by Attorney Eric D. PuryearCriminal convictions can have significant consequences for a person who is not a US citizen. Those consequences can include deportation.
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the United States Supreme Court held that the Sixth Amendment to the U.S. Constitution requires defense attorneys to advise noncitizen clients of potential immigration consequences of guilty pleas. The defense counsel’s failure to advise or misadvice regarding immigration consequences may constitute ineffective assistance of counsel. When the risk of removal resulting from a guilty plea is “clear,” defense counsel must advise the client that deportation is presumptively mandatory. However, if the risk is less clear, then defense counsel only needs to advise the client that the criminal charge(s) may carry a risk of adverse immigration consequences.
A criminal conviction is defined as a formal judgment of guilt entered by the court. It also includes withholding the adjudication of guilt where a judge or jury has found the noncitizen guilty, the noncitizen has entered a guilty plea or a plea of nolo contendere, or the noncitizen has admitted sufficient facts to warrant a finding of guilt and the judge orders some form of punishment, penalty, or restraint on the noncitizen’s liberty. Thus, deferred judgments constitute convictions for immigration consequence purposes.
If the noncitizen defendant is a lawfully admitted to the United States, for example as a lawful permanent resident or a green card holder, the following criminal convictions are grounds for deportability: (1) aggravated felonies (including murder, rape, sexual abuse of a minor, drug trafficking, firearm trafficking, crime of violence with the potential of a 1 year in jail, theft or burglary with the potential of a 1 year in jail, fraud or tax evasion and the loss to victim is greater than $10,000, prostitution business offenses, commercial bribery, counterfeiting, or forgery with the potential of a 1 year jail sentence, obstruction of justice or perjury with the potential of 1 year in jail, certain bail jumping offenses, various federal offenses and possibly state analogues, and attempt or conspiracy to commit the above offenses), (2) controlled substance convictions (except for a single offense of simple possession of 30 grams or less of marijuana), (3) crimes involving moral turpitude (CIMTs) committed within 5 years of admission into the U.S. and carry the potential for 1 year in jail or two or more CIMTs at any time not arising out of a single scheme (including crimes with the intent to steal or defraud as an element, crimes in which bodily harm is caused or threatened by an intentional act or serious bodily harm is caused or threatened by a reckless act, and most sex offenses), (4) firearm or destructive device convictions, and (5) domestic violence convictions (including stalking, child abuse, neglect, or abandonment, and violation of an order of protection).
If the noncitizen defendant was not lawfully admitted to the U.S. and is seeking lawful admission, the following convictions are grounds for inadmissibility: (1) controlled substance offenses (except for a simple possession noted above), (2) CIMTs (except for one CIMT if the noncitizen has no other convictions of a CIMT, the offense is not punishable by more than 1 year in jail, and does not involve a prison sentence greater than 6 months), (3) prostitution and commercialized vice, and (4) conviction of two or more offenses of any type and an aggregate prison sentence of 5 years.
The following convictions mean that the noncitizen will be ineligible for U.S. citizenship for up to 5 years: (1) controlled substance offense (except for simple possession of marijuana noted above), (2) CIMTs (except for petty offense exception noted above), (3) two or more offenses of any type and aggregate prison sentence of 5 years, (4) 2 gambling offenses, and (5) confinement to a jail for a total period of 180 days. In addition, an aggravated felony conviction on or after November 29, 1990, permanently bars citizenship.
The following convictions mean that the noncitizen is ineligible for lawful permanent resident cancellation or removal: (1) aggravated felony convictions and (2) offenses under the grounds for inadmissibility when committed in the first 7 years of residence after admitted to the U.S.
The following convictions mean that the noncitizen is ineligible for asylum or withholding of removal based on threat to life or freedom in the country of removal: (1) aggravated felonies (all bar asylum, an aggregate 5 year sentence bars withholding, and those involving unlawful trafficking in controlled substances presumptively bar withholding) and (2) other serious crimes that are not statutorily defined.
It is highly advisable for a noncitizen charged with criminal offense(s) to consult with a knowledgeabl attorney immediately for advice on immigration consequences of criminal convictions, as such advice is dependent upon the unique facts and circumstances of each client and each case.