What crimes can get immigrants deported? Find out how a criminal conviction may result in deportation and discover the defenses available for such cases.
American immigration law is complex, and there’s almost no greater way to complicate it further than to add a criminal proceeding to the mix. When an immigrant has been convicted of a crime, immigration authorities sometimes seek deportation by initiating removal proceedings. The removal hearing is separate from the criminal case and is conducted in immigration court, though the government may introduce evidence from a criminal case to support its motion to remove an immigrant convicted of breaking the law.
This does not always happen, however. Some legal immigrants retain their status as permanent residents or green card holders despite a conviction for one or more criminal offenses. How does this system work, what crimes can get an immigrant deported and how does criminal law affect a person’s immigration status? As always, it is best to consult an immigration attorney for definitive answers to your questions, but you can find out more information about these matters below.
Illegal Immigration Is Illegal
Not all foreign nationals have the same rights to reside in the United States. Persons who have entered the country illegally in the first place, or whose visa has expired without a change of status, are technically subject to deportation at any time, whether they have otherwise obeyed the law or not. Deportation on the grounds of illegal entry is a complicated subject on its own, but you should know that the government has historically prioritized deportations of undocumented residents with criminal records over those whose only crime is their illegal status.
Greg Bulla/UnsplashLegal Resident Crimes and Deportation
Foreign nationals who have not transferred citizenship to the United States exist in an in-between legal world where some crimes may get them deported, while others may not. Briefly, petty offenses committed by legal residents do not warrant deportation proceedings, while so-called crimes of moral turpitude and serious felonies do.
These terms arise mostly from the state statutes criminal defendants get charged under, and so there is no unified federal definition of a “moral turpitude” crime. Neither is a crime of moral turpitude decided on a case-by-case basis by different judges. Rather, the federal court system has slowly built up a common law guide of moral turpitude offenses that can trigger a removal action by immigration authorities. In the case of Padilla v. Kentucky (2009), the Supreme Court held by a 7-2 majority that defense lawyers must advise their clients whether their offense carries a risk of deportation before they plead guilty.
Crimes of Moral Turpitude
While there is no single comprehensive list of deportable crimes, the Justice Department works from a list included in the Immigration and Nationality Act. This list was adopted by Congress and includes:
- Narcotics crimes
- Firearms-related felonies, including illegal manufacture, importation and sales
- Espionage on behalf of a foreign government
- Domestic violence, including stalking, child abuse, child neglect and making threats
- Human trafficking offenses
- Membership in a terrorist organization or activity in support of such a group
- DUI/DWI offenses that are aggravated by other factors, such as injury or death, or having a suspended license to drive
As a rule, a crime is regarded as bearing on moral turpitude if it involves dishonesty, violence, sexual elements or harm to children. An otherwise legal resident of the United States may be deported after a conviction or guilty plea for a single count of moral turpitude.
Gras Grün/UnsplashSerious or Repeated Felonies
Even non-moral turpitude crimes may become grounds for deportation if they meet certain other conditions. Repeat offenses, for example, are often the trigger for a removal procedure. A legal resident who, for instance, drives the getaway car for a robbery just might avoid deportation if the court rejects the moral turpitude assertion of the government. A second such offense, however, all but guarantees a removal hearing.
Note that the government does not stack charges for such offenses. Multiple felonies committed as part of the same act — such as illegal display of a gun, theft and then driving the getaway car — are generally counted as all being the same incident for immigration and deportation purposes. Of course, they may all still be charged as separate felonies, each with its own term in prison.
Less-Serious Crimes Leading to Deportation
Even minor crimes might trigger a deportation action under certain conditions. As a rule, misdemeanors and infractions are not considered grounds for removal, nor are relatively less-serious felonies that always merit less than 6 months in jail, such as non-aggravated DUI or similar offenses. The government reserves the right, however, to initiate a deportation and removal action for any immigrant who commits a crime of this kind within the first five years of their residency.
Hédi Benyounes/UnsplashWhat Crimes Are Not Deportable?
Not every crime committed by an immigrant or legal alien is grounds for deportation. Apart from misdemeanor crimes, such as traffic violations or nuisance charges, some felonies may not be considered deportable. A non-moral turpitude felony committed more than five years after residency is granted, for example, is typically not followed by deportation, though it may result in prison time or other penalties.
To know whether a crime falls inside or outside of the five-year window, start at the date of the incident and count back five years. If the date is after the first grant of residency, then the act lies outside of the five-year deportation window.
For example: A man who first came to the United States on an H1B visa to work in tech in 2013, but who changed his status to Legal Permanent Alien in 2018, may count a 2019 DWI conviction back five years to 2014. Since this is after his H1B visa was granted, it falls outside of the window and is likely not deportable.
A legal resident may be able to stave off removal proceedings even for a serious offense by obtaining a 212(h) waiver. This waiver is granted at the sole discretion of a presiding judge, and it excuses the immigration consequences of a past felony. Generally, a judge may grant this waiver for immigrants with criminal records who can show evidence they have rehabilitated, or that their removal would cause severe hardship to their U.S. citizen spouse or children.
