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Criminal Offenses That Cause Deportation Of Non-Citizens

For non-citizens that are charged with a crime, it is very important to understand the immigration consequences of a plea bargain or a conviction.  For some, they are going to care much more about the possible criminal penalties than any immigration consequences.  But for others desperate to remain in the U.S., they would sacrifice almost any other consideration in order to avoid removal.

General Crimes Causing Deportation of Non-Citizens

  1. Such crimes of moral turpitude committed within five years after the date of admission for which a sentence of one year or longer may be imposed;
  2. Multiple criminal convictions committed at any time after the admission;
  3. Aggravated felony as defined in INA Section 101(a)(43) committed at any time after admission;
  4. High Speed Flight in violation of section 758 of title 18, U.S.C;
  5. Failure to register as a sex offender.

Control Substances related offenses that can cause deportation of Non-Citizens

Any alien who at any time after admission has been convicted of a violation of any law relating to a controlled substance, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable. Further, any alien who is drug abuser or addict is deportable. Drug offenses have some of the most serious and unforgiving immigration consequences.  Consequences include: deportation (sometimes mandatory), mandatory detention, ineligibility to get lawful residency, loss of asylum or ability to get asylum, and temporary or permanent bar to citizenship and stiff federal sentences upon illegal reentry.

General Drug Deportability INA § 237(a)(2)(B)(i); 8 USC 1227(a)(2)(B)(i)

Elements of general ground of drug deportability

  1.  Non-citizen
  2.  After admission
  3.  Is convicted of
  4.  Violation of (or conspiracy or attempt to violate) law
  5.  Relating to controlled substance as defined in 21 USC § 802
  6.  Not single offense of possession for personal use of 30 grams or less of marijuana

To constitute a deportable controlled substance conviction or a drug-trafficking aggravated felony, an offense must involve a controlled substance that is on the federal list. If the controlled substance is on a state list, but is not on the federal list, the conviction does not trigger adverse immigration consequences. In deportation proceedings  the government bears the burden of proof that the alien is deportable. This rule, first expressed over 39 years ago, in Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965).

  • Conviction of Federally Covered Drug – Controlled Substance Offense –  Deportable!
  • Possession Only Conviction – Controlled Substance Offense – Deportable!
  • Possession With Intent to Sell Conviction –  Controlled Substance Offense – Deportable!
  • Sale or Distribution Conviction – Controlled Substance Offense – Deportable!
  • Marijuana Possession Conviction  Deportable!  BUT – simple possession + 30 grams or less + Personal use + One time is an exception to Controlled Substance Ground, and LPR will not be deportable for only this conviction. However, LPR may still be inadmissible when returning from trip abroad 
  • Paraphernalia Conviction – Controlled Substance Offense – It Depends!!   To trigger removal under §1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§802].”  Mellouli v. Lynch, Attorney General, 575 U. S. ____ (2015). A non-citizen’s state conviction for concealing unnamed pills in his sock did not trigger removal under 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes the deportation of an alien “convicted of a violation of . . . any law or regulation of a state, the United States, or a foreign country related to a controlled substance.”
  •  Not Controlled Substance Offense – Not Deportable!

Drug Trafficking Aggravated Felony Mandatory Deportability INA § 101(a)(43(B); 8 USC 1101(a)(43(B)

Elements of drug trafficking aggravated felony ground of deportation

  1.  Non-citizen
  2.  After admission
  3.  Is convicted of
  4.  “Any illicit trafficking
  5.  In a controlled substance (as defined in section 102 of the Controlled Substances Act),
  6.  including any drug trafficking crime (as defined in section 924(c) of title 18, United States Code)”

In December of 2006, in an 8-1 decision, the U.S. Supreme Court ruled that the federal government had been misapplying the mandatory deportation “drug trafficking” aggravated felony label to simple possession offenses that would be misdemeanors under federal law. SeeLopez v. Gonzales, 127 S.Ct. 625 (2006).

In June of 2010, the Supreme Court ruled in Carachuri-Rosendo v. Holder (No. 09-60) that a second or subsequent conviction for simple possession of a controlled substance cannot automatically be deemed an aggravated felony as a “drug trafficking crime,” reversing the contrary Fifth Circuit decision and affirming the position of the Board of Immigration Appeals. As a result of this litigation, an immigrant convicted of a second or subsequent state possession offense can only be subject to mandatory deportation as a drug trafficking “aggravated felon” if the prior conviction(s) were at issue in the second or subsequent drug prosecution in a way that corresponds to recidivist possession prosecutions under the federal Controlled Substances Act, 21 U.S.C. §§ 844(a), 851.

On April 23, 2013, the Supreme Court ruled in Moncrieffe v. Holder (No. 11-702) that a state conviction for marijuana possession with intent to distribute may not be deemed a drug trafficking aggravated felony when the state statute covers conduct such as social sharing of marijuana falling outside the federal “drug trafficking crime” definition. As a result of this litigation, an immigrant convicted may not be subject to mandatory deportation as a drug trafficking “aggravated felon” if the conviction may have involved distribution of a small amount of marijuana for no remuneration, conduct which is not treated as a drug trafficking felony under the federal Controlled Substances Act, 21 U.S.C. §§ 841(b)(4).

Certain firearm offenses

Persons convicted of violation of any law related to firearm or destructive device ( purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying) is deportable.

Domestic Violence Convictions could cause deportation

Aliens who at any time after admission were convicted of a crime of domestic violence, stalking, child abuse and neglect are deportable. Force clause —  requires  an element of violent force, meaning strong physical force that is capable of causing physical pain or injury to another person.  Injury does not equal violent physical force. See Matter of Guzman-Polanco, 26 I & N, Dec. 713 (BIA Feb. 24, 2016).

Miscellaneous crimes

Alients convicted of  offenses against the U.S. such as espionage, sabotage, or treason are deportable.

If they are in the latter category, there are many cases where it is possible to identify a plea that is roughly equivalent to the one charged but is safer for immigration purposes.

Criminal Defense Counsel’s Duties in Representing an Immigrant Defendant

On March 31, 2010 the Supreme Court issued a momentous decision regarding immigrants’ rights to counsel in Padilla v. Kentucky.  The Court held that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a non-citizen defendant regarding the immigration consequences of a guilty plea, and, absent such advise, a non-citizen may raise a claim of ineffective assistance of counsel.  The standards put forth by the court provide that competent defense counsel must take immigration consequences into account at all stages of the legal process.

Some duties of defense counsel include:

  • Duty to inquire about citizenship/immigration status at the initial interview stage.
  • Duty to investigate and advise about immigration consequences of plea alternatives.
  • Duty to investigate and advise about immigration consequences of sentencing alternatives.

The Supreme Court in Padilla urged criminal defense attorneys to be “active, rather than passive, taking the initiative to learn about rules in this area rather than waiting for questions from the defendant.”  It is of utmost importance when defending any client, you are aware of any possible immigration consequences that may arise.

Federal Criminal Defense: Complying with Padilla v. Kentucky  130 S.Ct 1473 (2010) – Immigration Consequences.

“Changes to immigration law have dramatically raised the stakes of a non citizen’s criminal conviction.”

“Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for non citizens accused of crimes has never been more important.”

Immigration law can be complex, and it is a legal specialty of its own. … When the law is not succinct and straightforward… a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”

Irina Vinogradsky will help you to identify crimes causing deportation. You can call at (216) 292-6655 or email irina@iv-law.com.

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