States immigration laws are complex and difficult. A non-U.S. citizen (non-USC)
facing a criminal matter will need both a criminal defense lawyer and an
immigration lawyer. Once the criminal issue is resolved, the non-USC may have
to resolve an immigration issue.
Q: I’ve been accused of a crime. How do I know if I’m a U.S. citizen?
A: Generally, if you were not born in the U. S. or have not
otherwise received official citizenship status, you are not a citizen. A few exceptions exist if you have a parent
or even a grandparent who is a citizen.
What if I don’t have legal status in the U.S.?
status” describes the way the U.S. views someone entering its borders from
another country. Normally, a visa will allow you, as a non-USC, to seek
permission to enter the U.S. at a port of entry, where you are inspected and
admitted by an immigration officer. The officer will determine how long you can
stay based upon the visa you have been issued.
If you entered without inspection, or you entered legally, but have
stayed longer than a visa permits, you may not have legal status.
If you are non-USC and you are
arrested, a local law enforcement agency or the Customs and Border Protection
(CBP) may place a “detainer” on you. This detainer allows local law enforcement
or the CBP to hold you until someone from the U.S. Immigration and Customs
Enforcement (ICE) arrives and takes you into custody.
If I am not a USC and I plead guilty to something, will I be forced to
leave the U.S.?
should consider the possible effects of taking a plea deal or going to trial. A
carefully crafted plea may help you avoid deportation proceedings. A criminal
defense attorney must tell you about the immigration consequences of a criminal
plea. The particular crime you are convicted of will determine whether or not
deportation proceedings will be started.
What is a “conviction” for immigration purposes?
receive a conviction, a judge must find you guilty of the charges against you
and order some form of punishment, penalty or restraint of your freedom. You might
also receive a conviction for violating the terms of probation or failing to
follow a court order. For immigration purposes, the immigration court can only look
at your conviction record. A guilty plea
is considered a record of conviction. This is true even if you enter and
successfully complete a “treatment in lieu of conviction” or pretrial program
and your criminal case is dismissed.
I was convicted of an offense, but I completed my probation and my
conviction was expunged. Can I still be deported?
Yes. Your conviction still
counts against you even if you were put on probation and your record was
expunged. Expungement may negatively affect possible post-conviction relief
motions if you attempt to vacate your original plea.
Q: What kinds of offenses can get me deported?
two main types of crime that can result in your deportation are aggravated
felonies and crimes of moral turpitude.
Immigration and Nationality Act’s (INA) definition of “aggravated felony”
includes a number of crimes that are not commonly considered either “felonies”
or “aggravated.” A criminal defense attorney working with non-USC clients must
fully understand the INA definition of “aggravated felony” to provide correct
advice about offenses that can result in deportation.
to the U.S. Citizenship and Immigration Services (USCIS), a crime of moral
turpitude (CMT) is inherently base, vile, or depraved, contrary to social
standards of morality and done with a reckless, malicious or evil intent. Examples
of CMT’s are murder, voluntary manslaughter, rape, statutory rape, domestic
violence, fraud and all theft offenses. It is a broad and subjective term that
can be used for any crime that USCIS considers offensive.
If the immigration court finds that an
offense I’ve been convicted of means I can be removed from the U.S., what do I
you are a non-USC and have been placed in removal proceedings, you may be
eligible for relief from removal, even if a plea deal is not successful. Relief
can include, but is not limited to, adjustment of status, temporary protected
status or deferred action, or the removal may even be cancelled. You also may
be eligible for asylum or protection under the United Nations Convention
Against Torture. However, depending on the crime, you may not be eligible for
certain forms of relief. Since much is at stake for you as a non-USC, the
criminal defense attorney and the immigration attorney must work hand in hand
once you face a criminal charge.
“Law You Can Use” column was provided by the Ohio State Bar Association
(OSBA). It was prepared by Independence attorney Jason T. Lorenzon of Lorenzon
Law LLC. The column offers general information about the law. Seek an
attorney’s advice before applying this information to a legal problem. For more
information on a variety of legal topics, visit the OSBA’s website at www.ohiobar.org.
Labels: crime, criminals, deportation, immigration