You represent a person facing criminal prosecution. Your instincts are to try to minimize
the person’s exposure to punishment. Your concerns regarding collateral consequences are
minimal. However, if your client is not a citizen of the United States, collateral consequences –
the risk of deportation – may be the most important of all your concerns. Failing to consider the
immigration consequences will be doing a serious disservice to the client and is, at a minimum,
ineffective assistance.
I. Is your client an alien?
Your clients can be divided into two categories – citizens 1
and aliens. If your client is a
citizen, there will be no immigration consequences to a conviction. Many a time an immigration
practitioner represents a client who is detained by Immigration and Customs Enforcement and
whom Immigration and Customs Enforcement insists with great passion will cause great harm to
the community if allowed out of its detention. Upon accepting proof that the detainee is a United
States citizen, he is immediately released. Determining whether a client is a citizen can be quite
simple or can be quite involved. The first step, however, in making an immigration-consequences
analysis is figuring out if there is an immigration issue in the first place, i.e., whether your client
is or is not a United States citizen.
A. Birth in the United States
Far in excess of 99 percent of the time, if your client was born in the United States, he or
she is a United States citizen and concern about immigration consequences can be laid to rest 2
.
The children of diplomats do not acquire citizenship at birth 3
. People are able to renounce their
citizenship. If they have, they will know it because acts of renunciation cannot be passive or
unintentional acts. Applying for a foreign passport, for example, is not a denunciatory act 4
.
B. Transmission
The Immigration and Nationality Act defines citizenship. It is a very complicated body of
law because citizenship can be transmitted from parents to children and the rules of transmission
undergo changes from time to time, but are seldom retroactive. Thus a client born in 1986 may
be subject to different rules of transmission than a client born in 1982 or 1971 or 1968 or 1952.
Transmission may occur when one or both of the parents are or become United States citizens.
Issues of transmission revolve around whether one or both parents were citizens before or after
the client’s birth, whether one or both parents were married before or after the child’s birth,
whether it is the mother or father who is or becomes the citizen, how old the client was when his
parent or parents became citizens, and whether and for how long the parents lived in the United
States.
Charts are published outlining the different methods of transmission and how they
operate for clients of different ages. The Department of States’s Bureau of Consular Affairs has
produced a chart that makes the analysis relatively straightforward.
Even a seasoned naturalization expert will want to consult the code and charts before
making a decision as to whether a client likely is or is not a United States citizen. Further,
because there are sometimes distinctions between whether a mother or a father is the citizen
parent and transmitting citizenship, equal protection arguments can arise and whether a client is a
citizen can be a subject of litigation, usually unsuccessful. Some rules of thumb are well-established. If both parents naturalized before a child is 18 and the child is a permanent resident,
the child is a citizen. This rule has recently become more generous so that even if one parent
naturalizes, the permanent resident child becomes a citizen as long as the parent has legal and
physical custody of the child and the child resides in the United States. This new rule applies
only to aliens who will not have turned 18 on February 27, 2001 5
. If one parent of a married
couple is a United States citizen at the time the child is born and lived in the United States for ten
years before the child was born, five after the parent was 14 years old, the child is a United States
citizen. The rule was eased in 1986, requiring five years of residence prior to the child’s birth,
two of them after age 14.
C. Naturalization
Aliens over age 18 can apply to naturalize. Children under 18 who are not citizens via
transmission can sometimes become citizens through their parents’ applying for them.
Naturalized citizens are as much citizens as those who are born in the country or are citizens
through transmission, and are completely insulated from deportability. Some wartime veterans
can naturalize and render themselves deportation-proof. See discussion, infra.
II. Criminal grounds of deportability and inadmissibility.
Congress has determined that anyone who is not a United States citizen can be subject to
deportation or not allowed to be admitted to the United States based on past criminal conduct.
Being denied admission and being deported are collectively referred to as “removal.” The
Immigration and Naturalization Act lists the grounds of inadmissibility at INA § 212 [8 U.S.C. §
1182]. These grounds apply to aliens who have been apprehended at the border or who came into
the United States without being inspected and admitted by an immigration officer. The grounds
of deportability are found at INA § 237 [8 U.S.C. § 1227] and apply to aliens who have been
admitted into the United States. There are many ways to be deported or denied admission other
than committing a crime and quite frequently there is no need to be convicted to be placed in
removal proceedings, the administrative process by which aliens are ordered removed from the
United States.
