Immigration Consequences of Criminal Charges

There are two main ways that criminal convictions can impact a person’s immigration status – inadmissibility and removability (meaning “deportability”). Below is more information on what each of these terms means and what you should do if facing either one. To learn more or discuss your immigrant status, call and schedule a consultation with a DC immigration attorney.

Inadmissibility

If a person is inadmissible to the U.S., it means that they’re not allowed to gain admission to the US. That could be admission in the form of receiving a green card within the United States or applying to change from one status to another from within the U.S. Another way that it may apply to you is if you leave the country – even if you’re a green card holder – and you are reentering. Finally, if you’re abroad and you’re applying for any other kind of immigration status to enter the United States you may be subject to the grounds inadmissibility.

Removability (Deportability)

The second way that a criminal conviction can impact your immigration status is by making you deportable. The technical word is actually “removable,” but it applies who people who are in lawful immigration status and are not doing anything to try to apply for a new status or to enter the country from abroad. They are already here legally but they are rendered deportable or removable because of the criminal conviction. It can also apply to people who have been lawfully admitted at some point but have subsequently fallen out of legal status.

Impact of Criminal Convictions on Your Family

In some cases it may, specifically when your family is dependent upon your immigration status for their own status. So if for instance your family was here as the derivative on your H1B visa and you committed a criminal act which violated your own status, then, your family’s legal status may be in jeopardy as well.

U Visa Waivers and Criminal Convictions

U visas carry a very broad waiver with them. You’re eligible to apply to waive almost any criminal offense. Granted, these are not automatic waivers so it doesn’t mean just because you qualify for the U visa you’ll also qualify for the waiver. Basically, you need to submit enough discretionary evidence to show that the positive factors in your case should outweigh the criminal conviction. So, the more serious the conviction, the more extensive positive discretionary evidence you’ll need.

If you are able to obtain the waiver along with the approved U visa, it will essentially waive the crime from your record forever. So, it can be a very important last-ditch option for people who have already been convicted of serious offenses and don’t think they have other options.

Contact An Immigration Attorney If You’re Facing Charges

The biggest mistake that people often make is not consulting with an immigration attorney prior to accepting a criminal plea. In many cases, the best option for an individual on the criminal side for may be to avoid jail time or to get the shortest sentence possible or to possibly avoid fines.

However, this same option may not be the best decision from an immigration standpoint. Sometimes it’s better to accept the larger jail sentence or more serious consequences in the criminal realm to avoid immigration consequences. Very often, the immigration consequences of a criminal offense can be much more serious than the criminal consequences.

If you are anything other than a United States citizen, and this includes legal permanent residents as well, you should definitely discuss the potential immigration consequences of a criminal charge with both an immigration attorney as well as a criminal attorney. More and more criminal attorneys are embracing their responsibility to advise people about immigration consequences, but in the past it was a widespread concern. People would just receive no warning whatsoever from their criminal attorneys, or incomplete or even incorrect advice about the immigration consequences of a certain crime, and then would later come to find out that the conviction carried a much weightier immigration consequence.

In general, it’s better to be safe than sorry. If you have any doubt about the immigration consequences of a criminal offense, it’s better to consult with an immigration attorney at the imitation of your criminal proceedings because there maybe something that can be done before a conviction is even on the horizon.

Immigration Authorities and Your Criminal Case

How immigration authorities become involved in a case is a very case-specific determination. Sometimes ICE can track you down by just showing up at a criminal hearing when a person is actually convicted. The person can be detained at that point. That is a bit uncommon these days, but it’s possible.

The most common way to be detained is by committing a crime that violates your immigration status and being placed into criminal detention as a result. If you’re in criminal custody, ICE does rounds and they try to check jails and prisons every 48 hours for new admissions. They will check your immigration status to see whether or not you are a citizen and whether the crime that you have been convicted of or charged with has violated your immigration status.

At that point they can put you into immigration proceedings. In fact, they can place you into removal proceedings even if the crime you have been charged with is very minor, if through the jail check they determine that you’re here unlawfully.

Prosecutorial Discretion in Immigration Cases

In some rare cases a prosecutor could choose to exercise discretion not to initiate removal proceedings against the person even if they did have an aggravated felony. But that is actually against all policy memoranda and advisories from the executive branch on the exercise of prosecutorial discretion. So it’s very, very rare that a person with an aggravated felony would receive favorable discretion from the government.

Aggravated Felonies and Moral Turpitude

There are certain myths and misconceptions people have about aggravated felonies and crimes of moral turpitude, and how these offenses can impact your immigration status.

Minor Drug Offenses Can Be Aggravated Felonies

One example is when someone might have a seemingly minor drug offense that doesn’t seem like it would carry very harsh immigration consequences. However, because of the nature of the crime it can be considered an aggravated felony. Any drug offense outside 30 grams or less of marijuana can have huge immigration repercussions.

Immigration Consequences May Be Harsher Than You Expect

Other offenses involving fraud or even firearm possession can fall under the aggravated felony provisions of the INA, which can carry the same consequences as any other aggravated felony like a rape or serious assault.  The consequences for certain offenses in the immigration world can be very surprising to people because they can seem very out of step with what people feel is a just penalty for an offense.

The Law Is Constantly Evolving

The main reason it exists is because the law is so complex and unclear as far as what constitutes an aggravated felony. It’s something that’s always evolving with case law, which I think leads to people being simply uneducated about what the law is. Another problem is that often criminal attorneys can be uneducated or unaware about the immigration consequences of the criminal offense and so sometimes people are improperly or incompletely advised by their criminal attorneys.