Criminal Convictions and Immmigration--What Happens Now?
Being convicted of a crime can result in significant immigration consequences. Even a conviction of a mere misdemeanor can trigger removal proceedings. Involvement of an immigration attorney is recommended upon arrest as the decisions one makes on their criminal case can result 00004000 in serious immigration implications.
Illegal aliens continually avail themselves to the risk of being deported, particularly if they are taken into custody for an alleged crime. Lawful residents, conditional or permanent, who are accused or convicted of a crime, risk removal proceedings. A sentence of deferred prosecution is irrelevant so long as a plea or finding of guilt is the basis of that sentence. Expungement is also irrellevant as an order of expungement from a state court only orders the arresting agency, circuit court clerk andstate authorities to expunge a conviction from their records. For immigration purposes, federal authorities will look to the federal database. A state court cannot order the federal government to expunge its records.
Typical crimes that can result in removal proceedings involve drugs, prostitution, unlawful use of a weapon, sex offenses, domestic battery, immigration fraud or homicide,but there are other crimes for which a person can be considered an aggravated felon. Those crimes areenumerated in 8 USC Section 1101(a)(43). Expedited removal proceedings are used in removal for aggravated felonies. Removal orders from those proceedings are not reviewable by the federal courts. An attempt or conspiracy to commit an aggravated felony can also result in expedited proceedings as can conviction of a crime involving moral turpitude. Moral turpitude is generally described as base, vile, depraved and immoral conduct.
If a person has been charged or convicted of a crime, Immigration and Customs Enforcement (ICE) can issue a detainer or "immigration hold". The arresting agency or jail runs an immigration check with ICE and if the individual is deemed to be an illegal alien, conditional or permanent resident, a request for the hold is issued. Bonding out then becomes nearly impossible. If the defendant is found guilty or pleads guilty, he serves his term, is remanded to ICE and removal proceedings are initiated. Under these circumstances, the individual is held until removal proceedings are concluded.
When removal proceedings are initiated, one can attempt to remain in the United States by filing various applications. A common application is cancellation of removal. A lawful permanent resident convicted of an aggravated felony is not permitted to apply for cancellation. If not convicted of an aggravated felony, application can be made if:
1. The applicant has been a lawful permanent resident for no less than 5 years; and
2. Has resided in the United States for not less than 7 years in any status; an
The cancellation option is available to a non-permanent resident in any immigration status who:
1. Has continually resided in the United States for at least 10 years; and
2. Has been a person of good moral character throughout that time; and
3. Is not otherwise subject to criminal bars arising from a conviction of any crime set forth in INA Section 212(a(2), or Section237(a)(2) or (a)(3).
4. Shows that removal would result in exceptional and extremely unusual hardship to that alien's spouse, parent or child who is a United States citizen or legal permanent resident.
Another application employed to attempt to avoid removal is the asylum application. Being designated an asyleegives protection from arrest and extradition by a nation or embassy that has diplomatic immunity. An applicant seeking asylee status must show past persecution in their country of origin or last domicile or, a well founded fear of persecution in the future based on race, religion, nationality, political opinion or membership in a particular social group. Once designated an asylee, that person may reside in the United States indefinitely, so long as the threat of persecution continues. See this author's other articles regarding asylum being granted to battered spouses and former street gang members.
Withholding of removal is similar to asylum as it involves persecution based on race, religion, nationality, political opinion or membership in a particular social group, however, the burden of proof is higher than that for asylum. While an asylum seeker must show a well founded fear of persecution, an applicant for withholding of removal must establish that they face a threat of loss of life or freedom by a "clear probability". This burden is similar to a preponderance of the evidence wherea propositionis more likely true than not true. Withholding of removal however, does not permit a successful applicant to apply for permanent residence, travel outside of the United States or inure benefits of residency in the USA to spouses or children.
And then there is deferral of removal which goes beyond asylum or withholding of removal. This form of relief seems to go full circle. Deferral of removal primarily turns on the Convention Against Torture Act (CAT) that provides protection for those that are not eligible for either asylum or withholding of removal should they fail to fall within the criteria of an asylee or withholding of removal. Past criminal or persecutory acts are not considered by the act. Those that torture or persecute are permitted to remain in the United States under this provision which often benefits former gang or drug cartel members from Central Ameria or Mexico.
Members of the Chicago Police Department are tried for torture however, under applicable law,a formertorturer or persecutor can be given the full protection of the law of the United States. A former Central American or Mexican street gang member may be permitted to remain in the United States without fear of prosecution in their country of origin and a street cop accused of torture or persecution might lose everything they have, including their freedom,in defending false allegations. Where does it begin and where does it end? The circle has been completed.
