IMMIGRATION IMPLICATIONS FOR CRIMINAL CONVICTIONS

By Martin Miller

Congressional changes enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) resulted in draconian consequences for foreign nationals living legally in the United States as lawful permanent residents who are convicted of a variety of criminal offenses. IIRIRA expanded the definition of aggravated felony under the Immigration and Nationality Act (INA) 8 U.S.C.A. Sec. 1101, took away the right for convicted aggravated felons to apply for relief from deportation under 212(c) of the INA, expanded the definition of conviction to include deferred adjudication, and made all these changes retroactively applicable.

AGGRAVATED FELONIES

Historically, legal permanent residents convicted of certain criminal offenses, including aggravated felonies, could apply for relief from deportation under 212(c) of the INA.  This “pardon” from deportation was decided by an immigration judge and was based on a variety of factors, including rehabilitation, lack of prior criminal history, length of time in the United States and family ties.  As a result of IIRIRA, legal permanent residents convicted of aggravated felonies are automatically deportable, even if the person has lived his entire life in the U.S., has a spouse and children who are U.S. citizens, and has no prior criminal history.

The expanded list of aggravated felonies is defined in 101(a)(43) of the INA, 8 U.S.C.S. Sec. 1101(a)(43).  It includes  murder, rape, or sexual abuse of a minor; drug trafficking, including possession with intent to deliver and conspiracy; money laundering; crimes of violence where a prison sentence of one year or more is imposed; a theft offense where a prison sentence of one year or more is imposed; managing, controlling, or supervising a prostitution business; fraud involving losses over $10,000; alien smuggling; and commercial bribery, counterfeiting, or forgery where a prison sentence of one year or more is imposed.

A suspended prison sentence is considered imposed under the INA. 8 U.S.C.S. Sec. 1101(a)(48)(B).  Thus, someone convicted of aggravated assault, who received a sentence of one year TDC suspended for one year probation is considered an aggravated felon for being convicted of a crime of violence for which a sentence of one year or more imprisonment is imposed.

Besides expanding the list of aggravated felonies, IIRIRA expanded the definition of conviction to include deferred adjudication, 8 U.S.C.S. Sec (a)(48)(A).  As a result, an 18-year-old defendant who takes a deferred adjudication for a first-time offense of possession with intent to deliver a one-ounce bag of marijuana is automatically deportable as an aggravated felon.

OTHER DEPORTABLE OFFENSES

Besides aggravated felonies, Section 237(a)(2) of the INA, 8 U.S.C.S. Sec. 1227(a)(2) lists other deportable offenses.  These offenses include crimes involving moral turpitude (CIMT) that carry a potential sentence of one year or more, committed within five years of the person acquiring permanent residence; multiple convictions for crimes involving moral turpitude, drug possession offenses, except for a one-time possession of 30 grams or less of marijuana; unlawful carrying of a weapon; domestic violence offenses; and violations of protection orders.

There is no laundry list for what offenses constitute crimes involving moral turpitude.  Simple assaults usually do not constitute a CIMT (though a domestic violence offense is a separate ground for deportation).  Theft or fraud offenses are crimes involving moral turpitude.  Thus, a shoplifting offense is a CIMT.  However, for a first-time CIMT to be a deportable offense, it must carry a potential sentence of one year or longer (thus excluding offenses less than a Class A misdemeanor) and must have occurred within five years of the person receiving his legal permanent residency in the U.S., 8 U.S.C.S. Sec. 1227(a)(2)(A)(i).  Conversely, someone convicted of multiple CIMTs is deportable regardless of the severity of the offense and how long after receiving his or her residency the second offense occurred, 8 U.S.C.S. Sec. 1227(a)(2)(ii).

For example, a person with no prior criminal history convicted of a class A misdemeanor theft more than five years after getting legal permanent residency is not deportable (one CIMT occurring more than five years after acquiring residency).  Nor is a person who just received their permanent residency and pleads out to a first-time B misdemeanor shoplifting offense deportable (B misdemeanors do not carry a potential sentence of more than one year).  However, if the same person picks up a second B misdemeanor shoplifting or other theft offense two years later, he or she is deportable.

RELIEF FROM DEPORTATION

Unlike aggravated felonies, persons convicted of offenses under 237 of the INA are not automatically deportable and may be eligible for relief from deportation (now called removal) through Cancellation of Removal, 8 U.S.C.S. Sec. 1229b(a).

To be eligible for Cancellation of Removal, a person must have been legally in the United States for seven years prior to the time the offenses occurred, with the last five years being as a lawful permanent resident, and he or she must not have been convicted of an aggravated felony.  In analyzing whether a client who has been a permanent resident for seven years is eligible for Cancellation of Removal, it is critical to first establish that he or she was previously convicted for an offense that would have interrupted his or her seven years as a lawful permanent resident.

Martin Miller,
Managing Attorney
Criminal Department

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