Immigration Consequences of Criminal Offenses

Unit 2: Immigration Consequences of Criminal Adjudications

Possible Immigration Consequences of a Criminal Conviction in Texas

DEPORTATION: Forcible removal from the United States and the imposition of a legal bar from returning to the US for a certain period of time (INA §237(a) [8 USC 1227 (a)]).

INADMISSABILITY: Denial of re-entry to the United States attempting to return to the US from abroad (INA §212(a) [8 USC 1182]).

DETENTION: Detention in federal custody pending a deportation hearing (INA §236 [8 USC 1226]).

Possible Immigration Consequences of a Criminal Conviction in Texas

While any or all of the three consequences noted on the slide before can flow from criminal activity by a client who is a non-citizen, perhaps the consequence that most concerns criminal defense lawyers is deportation.

Most crime-related deportation grounds requires a “conviction” to trigger a basis for deportation, raising the question:

Possible Immigration Consequences of a Criminal Conviction in Texas

WHAT CONSTITUTES A “CONVICTION” FOR

IMMIGRATION PURPOSES?

What is a “Conviction” for Immigration Purposes?

Under the INA, a conviction exists where there has been a formal adjudication of guilt entered by a court or if adjudication has been deferred, where all of the following elements are present:

What is a “Conviction” for Immigration Purposes?

(1) A judge or jury has found the alien guilty, or the person entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and

What is a “Conviction” for Immigration Purposes?

(2) The judge has ordered some form of punishment, penalty or restraint on the person’s liberty to be imposed.

INA § 101(a)(48)(A).

What is a “Conviction” for Immigration Purposes?

JUDGEMENT OF GUILT – PLEA OR VERDICT (INCLUDING PLEA OF NOLO

CONTENDERE):

YES INA § 101(a)(48) [8 U.S.C 1101(a)(48)

What is a “Conviction” for Immigration Purposes?

JUDGEMENT OF GUILT – APPEAL PENDING:

NO Matter of Devison, 22 I&N Dec. 1362 (BIA 2000)

What is a “Conviction” for Immigration Purposes?

DEFERRED ADJUDICATION WITH PENALTY:

YES Matter of Punu, 22 I&A Dec. 224 (BIA 1998)

What is a “Conviction” for Immigration Purposes?

DEFERRED ADJUDICATION WITH NO PENALTY IMPOSED:

NOProvided the court does not order some form of punishment. Payment of court costs would not be

considered punishment. See Mary E. Kramer, Immigration Consequences of Criminal Activity, A guide to Representing Foreign-Born Defendants, 2nd Edition, American Immigration Lawyers

Association (2005), at 47.

What is a “Conviction” for Immigration Purposes?

DISMISSAL

NO

What is a “Conviction” for Immigration Purposes?

PRETRIAL DIVERSION (AKA “DEFERRED PROSECUTION” or “PLEA IN ABEYANCE”:

NOPretrial diversion is not a conviction for immigration purposes as long

as the process of securing pretrial diversion does not satisfy both prongs of the definition of conviction set forth in INA § 101(a)(48)(i)

and (ii), [8 U.S.C. 1101(a)(48)(i) and (ii)]

What is a “Conviction” for Immigration Purposes?

ADMISSIONS TO THE PROSECUTOR:

NO See Mary E. Kramer, Immigration Consequences of Criminal Activity, A guide

to Representing Foreign-Born Defendants, 2nd Edition, American Immigration Lawyers Association (2005), at 48.

What is a “Conviction” for Immigration Purposes?

EXPUNCTION AND RECORD SEALING:

YESMatter of Roldan, 22 I&N Dec. 224 (BIA 1999)

What is a “Conviction” for Immigration Purposes?

VACATION OF A CONVICTION (ON THE MERITS):

NOMatter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000)

What is a “Conviction” for Immigration Purposes?

VACATION SOLELY RELATED TO IMMIGRATION:

YESU.S. v. Reyes,945 F.2d 862 (5th Cir 1991)

What is a “Conviction” for Immigration Purposes?

JUVENILE DELINQUENCY DISPOSITION:

NOMatter of Devison, 22 I&N Dec. 1362 (BIA 2000)

What is a “Conviction” for Immigration Purposes?

SUSPENSION OF SENTENCE:

YESINA 101(a)(48)(B) [8 USC 1101(a)(48)(B)]

Damage Control

Avoid Identification as Immigrant Subject to Detainer– Post bail as quickly as possible– Avoid a sentence to jail– Avoid final conviction if this is the only ground for

deportation (except 1st, 5th, 7th Circuits may consider convictions on direct appeal final)

– Avoid disclosure of nationality, immigration status or place of birth, especially during DHS interviews in jail or prison

Damage Control

DHS Interviews in Jails & Prisons: Advise Clients of Dos and Don’ts– Don’t say anything.– Don’t sign anything.– Don’t lie.– If you feel that you have to say something,

only say, “I want to talk to my lawyer.”

Use the Quick Reference Chart

Quick Reference Chart for Immigration Consequences:– Look up offense by code section– Look to Chart to identify immigration

consequences– Avoid Aggravated Felonies, Crimes Relating to

Controlled Substances, Crimes Involving Moral Turpitude, and Crimes Involving Domestic Violence, Child Abuse, Fraud, Firearms, Etc.

Resource Links – Where to Go for Help

National Legal Aid & Defender Association– www.nlada.org

Defending Immigrants Partnership– www.defendingimmigrants.org

NLG National Immigrants Project– www.nationalimmigrationproject.org

NYSDA Immigrant Defense Project– www.immigrantdefenseproject.org

ILGC– www.ilrc.org