Immigration Consequences of CA Criminal Convictions
San Diego, with its location right on the Mexican-American border is home to many non-citizen immigrants. From green card holders (lawful permanent residents, or "LPRs"), visa holders (including student visas, work visas, tourist visas, etc.), and undocumented (illegal) immigrants. For each group of non-citizens, the immigration consequences of a criminal conviction must be carefully examined and applied to case strategy and used to ensure that no plea bargain is entered that would unknowingly subject a non-citizen to deportation, removal, denial of naturalization, denial of citizenship or other negative consequences. Though it may not be possible to avoid negative immigration consequences in every case, it is important to have an intelligent, knowledgeable San Diego Criminal Defense Attorney who understands immigration law and can properly advise you of the consequences. If you or a loved one is a non-citizen facing criminal charges, the consequences can be that much more severe. Contact our office today for a Free Consultation. 619-550-4422
Aggravated Felonies For non-citizens, "aggravated felonies" are the most serious form of criminal conviction. Non-residents (those who are here illegally or on temporary visas) are subject to "administrative removal" upon a conviction for an aggravated felony. This means that the person will not be entitled to a removal hearing and will not be able to assert defenses to removal. Aggravated felonies affect even green card holders ("LPRs") and are the most serious kind of offense for immigration purposes. Some examples of aggravated felonies include: illegal controlled substance trafficking, firearm trafficking, violent crimes (includes crimes involving threat of force) where the sentence imposed is greater than a year, theft offenses with a sentence of a year or greater, and theft, fraud or deceit offenses where the loss to victims exceeds $10,000 are all defined as aggravated felonies. Crimes Involving Moral Turpitude A conviction for crimes involving moral turpitude (CIMTs) will subject a non-citizen to inadmissibility and deportability. CIMTs are crimes that involve theft, lying, deceit, forgery, etc. Just one conviction of a CIMT will trigger deportation if the crime is punishable by up to a year. Note that this criterion focuses on the possible punishment and not the punishment actually imposed. There is also a Petty Offense Exception which permits non-citizens to avoid inadmissibility as a consequence for one minor CIMT offense. Two or more offenses and there may not be a defense. Crimes of Violence or Domestic Violence Many crimes of violence and domestic violence are aggravated felonies. In cases where a conviction does not qualify as an aggravated felony, it may still have negative immigration consequences. Avoiding a domestic violence conviction is imperative. The conviction cannot be an aggravated felony (i.e. must have a sentence of less than a year), but it is also important that the record of conviction not mention the domestic relationship. PC 273.5, for example, is a bad conviction for immigration purposes. PC 243(e)(1) on the other hand is a divisible statute because one can be convicted without any violent acts (offensive touching). Crimes involving child abuse and child endangerment also carry severe immigration consequences. If you or a loved one is a non-citizen facing charges involving violence (especially domestic violence), you need a knowledgeable, skilled attorney to fight for you. Controlled Substances Like crimes of violence and domestic violence, many controlled substance offenses are aggravated felonies. Charges involving drug sales or trafficking will almost certainly be aggravated felonies. While California law has recently adapted to make simple possession of a controlled substance a misdemeanor (Prop 47), immigration law operates differently. Because immigration law is based on federal law, and even if a state offense is a misdemeanor, the federal analogue to the same law is likely a felony. Therefore it is important that convictions for controlled substance possession be avoided whenever possible, and further that any conviction for a controlled substance be silent as to the specific controlled substance to avoid the application of a federal analogue statute. Most controlled substance offenses, even those that do not qualify as aggravated felonies, may still lead to deportation or inadmissibility. In fact, no conviction is necessary at all. The government can deport someone for being an addict or drug user, or even if there is simply a "reason to believe" that the person is involved in drug trafficking. Sex Offenses Sex offenses are treated very seriously by the courts, society, and certainly by immigration law. Crimes such as rape, child pornography, child molestation, and most other sex offenses are aggravated felonies. Prostitution, while not an aggravated felony can also trigger removal proceedings. Avoiding deportation or inadmissibility with sex offenses is perhaps the most difficult task a defense attorney may face in handling a criminal matter for a non-citizen. Often, the goal with these cases is to limit time in custody prior to deportation, but also to limit the effect of a future illegal re-entry charge if the defendant may re-enter the country illegally. Cancellation of Removal LPRs (non-citizens with a green card), who have lived in the U.S. for at least seven years may be eligible for cancellation of removal during certain proceedings. It may be possible to secure an immigration bond during these proceedings, but a non-resident in removal proceedings may have to remain in custody while proceedings happen. Cancellation of removal may be more likely with the right outcome in the criminal proceedings. Immediate Relative / Preference Visa Non-citizens who have a close family member (spouse or child) who is a US citizen or LPR may be eligible for an "immediate relative" or "preference" visa. Typically, the applicant must show that a citizen or LPR relies on them for support and would be prejudiced by the applicant's removal. U Visa Non-citizens who have been victims of certain crimes or abuse (including physical, sexual and emotional) might also be eligible for visa relief to remain in the country lawfully. The motive for false accusations to obtain a U Visa is also a common defense in domestic violence cases where the complaining witness is a non-citizen. Asylum and Convention Against Torture If a non-citizen's home country is dangerous, unstable or discriminates against the applicant, there may be an opportunity to remain for asylum or for protection per the Convention Against Torture. US Immigration laws are harsh, but are also quite complex. Non-citizens facing criminal charges need dedicated, knowledgeable representation. If you or a loved one is facing criminal charges, and are concerned about possible immigration consequences, contact our office for a free consultation today. 619-550-4422.
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