REPRESENTING IMMIGRANTS CHARGED WITH CRIMES
The intersection of criminal and immigration law is particularly complex. When an immigrant is charged with a crime, the effect on his relief from immigration varies greatly depending on his particular immigration status, the type of criminal charge, and the exact terms of the sentence. Something that might seem inconsequential to a criminal lawyer or a prosecutor as far as an amendment to the charge, a variation in the way something is plead before the court, or the language of a sentencing order can have drastic consequences for immigration.
It is important that every criminal defense attorney have a basic understand of the immigration consequences of criminal convictions. That being said, there is simply only so much a criminal defense attorney can be expected to know. We have extensive experience in both Virginia criminal law as well as immigration law, and are well situated to guide an immigration through a criminal case with the best possible outcome for their immigration status. We have included some general information that we hope you will find useful here. However, nothing can take the place of a consultation with an experienced attorney to explore your options.
Assess Immigration Status
Classify Criminal Charge
Outline Immigration Consequences
Implement Overall Strategy
CLASSIFY CRIMINAL CHARGE
EFFECT ON IMMIGRATION STATUS
Immigration law classifies a wide variety of criminal offenses as 'Crimes Involving Moral Turpitude,' or as it is more commonly referred a 'CIMT.' A crime involving moral turpitude will have a drastically different effect on relief under the immigration laws than a crime that does not involve moral turpitude. A crime involving moral turpitude must involve (1) reprehensible conduct and (2) mens rea higher than negligence. These are obviously broad terms subject to discretion. Indeed, the definition has evolved through case law, rather than by statute. Some common examples under Virginia law are petit larceny and giving a false identity to a law enforcement officer.
Aggravated felonies are specifically defined by statute. While some felony offenses will qualify a aggravated simply by virtue of the type of charge, other offenses require that the immigrant receive a particular sentence. For example, a felony theft conviction would only qualify as an aggravated felony if the immigrat were sentenced to one year or more. It is important to note that the calculation includes a suspended sentence. On the other hand, a conviction for rape will be an aggravated felony irrespective of the sentence. Aggravated felony convictions bar relief for nearly all types of immigration relief with a few exceptions.
Irrespective of the legal effect of criminal convictions, certain criminal offenses can designate you as an enforcement priority for removal by Immigration and Customs Enforcement even if the crime is not classified as a CIMT. Under the Obama administration, the enforcement priorities were clearly communicated. There is a large degree of uncertainty as to how the Trump administration will handle enforcement of the immigration laws, but with limited resources it is certain that there must be some scheme of enforcement prioritization.
Admissibility is the standard applied to those seeking admission to the United States or adjustment of status. For example, an immigrant filing for adjustment to lawful permanent resident status from within the United States must meet the standard of admissibility. Certain criminal offenses create grounds or inadmissibility, such as a conviction for a crime involving moral turpitude, a controlled substance offense, and prostitution related offenses. There are some exceptions and waivers to inadmissibility, but is vitally important to structure a criminal case with inadmissibility in mind if you are planning to adjust status or apply for admission from abroad.
Grounds for removability, otherwise known as deportation, apply if you have already been lawfully admitted to the United States. The types of criminal convictions that result in removability depend on a variety of factors. For example, you are removable if you have been convicted of a crime of moral turpitude that was committed within five years of your admission to the US. However, if more than 5 years have passed from your admission, you will be removable if you have been convicted of two crimes involving moral turpitude. If you are removable the government can initiate removal proceedings against you, issuing a Notice to Appear, or 'NTA,' in immigration court.
Mandatory detention refers to those immigrants who must be detained by Immigration and Customs Enforcement. If you are subject to mandatory detention, there is no way you can receive a bond and be released from detention during your removal proceedings, which can last for months. Mandatory detention applies to immigrants who have been convicted of certain crimes that trigger inadmissibility or removability, such as an aggravated felony and crimes involving moral turpitude under INA 212(a)(2).