Monday, November 19, 2012

Non-Citizens Charged with Criminal Offenses Face Complex Laws

United 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. 

Q:        What if I don’t have legal status in the U.S.?
A:        “Legal 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.  

Q:        If I am not a USC and I plead guilty to something, will I be forced to leave the U.S.?
A:        You 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.

Q:        What is a “conviction” for immigration purposes?
A:        To 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.

Q:        I was convicted of an offense, but I completed my probation and my conviction was expunged. Can I still be deported?
A:        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?
A:        The two main types of crime that can result in your deportation are aggravated felonies and crimes of moral turpitude. 
            The 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. 
            According 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.

Q:        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 do?
A:        Assuming 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.

This “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

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