The most fail-safe method to ward of the specter of deportation is to make sure your
client does not admit to or become convicted of a removable offense. Thus, for example, if your
client has the choice of being under the influence of alcohol or drugs, choose a guilty plea for
being under the influence of alcohol, because this would not be a deportable conviction while
being under the influence of a drug on the federal list of controlled substances would be a
conviction of a controlled substance violation 6
. [Having a client plead guilty to a drug that
remains unspecified on all documents relating to the conviction could also save your client, as
without evidence of what the controlled substance was, the crime may not be considered a
controlled substance offense 7
.] A chart listing the removability offenses is provided at the end of
this article.
III. Relief from Removal
If it is inevitable that your client who is not a citizen must plead guilty or will otherwise be
convicted of a removable offense, the next step it to try to fashion a plea that at least affords your
client some sort of relief, if possible. If you learn that your client has relief available to him, at
least you can accept a plea rather than risking a trial and a more severe punishment. For example,
because even misdemeanor spousal battery (Cal. Penal Code 243(e)) can be a deportable offense 8
,
if relief is available it may be worthwhile to plead to it and accept a minor punishment. The
alternative of going to trial and facing a conviction for a felony, like Cal. Penal Code 273.5, which
is always a deportable offense could be a lot worse. If a sentence of a year or more is imposed,
even if suspended 9
, it would render your client an aggravated felon and ineligible for the most
common form of relief, Cancellation of Removal for Certain Permanent Residents. It is important
to be familiar with the requirements of Cancellation and other forms of potential relief to make
sure that your client is at least eligible for them.
A. Cancellation of Removal for Certain Permanent Residents.
The principal form of relief for criminal aliens is Cancellation of Removal for Certain
Lawful Permanent Residents, INA § 240A(a) [8 U.S.C. § 1229a(a)]. The statute reads:
Cancellation of removal; adjustment of status
(a) Cancellation of removal for certain permanent residents. The
Attorney General may cancel removal in the case of an alien who
is inadmissible or deportable from the United States if the alien—
(1) has been an alien lawfully admitted for permanent residence
for not less than 5 years,
(2) has resided in the United States continuously for 7 years after
having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
This statute must be read in conjunction with another, INA § 240A(d) which states:
Termination of continuous period. For purposes of this section,
any period of continuous residence or continuous physical presence
in the United States shall be deemed to end when the alien is served
a notice to appear under section 239(a) [8 USC §1229(a)] or when
the alien has committed an offense referred to in section 212(a)(2)
[8 USC §1182(a)(2)] that renders the alien inadmissible to the
United States under section 212(a)(2) [8 USC §1182(a)(2)] or
removable from the United States under section 237(a)(2) or
section 237(a)(4) [8 USC §1227(a)(2) or (4)] , whichever is
earliest.
Thus to be eligible for the Cancellation of Removal waiver, the alien first must be a
permanent resident. In the majority of cases, if your client is not a permanent resident and has a
committed a removable offense, he will end up being removed.
Additionally, the alien must have seven years of residence after a lawful admission. This
seven-year clock stops on the date the alien commits most removable offenses or on the date he
is issued a notice to appear, whichever comes first. This provision of the law is referred to as the
“stop time” provision. As an example, if an alien enters the United States with a lawfully issued
visa in 1994 and commits a deportable act referred to in INA § 240A(d) in 2000, he will not
have the seven years residence and will not be eligible for a pardon. Noteworthy is that the
operative date is the date of commission of the criminal act and not the date of conviction. It is
not unusual for a criminal defense attorney to work very hard to make sure that a client’s most
recent conviction does not render him removable or without relief, only to find out that a past
conviction, renders the alien removable and without the availability of a pardon because the
earlier conviction cuts off the seven years 10
.
Interestingly, the accrual of five years of permanent residence is not cut off by the
commission of a crime or the issuance of a notice to appear. An alien who enters in 1990 as a
tourist, becomes a permanent resident in 1994, and commits a deportable offense (except an
aggravated felony) in 1998, would be eligible for a pardon on the fifth anniversary of his
becoming a lawful permanent resident even if he was already in removal proceedings at the time
he celebrates this fifth anniversary. Sometimes creative pleading allows the client to re-define the
date of commission of a crime so as not to lead to the seven-year stop-time provision. Also,
because of the way the stop-time provision at INA § 240A(d) is written, firearms offenses do not
cut off the seven years. Can you see why? (Hint: Review chart at the end of this article).
