CRIMINAL ALIENS

Since 1996, federal efforts to deport immigrants convicted of criminal offenses has been a focal point of the immigration courts and procedures. The category of "aggravated felons" continues to be expanded to include ordinary and minor misdemeanors, and wrecks havoc with an alien's right to come to or remain in the U.S.  It serves a s a trigger for the deprivation of a great number of procedural rights during removal proceedings, and acts to remove aliens permanently from the U.S.

Because the aggravated felony ground of deportation is not considered to be "punishment", Congress has declared that a conviction at any time can be considered an aggravated felony if it falls within the current 2005 definition. That means a person who was convicted in 1980 for a minor offense of possession of drugs, is married to a U.S. citizen, has 4 U.S. citizen children and who is a pillar of the community can now be arrested and removed permanently from the U.S. without any realistic possibility of compassionate consideration.

This is a harsh draconic application of the use of criminal convictions to remove aliens because it does not take into consideration a one time mistake nor rehabilitation nor other circumstances which include plea bargaining.  Sometimes a person, especially when the law was such that there was no consequence to his or her plea, would plead guilty to avoid the rigors and expense of a long trial. Now, years later, under the current Immigration Law, that person can be retroactively considered an aggravated felon because the conviction under current law is such.

Generally, any alien with a conviction any where in the world is inadmissible to the U.S. but there are exceptions depending on how minor and how distant the conviction is.  One of the requirements for admission is that a person have good moral character, and evidence of a conviction is a strike against good moral character, no matter the nature of the conviction.  Furthermore, the expansion over the years of the term "aggravated felon" has become so encompassing, that it includes many offenses that one would have  considered trivial in the past.

Many people, including judges and criminal attorneys, call me to ask exactly what is an "ag felon" now, and I respond each time stating that the definition is constantly changing to include or exclude certain criminal acts. In general, an "ag felon" is one convicted of:

 

Murder

RICO offense

Racketeering

Alien smuggling

Money laundering

Ransom offenses

National Security offenses

Any drug trafficking crime

Any crime of violence

Theft and burglary offenses

Gambling offenses

Income tax evasion

Child porno or prostitution

Rape, sexual abuse of minor

Foreign offenses in past 15 years

Any illicit trafficking in firearms or destructive devices

Any attempt or conspiracy to commit violent acts

Peonage, Slavery, Involuntary servitude, Espionage, Sabotage

Forging, counterfeiting, mutilating or altering passport

Failure to Appear if underlying offense is punishable by 5 years

Illegal entry after order of deportation

Commercial bribery, counterfeiting, vehicle fraud

Perjury, obstruction of justice, bribery

 

 An Ag Felon conviction triggers 4 specific consequences for a noncitizen:  (1) deportation; (2) no relief in immigration court; (3) forfeits procedural rights; and (4) greatly increases the sentences for the federal offense of illegal reentry after deportation.  Also, the Ag felon is subject to expedited removal by ICE directly without appearance before an immigration judge.  It is a permanent bar to showing good moral character and therefore, the alien suffers permanent inadmissibility.  The only hope is that a noncitizen may obtain lawful permanent residence through "adjustment of status" or consular processing and relief is still available un the United Nations convention Against Torture which prohibits sending a person back to a country where he or she is likely to be tortured.

If you have lawful permanent residence (a green card) and you subsequently are convicted of a crime, you will need to take some collateral action in the criminal matter before applying for citizenship or other immigration benefit, no matter how old the conviction is.  You need to consult with a competent attorney regarding your options. Consult with us.