DEPORTATION/REMOVAL DEFENSE FOR PEOPLE WITH CRIMINAL CONVICTIONS
Deportation and removal from the United States is the harshest punishment you could suffer for violating United States immigration laws and criminal laws. Many non-citizens all-too-often do not realize that even a minor infraction or a conviction, even if it occurred decades ago, could trigger deportation or removal proceedings. In many cases, you stand to suffer harsher immigration consequences than criminal consequences for a conviction. For example, if you had a conviction for which you received probation, if placed in removal proceedings on the basis of that conviction, you could be subject to indefinite mandatory detention in immigration custody far away from your home and family, and may ultimately be ineligible for a waiver of deportation, even if you have been a green card holder for decades and decades.
Many people in the U.S. with criminal convictions have not been placed in removal proceedings, but just because a person was not placed in proceedings after their convictions does not mean that it will not happen in the future. A person can be place in removal proceedings if they are stopped by the police for a minor traffic infraction such as speeding. When the police run their record and see that they are not a U.S. citizen, they call the Immigration authorities who place that person in detention. Many people upon return to the U.S. for a brief trip abroad are placed in proceedings by the airport inspectors. In Florida and other states, the police are detaining individuals who fail to show valid unexpired driver’s licenses at traffic stops. We have seen many cases in Florida where a people with old criminal convictions are placed in removal proceedings because they were stopped for minor traffic infractions by the police or upon returning from trips outside the U.S.
Detention Based on Deportation Issues
Section 236(c) of the Immigration and Nationality Act lists broad categories of noncitizens who are subject to mandatory detention based on their removability under specific criminal and security related provisions, including, among others, INA § 212(a)(2) and INA § 237(a)(2)(A)(ii), (A)(iii), and (B), (C), and (D). On April 29, 2003, the Supreme Court issued a 5-4 decision in Demore v. Kim, 123 S. Ct. 1708 (2003). The Court held that under INA § 236(c), the government may detain classes of lawful permanent residents without conducting individualized bond hearings to determine whether they pose a flight risk or danger to the community.
Only individuals who were released from criminal custody (meaning physical custody) after October 8, 1998 are subject to mandatory detention. Under the Board of Immigration Appeals decision Matter of West, 22 I. & N. Dec. 1405 (BIA 2000), this includes individuals who are released from physical custody following a criminal arrest, regardless of whether the person is sentenced to incarceration.
Individuals subject to mandatory detention will not be released on a bond pending their removal case, and they will have to fight their deportation case while remaining detained. This, of course, is a very difficult situation for both the detained individual and his or her family members.
However, whether an individual is even subject to mandatory detention is an ongoing issue of great importance and debate. If you are concerned about whether you or someone you know and love would be subject to mandatory detention if detained by the U.S. Immigration and Customs Enforcement, please contact our office for a consultation to discuss your situation in detail.
What types of crimes are deportable?
While there are many crimes that could form the basis for deportation, the most common are:
• Drug offenses (possession or sale);
• Sex offenses (including convictions for sexual abuse of a minor or endangering the welfare of a child);
• Fraud convictions (including credit card fraud and visa or passport fraud);
• Theft offenses (including burglary and robbery)
• Aggravated felonies (including murder, rape, and drug trafficking)
• Crimes of Moral Turpitude including two or more petty offenses
• Domestic violence (including stalking)
• Weapons possession (including possession of a firearm)
• Aggravated Assault
• Child abuse
What types of crimes are not deportable?
• One Petty offense. A conviction is considered to be a petty offense if the maximum penalty possible for the crime did not exceed imprisonment for one year and if the person convicted of the crime was not sentenced to a term of imprisonment of more than 6 months.
• Simple assault
• Simple battery
• Child abandonment
• Leaving the scene of an accident
• Breaking and entering
• Some types of burglary
• Possession of less than 20 grams of marijuana
If you have ever been convicted of any of the crimes listed above-or any other crime-it is in your best interest to speak with an immigration attorney. While you may believe your conviction was “just a violation” or “just a misdemeanor,” it may still affect your immigration status and your ability to work and stay.
Withhold of Adjudication
Many immigrants believe that if they have a withhold of adjudication rather than a conviction, they are not removable. This is an incorrect assumption. U.S. Immigration law states that a withhold of adjudication is the same as a conviction, and therefore pleading “no-contest” in exchange for a withhold of adjudication will not exempt a person from being placed in removal proceedings, depending on the crime.
Sealing and/or Expungement of Criminal Records
Many immigrants mistakenly believe that if they are able to seal or expunge a conviction, that they are not removable for that conviction. That is also a mistaken assumption. The sealing or expungement of criminal records do not ameliorate the immigration consequences of a conviction.