The severest limitation on relief is that the alien cannot be an aggravated felon, as defined
at INA § 101(a)(43)(A)-(U). Most creative pleading revolves around trying to make sure that an
alien will not be deemed an aggravated felon. This can happen in cases like welfare fraud, where
skillful plea bargaining can keep the amount of the fraud below the $10,000 amount that would
deem it an aggravated felony. Having your client sentenced to 364 days rather than 365 days will
make your client avoid being categorized as an aggravated felon for those offenses that become
aggravated felonies when the sentence is for “at least one year,” like crimes of theft or violence.
2. 212(c) Relief.
Before April 1, 1997, an alien could ask for 212(c), so named because it was found at
INA § 212(c) [8 U.S.C. § 1182(c) ] as a defense in a deportation or exclusion proceeding. After
Congress passed and President Clinton signed the Illegal immigration Reform and Alien
Responsibility Act in 1996, 212(c) relief was replaced with Cancellation of Removal effective
April 1, 1997. In a case of great interest to immigration lawyers who deal with aliens who have
committed crimes, the Supreme Court in St. Cyr v. INS, 533 U.S. 289 (2001), decided that aliens
who pled guilty to crimes before April 24, 1996, that qualified as crimes for which 212(c) was
available, can continue to ask for 212(c) relief today despite the relief having been replaced by
Cancellation of Removal 11
. The existence of the relief affects aliens who are aggravated felons
because 212(c) relief is available to most aggravated felons, while Cancellation of Removal is
not. Also, stop-time provisions do not apply to 212(c) relief. Unfortunately, the Supreme Court’s
resurrection of 212(c) relief does not benefit people who face deportation for crimes they
committed after April 23, 1996.
A limitation of 212(c) relief is that it only applies to crimes that are crimes effecting
inadmissibility and not crimes of deportability. Where a crime of inadmissibility has a crime of
deportability analog, i.e., a ground that is substantially identical, there is no problem, but many
grounds of deportability, like the aggravated felony ground or the domestic violence ground, do
not have a substantially identical ground, which exempts some pre-1997 convicts from seeking
212(c) relief 12
.
3. Immigration and Re-immigration
A classic backdoor method to allow a person to avoid being deported is to immigrate or
re-immigrate the person, i.e., to ask for a (new) permanent resident card. This strategy can work
even if a person already has a permanent resident card. This works most directly if an alien is
subject to deportation, but would not be subject to inadmissibility. The mere act of applying for a
permanent resident visa transfers the alien from being subject to the list of deportability grounds
to the list of inadmissibility grounds. Thus, for example, an alien who is convicted of the offense
of possession of a firearm is deportable and would need a Cancellation of Removal waiver.
Suppose he is not a permanent resident or if he is a permanent resident, he does not have the
requisite seven years after a lawful admission or five years as a permanent resident? He can ask
for a new permanent resident card. As the firearms offense is not a grounds of inadmissibility, the
conviction will not bar his adjusting status to permanent resident status. Similarly and
surprisingly, the same is true for the aggravated felony ground and in some cases, an aggravated
felon can seek relief through getting a permanent resident card. This strategy only will work if
there is a means of getting the new visa. The client must either be married to a United States
citizen; have an adult (over age 21) United States citizen son or daughter; be under 21 and have a
United States citizen parent; or have an approved petition and be current on the waiting list in
some other immigrant visa category.
The first step in this process is to see if there is a ground of inadmissibility ground that
will thwart the plan. Suppose the client is charged with removability for being an aggravated
felon for robbing a bank and being sentenced to a year in jail. While the crime is an aggravated
felony and not a ground of inadmissibility, the crime is also a crime of moral turpitude and thus a
ground of inadmissibility as well. Thus, unless the crime comes under the petty crime exception
(one crime where the potential sentence does not exceed one year and the actual sentence did not
exceed six months) 13
, the client cannot adjust status to that of a permanent resident.
