Adriana Fierro Rascon
Managing Attorney at Fierro Law, PLLC
ISSUE 13 | SUMMER 2023 | CRIMINAL LAW |
Immigration law is complex and constantly changing. If you are a non-citizen facing criminal charges, please consult with an experienced immigration attorney specializing in removal defense BEFORE accepting a plea because what may seem like an appealing plea could result in severe immigration consequences. It’s also important to note that criminal conduct can still trigger immigration consequences even if it ultimately results in no criminal conviction.
I. Introduction
Criminal charges can often result in serious, and perhaps unintended, consequences for those living in the United States without lawful status or as lawful permanent residents (green card holders). Unfortunately, most non-citizens with criminal convictions fail to understand the true consequences of their conviction until it affects them later in life. For this reason, both attorneys and non-citizen defendants must be conscious of the long-lasting immigration consequences of a criminal plea and conviction.
In the groundbreaking 2010 decision of Padilla v. Kentucky, the Supreme Court recognized that changes in immigration law “have dramatically raised the stakes” for non-citizens facing criminal charges, and for that reason, “accurate legal advice has never been more important.”¹ In that case, Mr. Padilla, a non-citizen, pled guilty to a drug offense on the advice of counsel who told him “not to worry about deportation because he had lived in the country for so long.”² Mr. Padilla was subsequently placed in removal proceedings and argued Sixth Amendment violations stating that but for the ill advice of his attorney, he would have taken his case to trial.³ After Padilla, attorneys must inform non-citizen clients of the immigration consequences involved with criminal pleas.⁴
II. What kind of immigration consequences arise from criminal charges and convictions?
Criminal charges and convictions can have severe consequences for non-citizens. It is no secret that our criminal justice system is often used as a way to remove non-citizens from the United States, as our government has long been aware of the immigration consequences of criminal convictions. In Bridges v. Wixon, the Supreme Court acknowledged that the consequences of removal on a non-citizen are likely more severe than the imposition of the criminal sentence itself because once removed, they are likely to face “poverty, persecution, and even death.”⁵
Depending on the nature and severity of the crime, a criminal record can lead to a denial of entry, removal, inadmissibility, or the inability to become a U.S. citizen in the future. These consequences are explained in detail below.
A. Denial of Entry
“Denial of entry” is a legal term used in immigration law that is used when a person is not allowed entry at a border crossing.⁶ Under immigration law, a non-citizen arriving at a port of entry is subject to inspection by immigration officials who will determine whether they meet the legal requirements for entry into the country.⁷ One of those requirements includes an assessment of a person’s criminal record.⁸
A non-citizen with a criminal conviction may be denied entry into the United States even if they have been allowed to enter on previous occasions. Ultimately, immigration officials will review their criminal history to assess whether they are “admissible” (defined below) and whether the severity of their crime(s) would pose a threat to public safety. It is important to note that immigration officials can exercise discretion when making these determinations.⁹
Example: Ronald is in the United States on an F-1 student visa. He is convicted of aggravated assault and serves a one-year jail sentence. After being released, Ronald returns to Egypt, his birth country, during winter break from school. Upon returning to the United States, an immigration official reviews his criminal conviction and denies entry on the grounds that he poses a threat to public safety.¹⁰
B. Inadmissibility
An “inadmissible non-citizen” refers to a non-citizen who has not been inspected and admitted to the United States and is subject to grounds of removal specified in section 212 of the Immigration Nationality Act (INA).¹¹ In other words, an inadmissible non-citizen is generally not eligible to enter, remain, or adjust their immigration status in the United States.
The consequences of inadmissibility will depend on whether you are inside or outside the United States. It is possible to be living in the United States and be inadmissible. An inadmissible non-citizen living in the United States may be subject to removal and/or ineligible to adjust their immigration status despite having a qualifying familial relationship. An inadmissible non-citizen living outside the United States will likely be denied entry.
