Criminal Grounds of Removal
Certain criminal convictions can subject all non-citizens to removal proceedings. All non-citizens, including non-immigrant status holders (H-1B, H-4, L-1, L-2, R-1, R-2, F-1, F-2, etc.), Legal Permanent Residents, or Resident Aliens can be removed from the United States as a consequence of their criminal convictions. Some of the deportable crimes are specified and others fall into moral turpitude crime and/or or aggravated felony.
The criminal grounds of deportability generally require that a “conviction” exist. There is a statutory definition of conviction for immigration purposes. State law does not determine whether a state disposition will be considered a conviction for immigration law purposes. For example, dispositions involving drug treatment court, deferral of prosecution, expungement, and prayers for judgment continued may be treated as convictions for immigration purposes.
A noncitizen is deportable if convicted of an aggravated felony any time after admission. The label, “aggravated felony” is an immigration law term, and is somewhat misleading, as an offense classified as an “aggravated felony” does not have to be either “aggravated” (as that term may be commonly understood) or a “felony” under state law. As a result, the term may include some state misdemeanors, such as maintaining a place of prostitution and misdemeanor possession of marijuana if the defendant has a prior drug conviction.
A person convicted of an aggravated felony has very limited options when it comes to avoid deportation or removal from the United States.
Aggravated Felonies Regardless of Sentence
- Sexual abuse of a minor
- Drug trafficking, firearm trafficking, and certain other firearm offenses,
- Offenses involving demands for ransom
- Child pornography
- Prostitution business
- Slavery or involuntary servitude
- National security offenses
- Alien smuggling offenses, with an exception for spouse, parents, and children.
- Illegal reentry after being previously deported for an aggravated felony,
- Miscellaneous federal offenses, including racketeering and certain gambling offenses.
- Offenses relating to failure to appear for service of sentence if the underlying offense is punishable by five years or more imprisonment and offenses related to bail jumping if underlying offense is a felony punishable by two or more years of imprisonment.
Aggravated Felonies Triggered by a One-Year Term of Imprisonment (Active or Suspended) or More
Crimes of violence, theft or burglary offenses (including possession or receiving of stolen property), passport or document fraud offenses, Offenses related to counterfeiting, forgery, commercial bribery, trafficking in vehicles with altered identification numbers, obstruction of justice, perjury or subornation of perjury, and offenses relating to bribery of a witness.
Aggravated Felonies Triggered by More than a $10,000 Loss
Offenses involving fraud or deceit with a loss to the victim of more than $10,000, money laundering offenses involving more than $10,000, and tax evasion with a loss to the government of more than $10,000.
Conviction for a Crime Involving Moral Turpitude
A noncitizen may be deportable for a conviction of a crime involving moral turpitude (CMT) if it was committed within five years of being admitted to the U.S. and the crime is punishable by 1 year in prison. Multiple convictions for crimes of moral turpitude, not arising out of a single scheme, committed after admission to the U.S. makes a noncitizen deportable without regard to its timing or the term of punishment that may be imposed.
As a general rule, a crime involves “moral turpitude” if it is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. The CMT label covers a broad category of criminal offenses and generally includes: offenses in which either an intent to steal or defraud is an element (such as theft and forgery offenses), many aggravated assaults (depending on whether infliction of bodily injury is an element) and most sex offenses.
Crime of Domestic Violence, Stalking, Child Abuse, Child Neglect, or Child Abandonment, or a Violation of a Protective Order
A noncitizen is deportable if convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment, whether felony or misdemeanor. These grounds of deportability only apply to convictions or violations occurring after September 30, 1996.
Crime of Domestic Violence. A crime of domestic violence has two main requirements. First, the offense must be a crime of violence as defined in 18 U.S.C. § 16. Second, the offense must be against a current or former spouse, co-parent of a child, a person with whom the defendant is or has cohabited as a spouse, any other individual similarly situated to a spouse, or other individual protected under federal, state, tribal, or local domestic or family violence laws.
Violation of a Protective Order. A noncitizen is also deportable if enjoined by a protective order and found by a civil or criminal court to have violated the portion of a protective order that protects against credible threats of violence, repeated harassment, or bodily injury.
Under certain circumstances, the grounds of deportability for a crime of domestic violence, stalking, and violation of a protective order may be waived by immigration authorities when the defendant has been battered or subjected to extreme cruelty and is not and was not the primary perpetrator of violence in the relationship. If these circumstances seem to apply to a noncitizen client, any documentation in court that the particular incident was part of a larger pattern of abuse against the client may be helpful to that client in future immigration proceedings