Sadly, you may be deported for a criminal offense depending on your immigration status. All non-US citizens, green card holders, F1 and H1B visa holders can be deported back to their home country by the Department of Homeland Security (DHS) and barred from re-entering the United States for a number of years. This risk applies to all non-United States citizens, including:
- Permanent residents, green card holders and other visa holders who have lived legally in the United States for decades and own homes or well established businesses;
- Workers in the United States on L1, E2, 01 and HIB visas charged with DUI or crimes;
- International F1 visa student and J1 exchange visa scholars in the United States;
- Undocumented immigrants who entered the United States illegally or stayed past their visa expiration;
- DACA eligible children of undocumented immigrants;
- Refugees that have been granted asylum;
- Non-US citizens that have a dependent child who is a United States citizen.
Deportable offenses and crime
When passing sentence for a deportable conviction, an immigration judge will order the recording of the foreign national on the immigration deportation list to be deported unless they apply for and receive a waiver for grounds of removal. The list of deportable offenses and crimes include:
- Aggravated felonies as defined in INA § 101(a)(43) (this includes dozens of offenses);
- Crimes of moral turpitude;
- Violent crimes, theft or forgery with imprisonment of at least 1 year;
- Trafficking in guns, illicit drugs, human beings or destructive devices;
- Fraud, tax evasion, or money laundering with losses exceeding $10,000;
- Rape, murder, kidnapping, child pornography or sexual abuse of a minor.
While the above are the most common under United States law, the Immigration and Nationality Act (INA) Act 237 and INA § 101(a)(43) outlines a long list of “crimes of moral turpitude” and “aggravated felony” convictions that form the basis for deportation laws.
What is an aggravated felony?
The list of crimes considered deportable aggravated felonies under immigration law (which is different from criminal law) is extensive and defined under INA § 101(a)(43). Congress frequently adds or changes the offenses on the list. The list of deportable aggravated felonies includes:
- Violent crimes, bribery, counterfeiting, forgery, racketeering, or theft with imprisonment of at least 1 year;
- Rape, murder, or kidnapping;
- Domestic violence, child pornography or sexual abuse of a minor;
- Alien smuggling;
- Owning or operating a house of prostitution;
- Fraud, tax evasion, or money laundering with victim losses exceeding $10,000;
- Trafficking in guns, illicit drugs, humans, destructive devices or explosives;
- Disclosure of classified government information;
- Conspiracy or an attempt to commit aggravated felonies;
- Treason, espionage or terrorism.
Once you are convicted of a crime on the above aggravated felony list, it is very difficult to avoid being placed on the immigration deportation list unless you can prove it is more likely than not that you would be tortured if returned to your native country. These are deportable offenses for green card holders.
What is a crime involving moral turpitude?
As defined in immigration law, a crime involving moral turpitude (CIMT) involves an act that is depraved, dishonest, or vile. Administrative case law has characterized moral turpitude as “a nebulous concept, which refers generally to conduct that shocks the public conscience.” Some examples are rape, fraud, murder, arson, and assault with the intention to rob or kill.
A person may be deported if convicted of a CIMT within five years of admission to the US or if they commit 2 or more unrelated CIMTs at any time after they are admitted. A petty offense exception may apply if the penalty for the crime is less than 1 year.
Can you be deported if you hold a green card?
If convicted of the above deportable criminal offenses a green card holder may be deported. An aggravated felony may be grounds for deportation of permanent residents and immigrants in the United States on H-1B, F1 and other visas. In addition to deportation, a waiver to return to the United States after deportation will generally be unavailable for almost any purpose.
How do criminal charges affect DACA?
USCIS guidelines state to be eligible for Deferred Action for Childhood Arrivals (DACA), recipients must not be convicted of:
- Any felony offense (jail time more than 1 year);
- Driving Under the Influence (DUI);
- Any domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribition or drug trafficking crime;
- 3 or more separate misdemeanor offenses;
- Any other significant misdemeanor sentenced to more than 90 days jail.
The 90 days jail is calculated based on time served and would not include any suspended sentence.
What do you do if charged with a deportable crime?
It is critical to obtain criminal and immigration legal counsel to develop a defense strategy so that you avoid a conviction that permanently renders you inadmissible to the United States. Depending on the circumstances and facts of your case we will work to obtain a dismissal of the charges, fight the charges in a jury trial or negotiate to reduce the sentence or charge to a lesser crime that doesn’t include the risk of deportation.
The Law Office of Christy Horowitz Criminal Defense, APC knows how to defend charges that could lead to your deportation. Contact us to discuss the details of your situation.