Inadmissibility can be triggered in various ways, one of them being through criminal convictions. Certain criminal offenses, such as crimes involving moral turpitude (CIMTs), drug offenses, or certain violent crimes, will give rise to inadmissibility issues.¹²
Example: Regina is a non-citizen who entered the United States five years ago on a visitor visa that has since expired. Regina has two child abuse convictions from two years ago. Regina recently married a United States citizen and planned to file for adjustment of her immigration status. Despite Regina’s ability to comply with most of the requirements, her past convictions will likely make her inadmissible and thus ineligible to adjust her immigration status.
C. Removal
“Removal” is a legal process in immigration law that involves the forced removal of a non-citizen from the United States.¹³ Certain crimes, such as aggravated felonies or drug offenses, are considered “removable offenses.”¹⁴ A non-citizen convicted of a removable offense will likely be placed in removal proceedings and ordered removed from the United States. Removal proceedings are handled in federal immigration court, where a federal immigration judge will make a final ruling.¹⁵
During these proceedings, the non-citizen can present their case on why they should be allowed to remain in the country based on any avenues of relief¹⁶ they may qualify for. However, if the immigration judge determines that the non-citizen is ineligible for relief, the judge will issue an order of removal. Once a non-citizen is ordered removed, they will be detained by immigration authorities and placed in a detention facility until they can be removed. In some cases, the non-citizen may be allowed to depart the country voluntarily within a specific time frame.¹⁷ However, failure to do so may result in forced removal by immigration officials.
Example: Robert is a non-citizen who entered the United States without inspection two years ago. All of Robert’s family members reside in his home country. Robert is arrested and convicted for a fraud-related criminal offense. At the conclusion of his criminal case, Robert is placed in removal proceedings where he makes his case against removal in front of an immigration judge. The immigration judge finds that Robert lacks any plausible avenues of relief and orders his removal.
III. What crimes can make a non-citizen inadmissible and removable?
When analyzing the immigration consequences of a criminal offense (i.e., inadmissibility or removability), you must first determine whether the criminal conduct constitutes a ground for inadmissibility or removability. This categorization is important because a crime that makes a non-citizen inadmissible may not necessarily make them removable, and vice versa. It is also important to note that eligibility for certain forms of immigration relief may depend on the type of criminal conduct. Below are the criminal grounds of inadmissibility and removability under the INA and federal law.
Criminal Grounds of Inadmissibility¹⁸
Admission or conviction of a crime involving moral turpitude (with some exceptions)
Admission or conviction of a drug offense
An immigration official knows or has reason to believe that the person has participated in drug trafficking or has benefitted from an inadmissible relative’s drug trafficking within the last five years
An immigration official knows or has reason to believe that the person has participated in human trafficking or has benefitted from an inadmissible relative’s human trafficking within the last five years
Engaging or seeking to engage in prostitution or commercialized vice
Two or more criminal convictions where the total combined sentence is at least five years
Engaging in serious criminal activity where prosecutorial immunity has been asserted
Foreign government officials who have committed severe violations of religious freedom
An immigration official knows or has reason to believe that the person has participated in or seeks to participate in money laundering
Criminal grounds of Removability¹⁹
A conviction for a crime involving moral turpitude that was committed within five years after the date of admission and that carries a potential sentence of a year or more
A conviction of two or more crimes involving moral turpitude arising out of different incidents of criminal misconduct
An aggravated felony conviction any time after admission
A conviction for fleeing from an immigration checkpoint
A conviction of a controlled substance violation any time after admission (with the exception a single incident of possession of marijuana of 30g or less for personal use)
A person who, at any time after admission, has been a drug abuser or addict
A conviction of certain firearms offenses
A conviction for miscellaneous crimes relating to espionage, treason, and sedition
A conviction for a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment
A judicial finding of violating certain provisions of domestic violence protection orders in civil or criminal court
A. False Claim of United States Citizenship
Lying about being a United States citizen may raise grounds for inadmissibility and removability under section 212 of the INA.²⁰ Moreover, lying about United States citizenship is a federal criminal offense punishable by a fine and up to three years in prison.²¹ A false claim can occur by voting in a United States election, using a fake birth certificate, or simply checking the wrong box on Form I-9. A false claim to citizenship is a serious matter as it will result in a permanent inability to obtain lawful or citizen status in the future and may trigger removal proceedings.²²
B. What is a Crime Involving Moral Turpitude?
Crimes involving moral turpitude (CIMT) can render a non-citizen both inadmissible and removable. There is no official legal definition as to what constitutes a CIMT, however, the Board of Immigration Appeals (BIA) defines them as “a class of offenses involving ‘reprehensible conduct’ committed with some form of . . . culpable mental state . . . . Conduct is ‘reprehensible’ if it is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’”²³ In other words, CIMTs are morally unacceptable acts involving dishonesty, fraud, or otherwise immoral behavior.
