Understanding Criminal Defenses for Immigrants

Removal, formerly known as deportation, is the legal process that removes a non-U.S. citizen from the United States and transports them back to their country of origin.

A non-U.S. citizen may be subject to removal for various reasons, such as:

• Failing to obey the terms of their visa;
• Committing marriage or green card fraud; or
• Being convicted of a criminal offense. The most common reason for removal is generally due
• to a violation of an immigration law.

There are numerous cases in which the grounds for removal may be improper or incorrect. Such matters will require a non-U.S. citizen to prove why they have a legally valid reason to remain in the United States.

Additionally, there are some situations in which a non-U.S. citizen who is at risk of being removed from the United States may qualify for an exception or a waiver of removal. If a non-U.S. citizen is removed from the United States, they may not be able to return for a period of 10 years or longer. They could also potentially face other consequences.

Some of the most common reasons for deportation include the following:

• Abusing or Developing an Addiction to Drugs: A non-U.S. citizen who abuses or has become addicted to drugs may be removed from the United States. They may also be removed if they have been convicted of more than one drug-related offense;
• Committing Green Card Fraud: A non-U.S. resident who commits fraud, or enters into a fraudulent marriage with the intent to deceive an immigration officer in order to obtain a green card, may be subject to removal from the United States;
• Failing to Obey the Terms Of a Visa: Non-U.S. residents must obey specific requirements and conditions when they are temporarily living in the United States on a visa. Failing to comply with any of those requirements or conditions will be grounds for removal. An example of this would be how an immigrant who moves to a new residence in the United States must notify the USCIS within ten days from when they officially changed their address;
• Collecting Public Assistance: A non-U.S. resident may be removed if they require public assistance from the U.S. government within five years from the date that they first arrived. However, they may be able to show that they qualify for an exception, or under one of the waiver conditions;
• Being Convicted of Certain Crimes: A non-U.S. citizen who has been convicted of certain crimes may be subject to removal from the United States. This will be further discussed below, but some crimes that may be grounds for removal if convicted include:
  • Crimes of moral turpitude;
  • Aggravated felonies;
  • Domestic violence offenses;
  • Crimes involving the trafficking of drugs, humans, or weapons; and/or
  • Crimes involving sabotage, treason, sedition, or espionage against the United States; and
• Violating Immigration Laws: A non-U.S. citizen who violates immigration laws, such as lying about their immigration status or remaining in the country after their visa has been revoked, may face removal.

What Is The Deportation Process?

The process for removal is very similar to that of many court cases. The removal process will begin by receiving a Notice to Appear letter from the U.S. Immigration and Customs Enforcement (“ICE”) agency. This notice must also be filed with a local immigration court in order for it to be enforceable. A hearing will then be scheduled to appear before an immigration judge.

The judge may reschedule this hearing for a later date, or may schedule a separate hearing where the non-U.S. citizen will be allowed to present their claims for relief. A non-U.S. citizen may absolutely hire an immigration attorney to represent them during these proceedings.

After all of the scheduled hearings have ended, the judge will issue a decision on whether the non-U.S. citizen should be removed. If they approve the order for removal, the non-U.S. citizen will have 30 days from when the immigration court issued its final decision in which to file an appeal with the Board of Immigration Appeals, or BIA Board.

Are There Any Criminal Defenses For Immigrants Who Are Facing Deportation?

For immigrants specifically, the consequences of a criminal conviction can be considerably higher compared to the consequences for citizens. To reiterate, immigrants who are charged with even relatively minor crimes run the risk of deportation, and not being able to reenter the country again. According to U.S. immigration law, certain kinds of criminal convictions are referred to as “deportable crimes,” while other criminal convictions are referred to as “inadmissible crimes.”

Under the Immigration and Nationality Act, referred to as the “INA,” any non-citizen living in the U.S. can be deported if they are convicted of specific crimes. As this is an absolute rule, it does not matter:

• How strong your ties are here including your job, family, or owning a business;
• Whether you have a dependent child who is a U.S. citizen;
• Whether you are a documented or undocumented immigrant; and/or
• How long you have lived in the country.

Among the major categories of deportable crimes include:

• Crimes of moral turpitude, which generally involve dishonesty, fraud, and/or antisocial behavior;
• Aggravated felonies;
• Controlled substances or drug offenses; and
• Firearm offenses.

Under the INA, being “inadmissible” means that you will not be eligible to receive any of the benefits that would be granted by U.S. immigration authorities. Examples include being barred from:

• Reentering the country after leaving, even if you have a valid visa to live in the U.S., or if you are a green card holder;
• Becoming a U.S. citizen;
• Applying for permanent residence or a green card; and
• Applying for an “adjustment of status,” or change from illegal to legal immigration status.

However, a conviction for an inadmissible crime may not result in deportation from the country. Deportation can occur only if you are convicted of a deportable crime, or if you entered the country or received an immigration benefit while you were inadmissible. Inadmissible crimes sometimes overlap with deportable crimes which were previously discussed. Among the major inadmissible offenses include multiple criminal convictions where the sentences total five years or more.

Because criminal and immigration laws overlap, immigrants may have different options open to them which can prevent conviction or deportation. Examples include:

• Waiver: Some immigrants may qualify for a waiver. In order to qualify, the immigrant must pass different balancing tests in which an immigration judge will weigh the positive aspects of the immigrant’s life against the seriousness of the criminal charges;
• The Use of Standard Criminal Defenses: Immigrants can also use different criminal defenses that citizens utilize, such as self-defense, defense of property, duress/necessity, alibi, or mistake;
• U-Visas: These visas are given to non-citizens who have assisted law enforcement authorities in the investigation or prosecution of a different crime. They may also be able to apply for a green card in the future if they are granted a U visa;
• Challenging the Criminal Charges: If the charges brought against an immigrant can be proven wrong, or if the charges are not based on proof, this could serve as a defense;
• Adjustment of Status: Some immigrants can avoid deportation if their application for adjustment of status has been approved. Even when their application has been denied, they can petition again for the approval of the application; and
• Voluntary Departure: In this scenario, the accused chooses to leave the country on their own before removal measures are enforced. Doing so can sometimes make it easier for the non-citizen to return to the U.S. in the future.

Do I Need An Attorney For Help With Criminal Defenses For Immigrants?

If you or a loved one is an immigrant and are facing a criminal charge, you should consult with a local immigration attorney before proceeding.

Your immigration lawyer can help you understand your legal rights and options, and will also be able to represent you in court, as needed. They will also determine whether there are any defenses available to you based on the specifics of your case.