Criminal Convictions That Can Result in Deportation
August 28, 2013
For individuals seeking entry or lawful status in the U.S., an admission or proof of criminal conduct could be sufficient for a finding of inadmissibility, whether as an immigrant or nonimmigrant. Individuals who are already admitted in the U.S. generally need a conviction to be considered deportable on criminal grounds.
Either way, they could find themselves in removal proceedings and ultimately deported to their home country and away from their family in the U.S., which is why deportation is sometimes seen as a worse punishment than imprisonment.
An alien may be deported for conviction of a crime involving moral turpitude committed within five years of admission and which carries a possible sentence of at least one year. Conviction of multiple crimes involving moral turpitude also makes one deportable regardless of when they were committed and whether they resulted from a single trial, as long as they did not arise out of a single scheme of misconduct.
Crimes involving moral turpitude are those that are “inherently base, vile or depraved, and contrary to the accepted rules of morality.” They include crimes against persons (e.g., assault and murder); crimes against property (e.g., robbery); sexual offenses; and crimes related to fraud (e.g., forgery and tax evasion). However, an alien found inadmissible or deportable on this ground may be eligible for relief such as waivers and cancellation of removal.
Aggravated felonies include some fifty general classes of crimes, including murder, rape, sexual abuse of a minor, illicit trafficking in controlled substances or in firearms, and crimes of violence for which the term of imprisonment is at least one year.
To be an aggravated felony, the crime of violence must involve the use or threat of physical force against the person or property of another, or by its nature involves substantial risk that physical force may be used in the course of committing the offense. Kidnapping, stalking, sexual assault and third degree assault, are examples of crimes that have been held by courts to be crimes of violence.
Offenses involving theft and burglary may constitute an aggravated felony if the term of imprisonment is at least one year. On the other hand, in a fraud and deceit offense the length of imprisonment is not what makes it an aggravated felony but rather the elements of the offense and the dollar amount of the victim’s loss, which must exceed $10,000.
Unlike crimes of moral turpitude, an aggravated felony conviction bars many forms of relief, including asylum, cancellation of removal, and voluntary departure. An alien convicted of an aggravated felony and is physically removed from the U.S. also becomes permanently inadmissible, although there is waiver for this particular ground.
In most deportability grounds, the DHS must prove “conviction”. Conviction for immigration purposes means a formal judgment of guilt of the alien entered by a court. If the adjudication of guilt has been withheld, the judge or jury must have found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered to be imposed some form of punishment, penalty or restraint on the alien’s liberty.
Under certain circumstances, however, conviction is not even needed to subject the alien to removal. Mere admission of criminal activity is enough if certain factors are met. First, the conduct must constitute a crime under the law of the place where it was committed. Second, the noncitizen must admit to conduct that constitutes moral turpitude. Third, the alien must be provided with a definition of the crime before he can make a valid admission to a crime of moral turpitude or involving a controlled substance. Finally, the admission must be freely made and voluntary.