The analysis does not end there, as there is a waiver for crimes of moral turpitude when
adjusting status for those who do not come under the petty crime exception. It is found at INA §
212(h) [8 U.S.C. § 1182(h). The requirements are that the conviction be 15 years old, or, more
relevantly, the alien is the spouse, parent, son, or daughter, of a United States citizen or lawful
permanent resident who would suffer extreme hardship if the alien is deported. There is one
difficult other requirement. The pardon is not available to those who already are permanent
residents if they are aggravated felons or have not accrued seven years of lawful residence before
the initiation of removal proceedings. These two conditions serve to sharply reduce the
availability of a 212(h) waiver for lawful permanent resident clients. Also, the pardon only
applies to crimes of moral turpitude, multiple criminal convictions, a conviction of possession of
30 grams or less of marijuana, and the prostitution and commercialized vice grounds of
inadmissibility. Thus, an alien who commits the crime of being under the influence of
methamphetamine and who is not eligible for Cancellation of Removal cannot ward of
deportation through obtaining a new grant of permanent residence with a waiver because the drug
crime is a non-waivable ground of inadmissibility as a controlled substance violation.
Further, a regulation states that a 212(h) waiver is not available to those who have
committed violent or dangerous crimes, except in extraordinary circumstances, such as those
involving national security or foreign policy considerations, or cases in which an alien clearly
demonstrates that the denial of the application for adjustment of status or an immigrant visa or
admission as an immigrant would result in exceptional and extremely unusual hardship.
Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of
extraordinary circumstances might still be insufficient to warrant a favorable exercise of
discretion under section 212(h)(2) of the Act 14
.
In the following example, the strategy of seeking adjustment of status might work. A
client is charged with a sexual abuse of a minor charge. A conviction would be a ground of
deportability for being child abuse and.an aggravated felony because it would be considered a
sexual abuse of a minor crime 15
. Being an aggravated felony, the alien is ineligible for
Cancellation of Removal. Counsel arranges for a guilty plea to Cal. Penal Code § 261.5(c),
misdemeanor child molestation and a 90 day sentence. He accepts this deal because the client is
married to a United States citizen and he could apply for a new permanent resident card through
her. Applying for permanent residence moves the client to the grounds of inadmissibility list
rather than the grounds of deportability list. The aggravated felony and child abuse crimes have
no direct analogs on the inadmissibility side. The only relevant crime is the crime of moral
turpitude. Because the conviction is a misdemeanor and there is a 90 day sentence, the alien
would not be inadmissible because of the petty crime exception. Because there is no ground of
inadmissibility, he does not need the waiver of inadmissibility that would be barred to him
because he already had a permanent resident card and is considered an aggravated felon.
There is an important caveat! Adjustment of status is a discretionary grant and an
immigration officer or immigration judge can deny adjustment even if there is no statutory
hindrance to adjustment. In a case of child sexual abuse, a denial is not unlikely. The same can be
said for Cancellation of Removal and asylum, discussed below.
The same strategy can be used in domestic violence cases. Though a Penal Code § 242
conviction can be a deportable crime of domestic violence, particularly if the client is sentenced
under Penal Code § 243(e), if the client was sentenced to less than six months, he may be eligible
to apply for permanent residence and stave off deportation because of the petty offense
exception.
4. Naturalization
In the case of veterans during wartime, including the Vietnam War (from February 28, 1961,
to October 15, 1978), the Persian Gulf War (from August 2, 1990, to April 11, 1991), and the
War on Terrorism (from September 11, 2002 with no terminating date yet set), being in
deportation proceedings is not a bar to becoming a citizen. The requirements are active duty
service during a period of hostilities and an honorable discharge. Wartime duty does not have to
have been where the war was. Thus, a person who spent September 12, 2002, on active duty in
training at Camp Pendleton, is eligible to naturalize. In all other cases, one in deportation
proceedings cannot naturalize. To naturalize, however, one must be able to demonstrate good
moral character. For a wartime veteran, the period of good moral character is not defined.
However, being an aggravated felon for a crime committed on or after November 20, 1990,
renders an alien one who cannot ever demonstrate good moral character and thus is ineligible to
naturalize 16
. However, a wartime veteran who is not an aggravated felon, or became an
aggravated felon before November 20, 1990, can ward off deportation by applying to naturalize.
Because we are presently in a time of war, it may well be that the best solution for many clients
who are currently facing removal for criminal conduct is to send them to the closest Armed
Forces recruiter.
5. Asylum, Withholding of Removal, and Convention Against Torture
In some instances, a defense to deportation is to ask for asylum 17
, withholding of
removal 18
, or Convention Against Torture 19
relief. Asylum and withholding of removal relief is
available to aliens who face persecution based on their race, religion, nationality, membership in
a particular social group, or political opinion. The standard for asylum is that there be a “well-founded fear” of persecution. The standard for withholding is that the alien “more likely than
not” will face persecution 20
. Convention Against Torture relief is available to any alien who will
face torture if deported regardless of the crimes they committed. Aggravated felons are ineligible
for asylum 21
and persons who have committed “particularly serious crimes” are ineligible for
asylum 22
and withholding of removal 23
.
