effect of convictions on immigration records is complex. This is not something clients should try doing on their own.
Even a small conviction can become an immigration deal-breaker.
For instance, maybe you only spent two days in jail, paid a $200 fine, and were given informal probation by the state court judge. The District Attorney said your offense was a misdemeanor, a small crime. Yet, when you tried to went to your green card interview, he government said your offense was an aggravated felony.
That makes no sense to you. How does a small misdemeanor become an immigration felony?
If your conviction fits into one of the six aggravated felony categories listed above, even if it is a small conviction, it is an aggravated felony in immigration law.
And that means automatic deportation.
Immigrant Detention Bed Quota
As if the imposition of stiff regulations for aggravated felony non-violent convictions and harsh rules for good moral character offenses, current U.S. deportation policy supports an unofficial detention bed quota.
Congress has set a bed quota that requires U.S. Immigration and Customs Enforcement (ICE) to house an average of 34,000 individuals in detention on a daily basis.
62% of these immigrants are detained in private, for-profit detention centers, casting more doubt on the fairness of the immigration detention and deportation sysem.
Although the national bed quota was removed, local quotas remain written into detention contracts with private prison corporations.
Crimes involving moral turpitude (CIMTs) can also destroy an immigrant’s right to live and work legally in the U.S.
In general, CIMTs are defined as crimes which show an evil mental intent or a depraved human nature. Some courts have said CIMTs are actions taken with a criminal heart.
It’s easier, in my view, to understand them as acts which demonstrate “bad moral character.”
Not all criminal convictions which show bad judgment are acts of “moral turpitude.” But trying to defend yourself in such cases is not a good idea.
Here are the types of offenses sometimes deemed CIMTs:
- Crimes against another person
- Sexual offenses
- Crimes against another’s property
- Crimes involving fraud
- Crimes against the government
- Violations of regulatory laws (like gambling and drunk driving)
If you’re a lawful permanent resident, you’ll need to prove, even though you did not pay your taxes or you were arrested for drunk driving, your offenses are not CIMTs – and other reasons why you still deserve to keep your green card.
As your crimmigration defense lawyer, we can help you three different ways. First, during your criminal case. Second, at immigration court hearings. Third, in immigration appeals.
Criminal Court Hearings and Plea Bargains
If you are facing criminal charges right now, immigration attorney Carlos Batara can work with you and your criminal defense attorney before you enter a plea – whether you live in Riverside, Hemet, San Bernardino, San Diego, Escondido – or anywhere in California or Arizona.
We can help you and your criminal defense attorney understand how criminal charges against you might affect your immigration status.
We can provide suggestions and action steps about how to reduce the possibility of deportation after your criminal case ends. We can help put together a strategy to protect your immigration status.
If your conviction happened several years ago, thanks to Supreme Court decisions, we help evaluate and perhaps utilize the possibility of post-conviction relief measures, like motions to vacate. We can review whether efforts to expundge old sentences may serve to protect you at immigration court.
Of course, winning motions to vacate is not guaranteed, and some courts are rigid in granting such relief. Further, the Board of Immigration Appeals has greatly reduced the advantages of motions to expundge in various rulings.
In recent years, the potential to help immigrants obtain a governor pardon excusing your past offense is another assessment that should be undertaken in your case.
Deferred Entry Of Judgment Programs
Another partial remedy for overbroad immigration criminal conviction rules is the effort by state legislators to modify their criminal codes. California Assembly Bill 1352 is one example.
At its core, AB 1352 is about immigrant family unity. By providing immigrants facing drug convictions a second chance, the legislation seeks to keep immigrants with their families and in their communities.
The legislation is aimed at offsetting unintended consequences for immigrants who complete Deferred Entry of Judgment (DEJ) programs – alternatives to court proceedings that allow offenders to participate in drug rehabilitation treatments.
For current offenses, SB 1352 gives defendants the opportunity to opt for treatment before pleading guilty. If they successfully complete their treatment timely, their cases can be dismissed. Without the conviction on their record, they would be shielded from deportation charges.
Prior to SB 1352, individuals charged with low-level drug possession and narcotics convictions were able to plead guilty and undergo drug counseling. Once a defendant finishes the treatment, the charges were wiped away. However, under immigration law, the convictions still stand and often lead to deportation and broken families.
Thus, SB 1352 now gives defendants the opportunity to opt for treatment before pleading guilty.
The bill provides help to immigrants who have been removed based on DEJ convictions to attempt to reopen their cases at immigration court.
SB 1352 also assists anyone convicted under State Law in California who was granted Deferred Entry of Judgment for minor drug offenses on or after January 1, 1997, who completed their treatment program and had their charges dismissed. These immigrants are now able to withdraw their plea based on the fact that they were misinformed about the immigration consequences of the plea.
The second chance option is not available for people with a history of drug sales or any violent or other serious felony. Only first-time offenders are eligible.
Immigration Court Deportation Defense
We will serve as your deportation defense attorney. After you are convicted in criminal court, you could be forced to go to immigration court. When this happens, the U. S. government will seek to deport you because of your conviction.
Our job is to seek full discovery of materials in the government’s possession. By obtaining these materials, we can better help you fight deportation from the United States.
Perhaps you’ve already went to immigration court. If the judge has ordered you to be deported due to your past offense, we may be able to help you fight back. We may be able to help you challenge the judge’s decision, by using our immigration appeals experience.
Your past conviction does not always have to lead to automatic deportation. Immigration judges make mistakes. The law is not always clear. If you want to fight back, we will represent you in your appeal. We will challenge the immigration judge’s view of your conviction.
Ready to take a serious and honest look at the strengths and weaknesses of your immigration case? Let’s get started with a personalized strategy and planning consultation . . .