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Immigration & CRIMINAL LAW

Know the facts.

Ever since 9/11, the United States has passed a number of Immigration rulings that have changed the practice of criminal law dramatically. From what it appears, the Immigration and Naturalization Department are much more vigilant in finding reasons to deport non-citizens, including those who already have Green Cards. Immigrants with criminal convictions have now become one of the primary concerns of the Department of Justice and U.S. Immigration and Customs Enforcement (or ICE). There are new programs that have been implemented which directly focus on the removal and deportation of non-citizens with criminal convictions - even when they are now outside of the jail and prison systems.

Their priority is to deport those who have been convicted of: (1) crimes of violence; (2) aggravated felonies and (3) other crimes rendering an alien deportable such as crimes involving moral turpitude.

Any person who is not already a citizen of the United States, including lawful permanent residents (those with Green Cards), can be deported because of certain criminal convictions.

Lawful permanent residents are designated as immigrants/non-citizens who have been granted permission by the United States government to live and work in the United States for a short period of time or even an indefinite period of time.

Before a person can become a US citizen, they must first become a lawful permanent resident. It does not matter how long they may have been living in the US before seeking citizenship, if they are not a legal permanent resident, they cannot become a citizen without going back to their country and making the application.

On the other hand, it does not stop ICE from starting the process to permanently remove that person from the United States. There are a number of criteria that can lead to deportation.

The Immigration and Nationality Act specifies three basic categories of crimes that can lead to the possible deportation of a non-citizen or prevent a non-citizen from becoming a lawful permanent resident or eventually a U.S. citizen.

Crimes of Violence

A "crime of violence" is a term vaguely defined by the United States Code and could include convictions for assault in almost any degree and even for felony driving under the influence in many instances.

Aggravated Felonies

Aggravated felonies, which consist of crimes that involve weapons, injuries or potential for injuries are the most serious crimes and are specifically defined by statute in the Immigration and Nationality Act. Even some Misdemeanors can be considered as Aggravated Felonies when certain sentences are imposed by a state criminal court.

Those common misdemeanor crimes can be considered aggravated felonies for immigration purposes. Those include crimes of theft and crimes of violence. For either of those crimes any non-citizen can be scheduled for a deportation proceeding and can be deported from the United States, if the person is sentenced to more than one-year imprisonment, which is calculated to include any suspended time on the jail sentence.

Crimes of Moral Turpitude

Crimes of moral turpitude can have a negative impact on any non-citizen’s ability to remain in the United States. Those crimes have been defined in both Federal circuit court decisions and the Board of Immigration Appeals as any crime that includes or encompasses a "base or vile act." While the various cases decided are uneven, there are certain types of crimes that have been directly held to involve moral turpitude:

• Crimes (felonies or misdemeanors) in which either an intent to steal or defraud is an element of the crime. This could conceivably include crimes such as larceny of any degree, credit card and identity thefts, "phishing" on the Internet and any other type of crime where the perpetrator seeks to criminally take advantage of others particularly in the U.S.

• Crimes (felonies or misdemeanors) in which there is an element of intentional or reckless infliction of harm to persons or property.

• Felonies, and some misdemeanors, in which malice is an element.

• Sex offenses, in which some "lewd" intent is an element.

Murder, rape, voluntary manslaughter, robbery, burglary, theft, arson, aggravated forms of assault, forgery, prostitution and shoplifting have all been consistently held to involve moral turpitude. There are others as well, so it is worthwhile to review the specific case law on this issue.

Other Crimes That Can Trigger Deportation

This type of crime is rampant throughout the United States and it includes almost any type of violations of any law relating to controlled substances, purchasing, selling or using a firearm or destructive device or crimes involving domestic violence or violations of Orders of Protection of any nature.

These areas of the Immigration and nationality Act are especially problematic for non-citizens because often something that appears innocuous in the Criminal Court may turn into something of major proportions by the time it shows up in the Immigration Court or Federal District Court.

Since there are so many types of drugs, almost any of them will suffice to trigger a deportation hearing or a denial hearing when citizenship or even a Green Card are applied for. As a result, it is imperative that the criminal lawyer who represents any non-citizen be fully apprised of everything regarding these types of offenses, so they can make sure that they do not allow a conviction for any of the above charges.

All in all, non-citizens must be especially careful and be sure they recognize what they are being asked to plead guilty to in the criminal court, so they don't jeopardize their immigration status in the future. Make sure you always check with an Immigration attorney before completing any criminal case, so you are sure it will not adversely affect your status in the United States.

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