Convictions that Cause Deportation, Removal, Inadmissibility

In our experience representing clients who are not U.S. citizens, the client is often most concerned with being jailed or sent to prison and then “picked up by immigration,” leading to deportation.  This is a legitimate concern, particularly in felony cases where prison time is possible.

However, often overlooked are the adverse immigration effects of convictions or even deferred entry of judgment resolutions with no jail or prison time. 

To understand and appreciate this, it is important to understand that the Immigration and Nationality Act (INA) separates removal grounds into two general categories: 1) inadmissibility grounds codified at 8 U.S.C. § 1182(a) and 2) deportability grounds codified at 8 U.S.C. § 1227(a).  Both inadmissible and deportable aliens are considered “removable” aliens.

Determining whether an alien is inadmissible or deportable depends on whether the alien was admitted to the United States, for example, whether the alien lawfully entered the United States after inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A).

An alien who was not admitted to the United States is subject to removal on one or more grounds of inadmissibility.  Removability based on a plea depends on whether such a plea results in a “conviction,” as that term is defined in the INA.  Deferred adjudications, for example, are generally considered “convictions” for immigration purposes.  It is important to understand also that any reference in the INA includes the period of incarceration or confinement ordered by the judge, as well as any suspension of the imposition or execution of that term or imprisonment or sentence, i.e., while on probation with the term of prison or jail suspended.

In contrast, an alien who was lawfully admitted to the United States and thereafter commits a crime may be subject to removal based on one or more grounds of deportability. 

Any alien convicted of a crime of moral turpitude is deportable under the INA when the potential term of imprisonment is one year or longer (i.e., a felony) and the offense was committed within five years of the alien’s admission to the United States. 8 U.S.C. § 1227(a)(2)(A)(i); see also 8 U.S.C. § 1255(j).  Crimes involving moral turpitude can also render an alien deportable or inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(1).

It is notable that driving under the influence (DUI) without a license may be considered morally turpitudinous.  However, drunk driving convictions per se do not involve moral turpitude.  In re Torres-Varela (BIA 201) 23 I. & N. Dec. 78 (en banc) and Singh v. Waters (9th Cir 1996) 87 F. 3d 346.  However, a DUI conviction may be considered by immigration authorities, including immigration and federal court, in deciding whether to grant relief as a matter of discretion.  Kouljinski v. Keisler (6th Cir. Oct. 16, 2007) 505 F. 3d 535 (immigration judge may consider noncitizen’s three convictions for driving under the influence in denying an application for asylum as a matter of discretion).

Aggravated felonies are deportable under 8 U.S.C. § 1227(a)(2)(A)(iii).  A crime for which the maximum possible term of imprisonment is one year or less and the defendant was not sentenced to more than six months in prison is not an aggravated felony.

Multiple DUI convictions may lead to the denial of renewal of a green card which may result in deportation. 

 

A controlled substance conviction triggers deportation and inadmissibility.

The consequences to DACA recipients are even more clouded due to the upheaval in the DACA program and litigation concerning its continued viability.  However, it is generally understood that suffering a DUI conviction disqualifies one from DACA eligibility. 

One cannot become a naturalized U.S. citizen while on probation for any crime.  8 C.F.R. § 316.10(c)(1).

Furthermore, a person is disqualified from some forms of immigration relief if he or she has either three (amnesty) or two (temporary protected status) misdemeanors.

In closing, it is important to understand that the rules in immigration are constantly changing, so it is suggested that defendant consult with an experienced immigration attorney before entering into any plea agreement.