are defined as being ‘‘any person, not a citizen or national of
the United States.’’
Criminal conviction can make aliens deportable or inadmissible.
Drug convictions are treated harshly under the Immigration &
Immigration & Nationality Act (INA) has the potential to create severe
consequences for criminal convictions by non-U.S. citizen aliens.1
‘‘Aliens’’ are defined as being ‘‘any person, not
a citizen or national of the United States.’’2
There are three categories of aliens: lawful permanent residents,
commonly known as green card holders;3
non-immigrants who are legally in the United States in a temporary capacity,
such as visitors, students, and non-immigrant workers;4
and illegal aliens, individuals who entered the country illegally or who
entered the country legally and have remained beyond their authorized
of Criminal Conviction for Immigration Purposes
Immigration & Naturalization Service (INS) defines a conviction as
a formal judgment of guilt, or if a judgment is withheld, where there
is some type of plea, and/or admission of facts warranting guilt and the
imposition of some type of penalty.5
type of criminal adjudication, such as Holmes Youthful Training Act,6
rehabilitative drug dispositions like 7411,7
domestic violence pleas under advisement,8
and any other type of criminal plea where a judgment of conviction is
withheld, is considered to be a conviction for immigration purposes, and
can be used by the INS as grounds for deportation.
only exception to this rule might involve 17-year-old persons who receive
Youthful Training Status, as these crimes have been equated to being the
equivalent of a federal juvenile delinquent status, and as such, may not
necessarily be convictions for immigration purposes. Specifically, the
Board of Immigration Appeals in the case of In Re: Miguel Devison Charles9
ruled that if a state youthful status conviction is comparable to the
Federal Juvenile Delinquency Act (FJDA),10
then the alien was not convicted of a crime and is not subject to deportation
as the FJDA applies to individuals under 18 years of age. Only those aliens
17 years of age and under would be protected.
vs. Inadmissible Crimes
the INA, criminal convictions may make an alien ineligible for admission
into the United States.11
Specifically, convictions that are covered under this section apply to
aliens who are not permanent residents, such as non-immigrant aliens,
illegal aliens as noted above, or individuals outside of the country.
These grounds, as covered in the statute will make it difficult, if not
impossible, for the aliens noted above to obtain permanent residency in
the United States.
conviction can make aliens deportable or inadmissible. Deportable aliens
are those individuals who the government desires to remove from the United
States. Deportation, now referred to as removal, involves the act of placing
the alien in proceeding before an immigration judge.12
Inadmissible aliens are aliens who are attempting to obtain entry
into the United States or aliens who are in the United States and are
seeking permanent resident status (green card).13
is not unusual, however, to see an alien who has been admitted in some
sort of non-immigrant category, or illegal aliens, to be placed in deportation/removal
proceedings. These aliens are both inadmissible as well as deportable.
There are, however, various differences between these categories. Consideration
by criminal practitioners in resolving their criminal cases can affect
the future rights of these aliens. Specifically, crimes that subject an
alien to deportation may not cause those aliens to be inadmissible.
example of these differences involves the treatment of domestic violence
convictions. Domestic violence14
is a deportable offense. However, it is not an offense that makes an individual
inadmissible for admission into the United States.15
In other words, a person convicted of domestic violence might be deportable
or removable from the United States. However, it would be possible to
have him or her readmitted to the United States should he or she be otherwise
example of this is a permanent resident alien married to a U.S. citizen.
If the alien is not entitled to relief from deportation/removal, the U.S.
citizen can reapply to have the alien admitted as a permanent resident.
two categories of crimes listed above provide for a variety of crimes
that can make an alien inadmissible and/or deportable from the United
States. While the groups are not identical, there are some similarities.
