Non-Citizen Criminal Defendants Require Precise Immigration Advice

The U.S. Supreme Court has held that a non-citizen criminal defendant is entitled to receive advice concerning the immigration consequences of any potential criminal conviction. The reason for this is that while immigration law is considered civil in nature, criminal law and immigration law are so inexorably intertwined that such immigration consequences cannot be considered collateral in nature.

Yet, proper legal advice on the immigration consequences of a criminal conviction has never been more complicated. This is due to the seemingly internal inconsistencies within U.S. immigration law, as well as the inconsistencies between federal law and state law. Indeed, the President’s program of granting deferred action for childhood arrivals has only made the task more complicated.

In order to understand the complexity of giving proper immigration advice, it is first necessary to understand how the same conviction can be treated differently within immigration law. This is due, in part, to the difference between inadmissibility and deportability.

Inadmissibility and Deportability

The grounds of inadmissibility apply when an alien is attempting to seek admission to the United States at a port of entry, such as an airport, or when an alien has entered the country without a visa and is placed in removal proceedings. Such an entry is called an entry without inspection, or EWI.

By contrast, the grounds of deportability apply when an alien has entered on a valid visa, but the U.S. Government believes that there are reasons to seek that alien’s removal from the United States. For example, if an alien was granted permanent residency, but is later convicted of certain crimes, the U.S. Government can initiate removal proceedings to deport that alien.

The first major contrast between the two concern whether an actual conviction is necessary to remove an alien. When the grounds of inadmissibility apply, it is sufficient that an alien has admitted to committing acts which would constitute a crime that would render the alien deportable. For example, if an alien admits that he has stolen a car, he or she has admitted to theft, which can be a crime that renders the alien removable.

In order to be deportable, however, it is necessary for the alien to have been convicted of the crime in question.

Crimes Involving Moral Turpitude

But even if there is a conviction, that conviction can have different consequences. Take, for example, crimes involving moral turpitude (CIMTs). These are crimes that involve an act of baseness, vileness, or depravity as to be contrary to accepted and customary rules of right and duty between people. CIMTs include theft, fraud, and crimes where there is an intent to do something deprave.

Under the grounds of inadmissibility, if an alien is convicted of, or admits to having committed, one CIMT, then that alien is removable, unless the crime was committed before the alien was 18, and more than 5 years before the date of application for the visa or admission to the United States. There is also a petty offense exception that applies when the maximum penalty for the crime does not exceed one year, and the actual sentence did not exceed six months.

The rules differ if the grounds of deportability apply. A single CIMT will render an alien deportable generally if it was committed within five years of being admitted to the United States, and a sentence of one year or longer may be imposed. If the alien has convicted of two or more CIMTs, not arising out of the same incident, then the alien is also deportable.

This striking difference between inadmissibility and deportability can lead to severe results. If a permanent resident were to leave the United States, say to visit family in his or her home country, then once that alien arrives back in the United States, he or she is again seeking admission. That means that although the alien is a permanent resident, the grounds of inadmissibility apply. If that same alien had been convicted of a CIMT, but that CIMT did not render the alien deportable, the same conviction could render the alien inadmissible.

For example, if a permanent resident is charged with prescription fraud, that is generally a CIMT. If the conviction occurs more than five years after the person became a permanent resident, then it may not render the person deportable. But, if the sentence is for a time greater than six months, and after serving the sentence the alien takes a visit back to his or her home country, that same person with the same conviction will find himself or herself in removal proceedings once he or she returns to the United States.

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