Legal vs. Illegal Immigrants – When does a criminal conviction mean likely deportation and when the outcome of a criminal case doesn’t matter

Immigration and Deportation are hot button issues and will likely remain in the news for years and possibly decades.  While members of the media frequently use the word immigrate, they often fail to distinguish between those who have legal and illegal status in the United States.  There is obviously a major difference and the law uses the following terms to distinguish the legal status of individuals in this country. 

The Most Common Immigration Status Terms

Documented Immigrant (Legal Alien) — Is any person who is permitted under the law to be in the host country. This is a very broad category which includes those with travel visas, foreign tourists, registered refugees, temporary residents, and permanent resident aliens

Undocumented Immigrant (Illegal Alien)— Is any person who is subject to immediate deportation because their presence in the United States is in violation of our law.  (Title 8 – Aliens and Nationality
Chapter 12 – Immigration and Nationality, Subchapter II – Immigration, Part IV – Inspection, Apprehension, Examination, Exclusion, and Removal, Sec. 1227 – Deportable aliens

The Difference is Important!

This information applies to LEGAL Immigrants and not those who illegally entered the country regardless of their reason.  Legal immigrants have a different status and have specific protections and rights that illegal immigrants do not maintain within the United States.

Our law firm represents all persons regardless of their status but it is very important to understand this difference for purposes of this blog article.  Illegal persons have the presumption of innocence like any citizen or legal resident charged with a crime.  The difference, however, is that their status alone subjects them to deportation and removal, regardless of the outcome of their criminal case

When Are Criminal Convictions Legal Grounds for Deportation of Documented (Legal) Aliens

The two main categories of crimes that can put a documented person at risk of being deported are aggravated felonies and crimes involving moral turpitude. The Immigration and Nationality Act also enumerates certain crimes that serve as independent grounds of deportation, even if they are not classified in one of those two categories.

Aggravated Felonies

If a legal immigrant or alien or person commits an aggravated felony, he or she will likely be deported from the U.S., and likely not permitted to return thereafter. Aggravated Felonies include serious crimes, such as murder, rape, many sex crimes involving minors, and drug trafficking, weapons trafficking, but also fraud involving at least a certain amount, money laundering or and even tax evasion. 

In addition, if a legal immigrant received a state sentence of at least one year for a conviction of theft, perjury, or any violent crime, this will also be considered an aggravated felony.

Crimes Involving Moral Turpitude

Unlike Aggravated Felonies, this category of crime is much more of gray area. This category of crime includes crimes that involve fraud, theft, dishonesty, or an intent to harm people. Crimes involving moral turpitude thus might include relatively common offenses, such as domestic violence, forms of assault, and even Drunk Driving (DUI/DWI) if it caused injuries.

There isn’t a specific list of crimes involving moral turpitude.  In some cases, a legal immigrant will be able to argue that a crime should not be considered a crime involving moral turpitude. This may be defense if a criminal statute is written so broadly that it would cover conduct that would not be considered moral turpitude.  The issue is of whether a crime involves moral turpitude depends on the statute’s language of the, rather than the actor’s criminal intent! 

Exceptions and Waivers for Crimes Involving Moral Turpitude

A crime may not be necessarily considered a crime of moral turpitude if it fits within an exception for petty offenses. This applies when the penalty for the crime could not exceed one year of imprisonment, and the legal immigrant did not actually serve six months or more in prison. Minor assault and theft crimes would fit within this exception.  In addition, Section 212(h) of the Immigration and Nationality Act provides the possibility of a waiver for certain legal immigrants who do not pose a threat to national security.

Green card holders must meet additional requirements to get a waiver, including having held continuous legal status in the U.S. for at least seven years before the start of the deportation proceedings. In addition, they also must never have committed any aggravated felonies.

If a legal immigrant or alien committed a crime involving moral turpitude more than 15 years before he or she applied for a green card, the judge can grant this type of waiver at their discretion. This is also true if the legal immigrant committed a crime related to prostitution. 

Legal Immigrants who do not fit into any of these exceptions or waivers must prove that their deportation would result in an extreme hardship to a spouse, parent, or child who is a U.S. citizen or green card holder. A legal immigrant can also obtain a waiver if he or she can show that they have undergone rehabilitation, and the crime was not extremely violent or malicious in the case of domestic violence. 

If you are a legal resident and are charged with a crime, it is important that your criminal defense lawyer discuss possible immigration consequences for a conviction

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