C. What is an aggravated felony?
Under immigration law, an aggravated felony includes murder, rape, sexual abuse of a minor, drug or firearm trafficking, money laundering, certain firearm offenses, child pornography, theft, violent crimes, prostitution, or an attempt to commit these crimes.²⁴ This list is non-exhaustive, and the complete version may be found under section 101(a)(43) of the INA. It is important to note that, for immigration purposes, misdemeanors and non-aggravated offenses can also qualify as aggravated felonies.
D. What is a criminal sentence for immigration purposes?
Immigration law defines a criminal sentence as “the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”²⁵ In simple terms, a criminal sentence for immigration purposes occurs when the judge orders an individual’s incarceration, even if that incarceration is ultimately suspended.
A suspended sentence occurs when a judge imposes jail time but then delays imposing the sentence, allowing the defendant to serve some form of community supervision.²⁶ It is important to understand the effects of a suspended sentence. For example, a suspended imposition of incarceration without jail time is NOT a sentence for immigration purposes.²⁷ However, a suspended execution of incarceration IS a sentence for immigration purposes because the sentence was still imposed regardless of whether it was executed.²⁸
E. What constitutes a criminal conviction for immigration purposes?
Under immigration laws, the term “conviction” with respect to a non-citizen refers to:
A formal judgment of guilt of the [non-citizen] entered by a court, or if adjudication of guilt has been withheld, where[] . . . a judge or jury has found the [non-citizen] guilty or the [non-citizen] has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and . . . the judge has ordered some form of punishment, penalty, or restraint on the [non-citizen’s] liberty to be imposed.²⁹
So, what does this wordy definition really mean? For immigration purposes, a conviction can arise when there is a punishment, penalty, or restraint on a non-citizen’s liberty and:
A formal judgment from the court finding the non-citizen guilty; OR
A finding of guilt by the jury after a trial; OR
A non-citizen enters a plea of guilty or no-contest; OR
A non-citizen admits sufficient facts to warrant a guilty finding.
F. What is NOT a conviction for immigration purposes?
When defending criminal charges, there are creative ways to resolve a case so that it fails to meet the “conviction” definition under immigration law. Below are some examples of situations where the threshold for an immigration conviction is not met:
Juvenile matters: Generally, criminal cases handled in juvenile court do not constitute a conviction for immigration purposes. However, it is important to note that, in some states, this protection may not apply in cases where a child turns 18 while the case is pending, and the case is transferred to an adult court.³⁰
Acquittals: An acquittal occurs when a person accused of committing a crime is found not guilty by a judge or jury. A case that results in an acquittal does not constitute a conviction for immigration purposes.³¹
Pardons: A pardon is an act by the president (federal offenses) or the governor (state offenses) that nullifies a crime's punishment and legal consequences.³² A pardon relieves a non-citizen of the immigration consequences of their criminal conviction.
Pre-trial Diversion/Deferred Prosecution (specific qualifications required): These are different types of plea agreements that may not constitute a conviction so long as there was (1) no guilty plea, (2) no plea of no contest, or (3) no judicial finding of guilt. To comply with these strict requirements, there must be absolutely no admission or finding that the non-citizen committed the offense.³³
Vacated conviction for legal error or pending criminal appeal: If a non-citizen’s criminal conviction is vacated due to legal error, it is not a conviction for immigration purposes. Some examples of when a legal error can arise when the appellate court finds evidence of jury misconduct, ineffective assistance of counsel, or constitutional violations during the non-citizen’s court proceedings.³⁴
Example: In the case Matter of J.M. Acosta, the BIA ruled that a criminal conviction on direct appeal is not a conviction for immigration purposes because the conviction is not deemed final.³⁵ However, it is important to note that not all circuit courts agree with this BIA holding and may not follow it.
