Facing criminal charges can pose serious problems for anyone: jail, fines, probation, employment difficulties. But criminal charges mean additional problems for one group: those who are not U.S. citizens. While this area of the law is quite complicated, in addition to the ordinary penalties, a criminal conviction in many instances can bring serious consequences for the immigration status of non-citizens, including deportation, exclusion (being barred from entering this country), and becoming ineligible for citizenship, among other problems.
What makes the situation worse is that many of those affected by this – and even some lawyers – do not fully comprehend the damage a non-citizen can incur due to a run-in with law enforcement. In fact, a 2010 Supreme Court decision (Padilla v. Kentucky) held that, due to what it termed a “clear” risk of deportation following guilty pleas to many criminal charges, defense lawyers have a Sixth Amendment duty to advise non-citizen clients correctly on those risks.
One common misconception is that the interplay of criminal law and immigration status only concerns persons who are not legally in this country. In fact, lawfully admitted permanent residents (green card holders) and temporary residents on valid visas, can face serious problems in the wake of criminal charges, not just aliens here without legal authorization.
Section 1227(a)(2) of the immigration title of the U.S. Code specifies a large number of criminal offenses for which aliens can be deported (including firearms offenses, drug offenses above possession of 30 grams of marijuana for personal use, crimes of domestic violence, stalking, failure to register as a sex offender, or child abuse, neglect or abandonment.)
But this same section of immigration law also contains several more general grounds for deportation. These include conviction, generally within five years of first being admitted to this country, of a crime involving “moral turpitude” (one which manifests signs of bad character, such as dishonesty, theft, or the intent to harm people or property), where the potential sentence is a year or longer.
That one-year threshold means that many common New York misdemeanors, such as driving under the influence or shoplifting items valued at less than $1,000, can bring serious immigration consequences for non-citizens. In fact, it was to avoid California misdemeanor offenses bringing in their wake immigration consequences for non-citizens that California Gov. Brown last July signed into new state law setting a 364-day maximum sentence for misdemeanor offenses there.
Other grounds for deportation and permanent exclusion include any “aggravated felony,” a term under which section 1101(a)(43) of the immigration title incudes over 20 different offenses (ranging from murder, rape, child pornography and drug or firearms trafficking, to money laundering, tax evasion of over $10,000, and many others). Another grounds for deportation is conviction of two or more crimes of moral turpitude at any time since admission to the U.S., regardless of whether a sentence was imposed, unless they were part of a single scheme of criminal misconduct.
An even wider range of offenses can prevent an alien from being able to enter the country lawfully, as can admissions of having engaged in certain crimes or conduct, even without criminal charges being filed.
Making a difficult subject even more complex, for immigration purposes, a “conviction” need not mean being found guilty of a crime and sentenced for it. Instead, immigration problems can be triggered by a guilty plea, or even a suspended sentence or an administrative procedure disposing of a criminal case short of what most people would think a criminal conviction would mean.
If you are a non-citizen facing a criminal charge in New York, make sure that any counsel you see thoroughly understands and can advise you on the possible consequences for your ability to remain in this country, become naturalized or re-enter the country again after you travel outside it.