Criminal convictions for non-US citizens can mean the end
of their American dream; even Maryland’s Probation Before Judgment is
considered a conviction for immigration purposes. But not all offenses are
deportable offenses, and not all convictions lead to deportation court. When
can a criminal lawyer advise a client to accept a plea bargain and when is
a full trial advisable?
First, determine if the client will be classified as an aggravated
felon under immigration law. This classification effectively bars the alien
from any form of relief from the accusation that he or she is deportable, as
defined by the Immigration and Nationality Act §101(a)(43). It is with
the classification of aggravated felon that sentencing can sometimes be particularly
important. Creative sentences are irrelevant to crimes such as murder, rape,
money laundering, racketeering or prostitution.
Creative sentencing can help avoid classification as an aggravated
felon in crimes such as theft, gambling, bribery and even crimes of violence.
However, some are still considered crimes of moral turpitude and therefore
could still lead to charges of inadmissibility or deportability.
Once the client has managed to avoid the aggravated felony
label, determine whether or not the crime is one of moral turpitude. The statutes,
however, do not clearly define moral turpitude. Theft, for example, is considered
a crime of moral turpitude and is also on the list for aggravated felonies.
Therefore, the client might avoid being labeled an aggravated felon by convincing
a judge to hand down a sentence of 360 days. However, it should be noted that
this does little to save the client from deportation if the crime was committed
within five years of admission to the United States and statutorily has a potential
sentence of incarceration of up to one year (which is how most misdemeanor
theft statutes are worded).
If the client has been here for more than five years after
being admitted, make sure that the client has no other convictions, as convictions
for two crimes of moral turpitude render a client deportable. Moreover, even
if the client has no previous convictions, a conviction for a crime of moral
turpitude committed more than five years after admission makes him inadmissible
if he decides to travel abroad.
Moral turpitude crimes are malum in se, not malum
prohibitum. Therefore, statutory construction is the most important element
of the analysis. The law under which the alien is convicted, rather than
the facts of the case, determines whether or not there is a crime of moral
turpitude. A charging document is referred to only if the statute under which
the alien was charged has two parts, one of which is not a crime of moral
Finally, look for crimes that, while neither aggravated felonies
nor necessarily crimes of moral turpitude, still make a person deportable upon
conviction. Sentencing, for example, is irrelevant for a crime of domestic
violence; a conviction of domestic violence, stalking, violating a protective
order, child abuse, neglect or abandonment renders a non-citizen deportable
at any time. Likewise, a conviction for any firearm offenses makes someone
The checklist below will help any criminal attorney spot
the appropriate issues.
1) Is the client here in legal status? (If not, any conviction
will lead to deportation hearings if on no other charge than being here illegally.)
2) If the client is in legal status, is he being accused
of a crime which, if convicted, would make him an aggravated felon?
3) If yes, is it a crime in which a plea bargain with sentencing
recommendation might help avoid the aggravated felon category?
4) Is the client being accused of a crime of moral turpitude?
5) If yes, did he commit the crime within five years of
being admitted to the U.S., and does the statute state that the possible
sentence can be up to and including one year?
6) If it is a crime of moral turpitude but was committed
after the client has been here five years (legally), is he willing to never
travel outside the U.S.?
7) If it is a crime of moral turpitude but was committed
after the client has been here five years (legally), will it be the client’s
second conviction for a crime of moral turpitude?
8) Finally, is it a crime in which a conviction will make
the client deportable regardless of when it occurred or what sentence is
given because it is either a domestic violence crime or firearm offense?
Eugenia Korsak Ordynsky has been practicing immigration law for more than
10 years in the Baltimore and Washington area. Her offices are located in downtown