Post Conviction Relief
Many courts are now considering post-conviction relief for noncitizens with convictions where advice on pleas may have been ineffective. One of the big issues now is whether these cases will be applied retroactively for post-conviction relief. The majority of decisions so far are coming out this way. If it is believed that post-conviction relief could be necessary to avoid adverse immigration consequences, know that time may be of the essence to seek help. Many forms of relief are time barred, and immigration removal actions move on their own calendar, without regard to prospective relief in state courts. Padilla v. Kentucky is a landmark U.S. Supreme Court decision from 2010 which held that defense counsel has an affirmative duty to competently address immigration issues presented by a client’s criminal charges. As per the Court’s decision, “Accurate legal advice for noncitizens accused of crimes has never been more important.” The Court explicitly held that deportation is not a “collateral consequence” of the proceeding, as was held by the Kentucky Supreme Court, and has been commonly thought by attorneys. This means that if a person was misadvised by their attorney that they would suffer immigration consequences as a result of their plea, they could reopen their criminal case and vacate the conviction.
How can I Stop Deportation?
If you are subject to deportation or removal, depending on the specific facts of your case, you may be eligible for relief from deportation in forms of waivers of deportation or other forms of discretionary and/or mandatory relief. Some of these forms of deportation relief include but are not limited to:
• Cancellation of deportation or removal (for green card holders and non-green card holders)
• Waivers under former INA § 212(c) (only a narrow class of people are eligible for this)
• Waivers under INA § 212(h) and INA § 212(i)
• Suspension of deportation (virtually eliminated but still available to few)
• Voluntary departure
• Adjustment of Status
• Asylum, Withholding of removal, and protection under Article 3 of United Nations Convention Against Torture
• Post conviction relief
How Do I Win My Deportation Case?
Just because you may be eligible to apply for deportation relief does not guarantee that you will win. Be wary of anyone who says he or she can “guarantee” that you will win. An immigration judge has to consider many things before deciding whether you deserve to stay in this county.
Most common factors the immigration judges look at in considering various deportation waiver applications and in deciding whether you deserve to stay here include, but are not limited to:
• How long you have lived in the United States with or without a green card (the longer you have been there, the better for you)
• Who in your immediate family (usually a spouse, parent, or a child) is a U.S. citizen of a green card holder (more citizen and green card holder family members mean you have an established family here)
• Your employment history (the fact that you are and have been working shows you are not a public liability to someone)
• History of tax payment
Tip: You should always pay taxes regardless of whether you are here legally or not. If you do not have a social security number and cannot obtain one, you must obtain and use an IRS Individual Taxpayer Identification Number (TIN). Click here to learn how to obtain a tax identification number so you can pay your taxes!)
• The nature and extent of your involvement in the community (church, volunteer work, etc.)
• The nature and extent of your history of violation of the immigration laws (being present illegally or working without authorization, etc.)
• The nature and extent of your criminal history, if you have any (convictions, jail sentence, etc.)
• The extent of your rehabilitation, if you have a criminal history (single incident, pattern of criminal behavior, etc.)
• Hardships suffered by your United States citizen or lawful permanent resident family members if you were deported (their ability or inability to relocate with you, etc.)
Note: In some cases, you may be required to show different levels of hardship to your qualifying relatives, such as “extreme hardship” or hardships that are “unusual and outstanding.” This will depend on the type of relief application filed.
• Any negative factors (this will depend on your case)
• Any positive factors (this will depend on your case)
Upon “looking into your life” and going through all the evidence and testimony you and the government lawyer submit, the immigration just is required to weigh and balance all of your negative factors and positive equities. If the good outweighs the bad, it is very likely that an immigration judge would grant you a waiver of deportation so that you can stay in the United States. However, if the immigration judge finds that the negative factors in your case, mostly, the nature and extent of any criminal history, outweigh all of your positive equities, you are likely to lose your case in immigration court.
And remember, even if you win, the U.S. Immigration and Customs Enforcement can appeal the immigration judge’s decision to the Board of Immigration Appeals, just like you can appeal if you lose. It is very rare that a deportation or removal case simply ends in immigration court with outright victory. Majority of the times, cases wind up on appeal, then go through motions, and a significant amount wind up in federal court litigation.
Competent Legal Representation is Key
There is rarely a case that is so clear cut “winable” or “hopeless.” It is always in your best interest to find competent legal representation, so that your case can be properly presented. Many times, cases are lost because of poor submission of documentary evidence to support a deportation relief application.
If you wish to consult Barry Lieber about how we can help you with your case in immigration court, at the Board of Immigration Appeals, or in federal court, please contact our office to schedule a consultation.