Facing Deportation For a Criminal Charge?

All immigrants to the United States - including those with green cards - can be deported if they break US immigration laws. Immigrants may be deported if they are convicted of what is known as a ‘crime of moral turpitude’ or an aggravated felony. Crimes of moral turpitude can subject you to deportation in some cases, while conviction for an aggravated felony will make you subject to deportation proceedings in almost all cases.

Below are details of the types of criminal charges and convictions can cause immigrants to be deported for crimes of moral turpitude and aggravated felonies.

US Immigration Law and Crimes of Moral Turpitude

Crimes of moral turpitude are not very well defined under US law. But the State Department has given guidance on this subject. It notes that the common elements of a crime of moral turpitude include larceny, fraud and the intent to hurt people or things. Crimes that involve theft and dishonesty are normally considered to be deportable crimes. Other examples of possibly deportable crimes are assault, abusing a spouse, aggravated driving offenses such as DUI.

However, courts have found that assaults that do not involve a weapon are not crimes of moral turpitude.

You may argue that your criminal conviction does not count as a crime of moral turpitude, or that the statute that you broke contains elements that do not always relate to moral turpitude. This type of defense depends upon how the statute is worded.

When You Can Be Deported for a Crime of Moral Turpitude

There are two ways that committing this crime can put you into deportation proceedings:

  • The crime committed was in the first five years you lived in the US.
  • Two or more crimes were committed that did not come from a single incident of criminal misconduct at ANY time after you entered the US.

You can lose your permanent resident card and deported if you commit more than one crime that involves moral turpitude; it does not matter when the crime happened. However, if more than one crime arose from the same incident of criminal misconduct, they are only considered to be a single crime. Whether this rule will apply in your situation depends upon the types of crimes committed.

For instance, if you have two convictions for robbery but both of them happened at the same location and at the same time, both offenses arose from the same criminal misconduct. If you committed two different robberies and they happened on different dates and at different locations, the crimes are separate incidents. You would likely face deportation in this case.

Crimes Within Five Years of Admission

To determine if you committed a crime of moral turpitude within five years after you came to the US, the key is begin with the date the crime occurred, and then look back five years from that date. If you were allowed into the US during that five year period, you could be put into deportation proceedings. If more than five years have gone by since you came into the US, you cannot be deported.

For instance, if you entered the US in 2001 and got a green card in 2006, and committed a ‘crime of moral turpitude’ in 2009, you cannot be deported. More than five years went by since you were admitted. In some cases, the date that the person became a permanent resident may also be treated as the date of admission.

Waiver for Crimes of Moral Turpitude

There are some situations where you could ask to apply for or reapply for a green card as a deportation defense in addition to a 212(h) waiver even though you committed a crime of moral turpitude. To qualify for this waiver, you are not allowed to be a threat to national security. Also, if you have a green card, you cannot have committed an aggravated felony. You also must have lived in the United States in a lawful status for seven years minimum before you faced the deportation case.

If the crime is for prostitution, or was done more than 15 years before you applied for a green card, you just need the judge to decide if you are entitled to the waiver. Also, if you qualify for a green card under the Violence Against Women Act due to suffering emotional or physical abuse, you just need the approval of the judge.

The only other cases where you can get a 212(h) waiver is if you can prove the deportation may cause your family extreme hardship if they are US citizens or permanent residents.

Being able to get a waiver usually depends upon the following factors:

  • Level of violence of the crime
  • Proof that you have been rehabilitated
  • Other factors that indicate you deserve another chance

Petty Offenses and Deportation

US immigration law states that a crime may not be classified as one of moral turpitude if it is a petty offense. This exception may apply if the penalty for the crime never can exceed a year in jail or prison, and if the time the person served was under six months.

Common petty offenses that should not result in deportation are:

  • Shoplifting
  • Simple assault without a weapon
  • DUI that did not involve driving with no license
  • Property damage

Definition of Aggravated Felony

The other reason you can be deported is for committing an aggravated felony. The Department of Justice states that the crimes below will result in deportation if you are convicted:

  • Murder
  • Drug trafficking
  • Arms trafficking
  • Money laundering
  • Crimes of violence generally with a five year or more prison sentence
  • Crimes of burglary or theft with a five year or more prison sentence
  • Racketeering
  • Child pornography
  • Sabotage
  • Terrorism
  • Perjury with a one year minimum sentence
  • Rape
  • Human trafficking
  • Espionage and treason
  • Smuggling illegal aliens
  • Ransom crimes

If you have been convicted of any aggravated felony, there is little to prevent you from being deported, unless you can show you could be tortured when sent back to your own country. A waiver to get back to the US will not be available to you if you are convicted of an aggravated felony.

If you have been criminally convicted and are appealing, you cannot be deported as the case is not final. However, if you have filed a habeas corpus petition or a motion to vacate the criminal conviction, the conviction has been finalized and you can be deported as you await the decision on the case.

What To Do Next?

If you are facing deportation from a convicted crime, call immediately to arrange for a consultation with an experienced Criminal Defense Lawyer to discuss your legal concerns or to begin the appeals process.

References

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