The crimes listed below are the primary crimes that are used by INS and
affect the rights of aliens.
involving moral turpitude where the penalty exceeds one year or more16
can make an alien deportable or inadmissible. Moral turpitude, under immigration
law, has been defined by case law and is extremely broad. These crimes
include all frauds, thefts, burglaries, robberies, murder, manslaughter,
income tax evasion, drunk driving, assaults with weapons, domestic violence,
conspiracy related crimes, and drug trafficking.17
turpitude crimes that provide for a penalty of less than one year, such
as drunk driving, retail fraud, or simple assaults, generally will not
create problems for aliens if there is a single criminal conviction. The
sole exception to this rule includes crimes for domestic violence.18
violence convictions are deportable, but not inadmissible offenses. Thus
a standard, routine domestic violence conviction for a permanent resident
green card holder can and will result in deportation from the United States
regardless of whether this crime is taken under advisement pursuant to
the applicable Michigan19
or local statutes.20
For that reason, attorneys representing aliens should avoid pleading their
clients to any charge of domestic violence. Disorderly conduct or a like
conviction is preferable because it is not the type of crime that automatically
makes the alien deportable. These convictions can, however, be considered
if there are multiple convictions.
deportation provision for domestic violence also applies to crimes involving
stalking, as well as violation of a Personal Protection Order (PPO).21
While PPOs are not necessarily criminal in nature, an alien found in violation
of a PPO is subject to deportation.
same statute that involves domestic violence also provides for deportation
for crimes involving child abuse, child neglect, or child abandonment.
These crimes would include 90-day misdemeanors.
abuse of a minor is considered an aggravated felony pursuant to statute.22
These crimes are not only deportable, but as aggravated felonies virtually
no relief is available. Immigration Courts have held criminal sexual conduct
convictions that are misdemeanors are, in fact, aggravated felonies under
who have multiple convictions involving moral turpitude, not arising out
of a single scheme, are deportable and inadmissible.24
A single scheme has been defined under immigration law as a situation
where an alien did not have any opportunity between the commission of
two crimes to reflect or think about the crimes, or the crimes occurred
as a result of a single action.25
Two misdemeanor convictions can trigger deportation procedures.
convictions are treated harshly under the INA. Specifically, any drug
conviction, other than for the personal use of 30 grams or less of marijuana,
provides for deportation or lack of admission into the United States.26
In addition, special provisions relating to drug traffickers provide for
deportation and inadmissibility, but are so severe and so harsh that waivers
for these types of criminal convictions are not permitted. These aliens
are classified as aggravated felons and are not eligible for relief as
will be discussed below.27
for firearms offenses,28
high-speed flight offenses,29
and other types of crimes are listed as crimes that cause aliens to be
deported. Keep in mind that these various specified crimes can also qualify
as moral turpitude crimes.
felony crimes,’’ as defined by the INA, are grounds for deportation30
and for limiting or precluding certain waivers. Examples of the most prevalent
aggravated felonies include any type of violence for which a sentence
of one year or more is imposed, theft offenses for which a sentence of
one year or more is imposed,31
sexual abuse of minors,33
fraud exceeding $10,000,34
and obstruction of justice.35
should be noted that the INS will often charge an alien as being deportable
under several different sections of the statute, even though only one
crime occurred. An example of this would be drug traffickers who are deportable
pursuant to ‘‘crimes of moral turpitude,’’36
as ‘‘aggravated felons,’’37
and violation of ‘‘controlled substance’’ provisions.38
of Relief from Deportation
noted above, criminal convictions can make an alien deportable and/or
inadmissible. The immigration laws provide aliens the opportunity to seek
a waiver that may allow them to remain in, or be admitted to the United
States. Conviction for an aggravated felony is an absolute bar to one
type of waiver (Cancellation of Removal) and a virtual bar to a waiver
is a waiver applicable in two situations. The first is for permanent residents
who have resided in the United States for a minimum of seven years, with
at least five years in permanent residence status.41
Although not specifically stated in the statute, hardship to the alien’s
relatives may be a factor. This waiver is the most common waiver used
today for criminal aliens and is available for most felonies that are
not aggravated felonies. Criminal practitioners must pay special attention
to the cancellation of removal rules, as minor adjustments of the nature
and/or sentence for a crime can make all the difference.
for theft or violence offense of even one day less than a year may make
an alien eligible for cancellation of removal. Another example would be
to plead a defendant guilty to a non-fraud offense when more than $10,000
is involved. Often when judges or prosecutors are advised of the problem,
accommodations can be made to fashion convictions or sentences that allow
for immigration relief.
