Those facing immigration consequences from being arrested, being charged with a crime and / or having a conviction on one’s record often call our office for information asking if deportation proceedings will commence against them.
They also often ask if U.S. Immigration and Customs Enforcement (ICE) and / or the Department of Homeland Security will place a no-bail hold on a friend or loved one in custody.
We also often receive calls asking if expungement of a conviction will help avoid deportation. Such conversations necessarily then lead into what convictions constitute crimes of moral turpitude and aggravated felonies.
Complicating this, often such questions are asked by someone whose ability to speak English is developing, so it is unclear even what is being asked.
To each of these questions, we certainly can offer anecdotal comments based on knowledge we have cobbled together from what immigration attorneys have told us or what clients have told us, but this is not reliable always or even sound, let alone not outdated legal advice.
We like to emphasize that while Greg Hill & Associates is not an immigration law firm, we do appreciate that suffering what is known as an aggravated felony can result in deportation. For example, in In Kawishima v. Holder
, the US Supreme Court held that the Kawishima’s tax violations constituted aggravated felonies under Section 101(a)(43)(M)(i) of the Immigration and Nationality Act (“INA” or “Act”). That section states that an aggravated felony is a crime involving fraud or deceit in which the loss to the victim exceeds $10,000. This was under the Immigration & Nationality Act. We also understand that certain misdemeanors under California law, such as misdemeanor domestic violence (Penal Code § 273.5) can paradoxically constitute aggravated felonies under the Immigration and Nationality Act.
Similarly, in the area of drug offenses, we know that a conviction for any state law offense relating to a federally defined controlled substance is an automatic ground for deportability (8 USC § 1227(a)(2)(B)(ii)) or inadmissibility (8 USC § 182(a)(2)(A)(i)(II)). Moreover, rehabilitative relief, including PC 1000 and Penal Code § 1203.4 (expungement), is only available for convictions occurring PRIOR to the decision in Nunez-Reyes v. Holder
(2011) 646 F.3d 684, when the Ninth reversed itself on earlier decisions that said successful completion of diversion removed immigration consequences. Indeed is a very complex area of the law since our usual sweethearts, DEJ and Prop. 36 dismissals, are considered convictions for federal/immigration proceedings.
Similarly, we understand that the starting point on determining what misdemeanor offenses constitute crimes of moral turpitude is People v. Wheeler
(1992) 4 Cal.4th 284. We understand that evidence of the conduct must be introduced through live witnesses, which is often a big issue in domestic violence cases when the alleged victim leaves the country and is not available for trial.
We also appreciate that a conviction for Vehicle Code § 23103, reckless driving, can be considered a crime of moral turpitude although most clients prefer a conviction for violating 23103 over DUI due to the fact that a reckless driving conviction avoids the ignition interlock device requirement from the DMV.
However, for someone with immigration issues, a “wet reckless” is a conviction for conduct involving willful and wanton disregard for others, which is a crime of moral turpitude (Moral turpitude in immigration law is not necessarily the same as in Calif. state law.) 8 USC 1227(a)(2)(i) and (ii).
Likewise, a conviction for vandalism can be a conviction for a crime of moral turpitude. People v. Campbell
(1994) 23 Cal.App.4th 1488, 1492-1495).
Yet we have no training or relevant experience in immigration law. Instead, we suggest that such questions be directed to a properly qualified immigration lawyer or immigration law firm. We do this because we appreciate that immigration law is a complex enough field, with changing laws and constantly evolving interpretations of statutes (as well as new statutes), that reliable advice that has practical benefit should come only from an attorney who practices immigration law. That is not us.
However, we recognize that a “no file,” meaning the prosecution chooses not to file a case, and dismissal of charges must always help one whose immigration status is in jeopardy due to a pending criminal case. We can help achieve such results, as criminal defense attorneys.
In that regard, we present the following articles to highlight why having high quality legal representation is vital when one faces immigration consequences due to an arrest, a pending criminal case or even seeking post-conviction modification of probation or a sentence.