IV. Conclusion
Be informed and protect your rights. A non-citizen facing criminal charges must work with an experienced immigration attorney to fully understand the immigration consequences of a conviction. An immigration attorney can also assist in formulating a creative plea deal to help a non-citizen remain in the United States, such as proposing a plea for a different offense or providing language that fails to meet immigration conviction requirements. Every situation is unique, so while accepting a plea may be one person’s way of avoiding removal, for another, it could mean their ticket back home. With immigration consequences being just as severe—if not more severe—than criminal consequences, non-citizens must work with an attorney that will protect their rights and guide them through the complex world of crimmigration.
Suggested Citation: Adriana Fierro, Crimmigration: The Consequences of Criminal Conduct of Non-Citizens, ACCESSIBLE LAW, Summer 2023, at 23.
Sources:
[1] Padilla v. Kentucky, 559 U.S. 356, 364 (2010).
[2] Id. at 359.
[3] Id.
[4] Id. at 374.
[5] Bridges v. Wixon, 326 U.S. 135, 164 (1945) (Murphy, J., concurring).
[6] INA § 101(a)(13)(a) (2018).
[7] Applying for Admission into United States, U.S. Customs and Border Prot., https://www.cbp.gov/travel/international-visitors/applying-admission-united-states (last modified May 27, 2022).
[8] 8 U.S.C. § 1182(a)(2) (2018).
[9] Id.
[10] Id. § 1227(a)(2).
[11] Reporting Terminology and Definitions, U.S. Dep’t of Homeland Sec, https://www.dhs.gov/immigration-statistics/reporting-terminology-definitions (last updated Aug. 12, 2022) (“inadmissible noncitizen”).
[12] 8 U.S.C. § 1182(a)(2) (2018).
[13] Reporting Terminology and Definitions, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/immigration-statistics/reporting-terminology-definitions (last updated Aug. 12, 2022) (“removal (noncitizen removed)”).
[14] 8 U.S.C. § 1227(a)(2) (2018).
[15] About the Office, The U.S. Dep’t of Justice, https://www.justice.gov/eoir/about-office (last updated Apr. 25, 2023).
[16] Some avenues of relief of removal include cancellation of removal, asylum, withholding of removal, convention against torture protection, and adjustment of status. To read more about these avenues of relief see American Immigration Council, The Removal System of the United States: An Overview, Research (Aug. 2022), https://www.americanimmigrationcouncil.org/sites/default/files/research/removal_system_of_the_united_states_an_overview.pdf.
[17] 8 U.S.C. § 1229c(a)(1) (2018).
[18] INA § 212(a)(2) (2018).
[19] 8 U.S.C. § 237(a)(2) (2018).
[20] INA § 212(a)(6)(C)(ii) (2018).
[21] 18 U.S.C. § 911 (2018).
[22] INA § 237(a)(3)(D) (2018).
[23] Matter of Diaz-Lizarraga, 26 I&N Dec. 847, 849 (BIA 2016) (internal citations omitted).
[24] Reporting Terminology and Definitions, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/immigration-statistics/reporting-terminology-definitions (last updated Aug. 12, 2022) (“Aggravated Felony”).
[25] 8 U.S.C. § 1101(a)(48)(B) (2018).
[26]Suspended Sentence, Black’s Law Dictionary (6th pocket ed. 2021).
[27] Immigrant Legal Resource Center, § N.4 Sentence, Immigrant Legal Res. Ctr., July 2013, at 97, 97 https://www.ilrc.org/sites/default/files/resources/n.4-sentence_solutions.pdf.
[28] Id.
[29] 8 U.S.C. § 1101(a)(48)(A) (2018).
[30] ILRC Staff Attorneys, A Guide for Immigration Advocates 189 (23rd ed. 2022).
[31] Id.
[32] Pardon, Black’s Law Dictionary (6th pocket ed. 2021).
[33] ILRC Staff Attorneys, supra note 30.
[34] ILRC Staff Attorneys, supra note 30.
[35] Matter of J.M. Acosta, 27 I&N Dec. 420, 428 (BIA 2018).