second cancellation of removal waiver applies to non-permanent residents
(illegals) who have been in the U.S. for 10 years.42…Proof
of ‘‘good moral character’’ is required. Virtually any criminal conviction
will prevent a finding of ‘‘good moral character.’’
is applicable to non-permanent residents who have a criminal conviction
rendering them inadmissible. An example of such a person would be a non-permanent
resident who is currently married to a United States citizen, but who
has previously been convicted of a theft crime. The requirements for this
type of waiver are different from those of the cancellation waivers in
two significant ways: no residency requirement is necessary, and conviction
for possession of controlled substances cannot be waived unless the conviction
is for possession of less than 30 grams of marijuana. A waiver is not
required for a single 90-day misdemeanor.
immigration consequence of a criminal conviction of an alien often far
outweighs the criminal punishment imposed. By carefully evaluating the
immigration consequences, criminal practitioners can often mold a resolution
that will allow an alien to avoid deportation/removal or to be eligible
for a waiver or readmission into the U.S. As noted above, judges and prosecutors
may work with criminal attorneys to create circumstances that may allow
aliens to remain in the U.S.
8 USC 1182(a)(2) INA section 212(a)(2); 8 USC 1227(a)(2), INA section
8 USC 1101(a)(3); INA section 101(a)(3).
8 USC 1101(a)(20); INA section 101(a)(20).
8 USC 1101(a)(15)(A-V); INA section 101(a)(15)(A-V).
8 USC 1101(a)(48); INA section 101(a)(48).
In Re: Miguel Devison Charles, Executive Office for Immigration
Review (B.LA. #3435, 2001).
18 USC 5031–5042 (1994 and Supp II 1996).
8 USC 1182(a)(2); INA section 212(a)(2).
8 USC 1227(a)(2); INA section 237(a)(2).
8 USC 1182(a); INA section 212(a).
8 USC 1227(a)(2)(E)(i); INA section 237(a)(2)(E)(i).
8 USC 1182(a)(2); INA section 212(a)(2) (note, it is specifically absent).
8 USC 1182(a)(2)(i)(I), INA section 212(a)2(i)(I); 8 USC 1227(a)(2)(i);
INA section 237(a)(2)(i).
Extensive case law from the Executive Office of Immigration Review (B.LA.).
8 USC 1227(a)(2)(E)(i); INA section 212(a)(2)(E)(i).
Varies by local jurisdiction.
8 USC 1227(a)(2)(E)(i)(ii); INS section 237(a)(2)(i)(ii).
8 USC 1101(a)(43)(A); INA section 101(a)(43)(a).
In Re: Anderson Davis Justin Small, 23 I & N Dec (448) (B.LA.
8 USC 1182(a)(2)(B); INA section 212(a)(2)(B); 8 USC 1127(a)(2)(A)(ii);
INA section 237(a)(2)(A)(ii).
In Re: Matter of Adetiba, 20 1 & N Dec 506 (1992).
8 USC 1227(a)(2)(B; INA section 237(a)(2)(B); 8 USC 1182(a)(2)(B); INA
8 USC 1101(a)(43)(B); INA section 101(a)(43)(B).
8 USC 1227(a)(2)(C); INA section 237(a)(2)(C).
8 USC 1227(a)(2)(A)(IV); INA section 237(a)(2)(A)(IV).
8 USC 1101(a)(43); INA section 101(a)(43).
8 USC 1101(a)(43)(F)(G); INA section 101(a)(43)(F)(G).
8 USC 1101(a)(43)(B); INA section 101(a)(43)(B).
8 USC 1101(a)(43)(A); INA section 101(a)(43)(A).
8 USC 1101(a)(43)(M)(i); INA section 101(a)(43)(M)(i).
8 USC 1101(a)(43)(S); INA section 101(a)(43)(S).
8 USC 1227(a)(1); INA section 237(a)(i).
8 USC 1227(a)(iii); INA section 237(a)(iii).
8 USC 1227(B); INA section 237(B).
8 USC 1182(h); INA section 212(h).
8 USC 1229(b); INA section 240(A).
8 USC 1229(b)(a); INA section 240(A)(a).
8 USC 1229(b)(b); INA section 240(A)(b).
8 USC 1182(h); INA section 212(h).