6. Pardons
The deportation grounds of moral turpitude convictions, aggravated felony convictions,
and high speed flight convictions will not lead to deportation in the case of an alien who receives
a Presidential of a Governor’s pardon 24
.
7. Expungements
Except for one conviction (or concurrent convictions) for simple possession of a
controlled substance, expungements are not effective to ward of immigration consequences of a
criminal conviction. The effectiveness of an expungement of a drug possession conviction only
exists in the Ninth Circuit 25
. The completion of a drug diversion program is also effective in the
Ninth Circuit to ward of removal. A problem often encountered is when an alien is detained
before he can complete a diversion program. The conviction still stands to permit removal and
because the alien will be detained for removal, see, infra, he cannot finish the program that
would defeat a removability charge.
IV. Detention and Bond
The Bureau of Customs and Border Protection and Immigration and Customs
Enforcement have the authority and obligation to detain aliens who are inadmissible to the
United States or subject to deportation from the United States. If your client comes to the border
and is subject to inadmissibility grounds laid out at INA § 212 [8 U.S.C. § 1182] or deportability
grounds at INA § 237 [8 U.S.C. § 1227], he or she is subject to detention. Detention can
commence for an old removability offense. There are no statutes of limitation in the immigration
laws. Your client can be detained and deported for acts he committed decades ago. A client can
also be removed for an offense that was not even a removable offense when he committed it.
While your client may be subject to detention, he or she may be eligible for release. The
law is complicated regarding issues of detention and depending on the circumstances of arrest,
different agencies have the final say regarding release from detention. If the client is caught at the
border and thus considered an “arriving alien,” Immigration and Customs Enforcement has sole
discretion regarding release from detention. If the client has made it into the United States, which
is most often the case for clients of criminal defense attorneys not involved in “border crimes,”
the Immigration and Customs Enforcement has the initial authority to make a decision
regarding release. The Immigration Judge has concurrent authority, so if Immigration and
Customs Enforcement does not allow release or sets a bond that is too high, a hearing before an
Immigration Judge can be requested. While quite often an Immigration Judge will be more
reasonable than the INS, it is not uncommon for an Immigration Judge to deny bond when the
Immigration and Customs Enforcement was willing to set one. It pays to consult with people
with experience with bond hearings before running headlong into one.
Some crimes subject an alien to mandatory detention 26
. Mandatory detention applies to all
aliens subject to inadmissibility for crimes – aliens who are in the United States without having
been inspected and admitted and those caught at the border. For those who entered with
inspection and charged under INA § 237, some, but not all, crimes are subject to mandatory
detention. The crimes that subject an alien to mandatory detention are all the crimes that require a
conviction except:
1. One crime of moral turpitude within five years of admission;
2. Crimes of domestic violence
The grounds of removability for law-breaking conduct that do not require a conviction are
not mandatory detention offenses. Only aliens released from detention after October 8, 1998, are
subject to mandatory detention 27
.
V. Conviction
Another issue that first appears in the early phases of a deportation case is the issue of at
what point detention is mandated. As the mandatory detention grounds require a conviction, the
question is when does the conviction occur. At INA § 101(a)(48) conviction is defined as
follows:
(A) The term “conviction” means, with respect to an alien, a
formal judgment of guilt of the alien entered by a court or, if
adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered
a plea of guilty or nolo contendere or has admitted sufficient facts
to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or
restraint on the alien's liberty to be imposed.
Based on this definition, once a guilty plea is entered, there is a conviction. Conviction is not
contingent on a sentence. Thus, in cases where a criminal court accepts a guilty plea and the alien
expects to go home until sentencing, he can instead be taken into custody. Unfortunately, time
that could have been spent in criminal custody which could be credited to the eventual sentence
is instead served with the INS where credit might not be earned.
CONCLUSION
When dealing with a foreign client in the criminal context, the stakes for the client are much
greater than trying to minimize punishment, as there is little correlation between punishment and
deportability. Your client may be able to trade off more punishment with less risk of deportation.
You must analyze whether the client is a non-citizen and how he can plead to either eliminate the
threat of deportation or at least to preserve his ability to seek relief from deportation. In cases
where any guilty plea will lead to inevitable deportation, going to trial and seeking an acquittal
may be the only way to avoid deportation.
