Bar Bulletin

September, 2004

 Bar Bulletin Focus

Immigration Law    

The Expanding Criminal Grounds of Removal
~A closer look at aggravated felonies and crimes of moral turpitude~

By Bryan Perry

Under the Immigration and Nationality Act, aliens (non-citizens) who are convicted of crimes are often subject to removal (deportation) from the United States. Depending on the crime committed, even a small misdemeanor can render a non-citizen deportable from the United States.

After September 11, 2001, and the current administration’s war on terror and campaign to improve Immigration Service monitoring capabilities, the likelihood of a non-citizen being removed for even a minor conviction has greatly increased. Furthermore, Congress has expanded the grounds of deportability for non-citizens while at the same time narrowing the scope of relief that is available.

As Maryland’s immigrant population continues to grow, attorneys and judges are going to be grappling with cases that have immigration implications for some time to come. This article gives a brief overview of the major criminal grounds of removal and the forms of relief that may be available.

Under current immigration law, a non-citizen can be deported for a conviction of a number of criminal offenses. A conviction for immigration purposes is considered a formal judgment of guilt entered by a court or the entry of a plea of guilty or nolo contendere where the judge has entered some form of punishment or restraint on the person’s liberty.

While a guilty plea to some minor crimes will only lead to a short period of incarceration, a suspended sentence or probation for a United States citizen, the same guilty plea by a non-citizen can lead to deportation from the United States.

There are basically two categories of crimes that can subject a non-citizen to removal: crimes of moral turpitude and aggravated felonies. Crimes of moral turpitude involve behavior inherently base, vile or depraved. Examples would include fraud, theft, burglary, robbery, murder, rape, arson and like offenses. Conviction of an aggravated felony at any time after entry into the United States renders a non-citizen deportable. The only relief that would be available is a presidential or gubernatorial pardon. Additionally, the immigration service requires mandatory detention for anyone in removal proceedings that has been charged with deportability based on a conviction of an aggravated felony. Whenever possible, it is advisable in cases of aggravated felonies to plead down to a lesser included offense with a sentence of less than one year.

Current immigration law lists a wide array of crimes considered to be aggravated felonies for immigration purposes, and the number of crimes being added to the list continues to grow. As of this writing, the following are currently considered to be aggravated felonies:

Crimes of violence carrying a sentence of one year or more (even if it is suspended)

Drug crimes including drug trafficking and numerous possession convictions (a non-citizen can also be subject to deportability for being a habitual drug user)

Firearm and/or explosive trafficking and related offenses (simple firearm possession, however, is not considered an aggravated felony)

Any theft crime (including fraud) carrying a sentence is one year or more

Failure to appear

(Other) certain failure-to-appear offenses, obstruction of justice, perjury.

It is important to note that removal proceedings cannot begin until a conviction is final. Therefore, no removal proceedings can begin while there is a pending criminal appeal. Furthermore, a conviction that does not involve an on-the-record admission of guilt cannot be used for removal procedures.

In cases where relief is available, the available relief depends on the type of case and the non-citizen’s immigration status. The most common forms of relief available are voluntary departure (in which the non-citizen is allowed to leave the United States at their own expense), cancellation of removal and asylum. As stated earlier, none of these forms of relief are available to non-citizens convicted of aggravated felonies.

Cancellation of removal allows an immigration judge the discretion to cancel the removal of lawful permanent residents – non-citizens granted the right to reside permanently in the United States. This form of relief is only available to lawful permanent residents that have resided legally in the United States for at least seven years and have been a lawful permanent resident for at least five years prior to the service of the Notice to appear or the date the non-citizen committed any deportable offense. Asylum relief is available to non-citizens who fear persecution in their home countries. Asylum status also allows the non-citizen eligibility for permanent residence.

Once a decision on deportability is reached, a non-citizen will be permanently barred from returning to the United States as an immigrant. Because there are no second chances, never enter a plea before you and your client understand the immigration consequences of your actions.


Bryan Perry is an attorney with the Maryland Office of the Attorney General.

 

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Publications : Bar Bulletin: September, 2004

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