Immigration Consequences in Criminal Cases

For non-citizens, the immigration consequences of a criminal conviction can be much more severe than the criminal consequences.  Accordingly, the usual goals of minimizing jail time and fines may not be enough, and may not be the primary focus for non-citizens in criminal cases.  Not all criminal convictions will lead to removal or inadmissibility, but immigration law consequences must be taken carefully considered when defending criminal cases.  Immigration law has its own criteria, often distinct from the traditional criminal law terminology and considerations. 

Having the right criminal defense attorney during criminal proceedings may be more important than having the right representation later during immigration proceedings.  Avoiding the wrong kind of conviction could help you avoid proceedings altogether or make it possible to obtain other relief and stay in the country.  Knowing the immigration consequences of criminal conviction is extremely important for a Los Angeles Criminal Defense Attorney.  Many non-citizens are charged with crimes in California, but these charges do not have to mean deportation.  Consult with an experienced, knowledgeable criminal defense attorney before it is too late.

Aggravated Felonies
Aggravated felonies, commited any time after admission are grounds for permanent banishment for non-citizens.  Non-residents convicted of aggravated felonies are are subject to "administrative removal" meaning that they will not be entitled to a removal hearing or the defenses to removal (including asylum).  Aggravated felonies include:
-illegal trafficking (controlled substances or firearms)
-crimes of violence (crimes involving force or threats of force), where the sentence is greater than one year.
-theft offenses with a sentence of at least one year
-fraud or deceit where the loss to the victim exceeds $10,000

Crimes Involving Moral Turpitude
Crimes involving moral turpitude (CIMTs) subject non-citizens to deportability and inadmissibility.  A CIMT is a crime involving theft, deceit, forgery and the like.  A single CIMT conviction will trigger deportation for many non-citizens if the crime is punishable by up to a year.  This includes many misdemeanors.  If the offense carries a maximum sentence of 6 months, the conviction will not trigger deportation, even though the crime is a CIMT.  For non-residents, a single CIMT conviction, regardless of the maximum penalty will make the non-resident inadmissible (note: there is a petty theft exception, which allows non-residents to avoid inadmissibility with one conviction for petty theft).

Controlled Substances
Controlled substance offenses are often aggravated felonies.  Even if a state offense is not treated as a felony, if the charge has a federal analogue felony, it will be treated as such.  Luckily, most simple possession offenses are not aggravated felonies.  Still, many controlled substance-related offenses can lead to deportation or inadmissibility, even if not aggravated felonies.  In some cases, no conviction is even necessary.  A non-citizen can be inadmissible or deported for being a drug addict or drug abuser.  Moreover, a person can be deportable or inadmissible if the government has "reason to believe" a person was involved in drug trafficking, even if there was no conviction.

Crimes of Violence or Domestic Violence
Like crimes involving controlled substances, many crimes of violence and domestic violence are aggravated felonies.  Additionally, however, crimes of domestic violence are deportable, even if not aggravated felonies.  In these cases, it is important to avoid a domestic violence conviction, even if there is a conviction for a crime of violence.  The conviction must not be an aggravated felony (sentence of less than one year) and must not make mention of the domestic relationship between the defendant and victim.  In California, PC 243(e) can also help non-citizens avoid deportation because the courts have held this statute "divisible" because it includes not only violent acts, but also offensive touching.  Violating a criminal or civil stay away order in a domestic violence situation can also be a deportable offense; as such, pleading to a new offense is favorable to violating a protective order.  Like crimes involving domestic violence, crimes of child abuse, child neglect or child abandonment are also deportable offenses and require special attention.

Sex Offenses
Rape, child pornography, child molestation, and most other sex offenses are aggravated felonies.  Prostitution, while not an aggravated felony can also trigger removal proceedings.  Avoiding deportation or inadmissibility with sex offenses is perhaps the most difficult task a defense attorney may face in handling a criminal matter for a non-citizen.  Often, the goal with these cases is to limit time in custody prior to deportation, but also to limit the effect of a future illegal re-entry charge if the defendant may re-enter the country illegally.

Possible Relief
Some non-citizens are eligible for certain relief from removal or inadmissibility.  For example, non-citizens who are Licensed Permanent Resident (have a green card) who have lived in the U.S. for at least seven years may be eligible for cancellation of removal.  Additionally, non-citizens who have a close family member (spouse or child) who is a US citizen or Licensed Permanent Resident pay be able to get an "immediate relative" or "preference" visa.  Non-citizens who have been victim's of crimes or abuse might also be eligible for visa relief.  Depending on the conditions of the non-citizen's home country, eligibility for a asylum or protection per the Convention Against Torture may be possible.

US Immigration laws are as complex as they are harsh.  Criminal cases for non-citizens require special care and attention.  If you are facing a criminal conviction, and are concerned about possible immigration consequences, contact our office for a free consultation.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
[email protected]
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

---