Immigrants, including green card holders, who are convicted of certain crimes may be subject to deportation. Immigrants are subject to strict rules under U.S. immigration laws – including deportation if convicted of a crime. Specifically, immigrants may be deported if they commit an aggravated felony or crime of moral turpitude.
Deportation and Criminal Convictions
An immigrant could face deportation if he or she is criminally convicted. Therefore, a necessary consideration in a criminal defense strategy is the immigration status of the defendant. The defendant may prefer to risk his or her chances with a jury to avoid pleading to a lesser charge if that lesser charge could be interpreted as a crime of moral turpitude.
Crimes of Moral Turpitude and Aggravated Felonies
Crimes of moral turpitude are a fancy way of saying “serious crimes.” A crime of moral turpitude is not well-defined in federal law or even by state law standards. In general, it can refer to anything that is charged as a felony or involves lying. According to the State Department, a crime of moral turpitude involves crimes with the intent to harm a person, fraud, or larceny.
Under the above-definition, petty crimes could be interpreted as crimes of moral turpitude. For example, petty larceny (like stealing lipstick) could be interpreted by immigration authorities as deportation grounds. However, immigration law provides that “petty” offenses that might otherwise be grounds for deportation are excluded.
Specifically, petty crimes that do not result in more than one year of imprisonment. For state crimes, that generally refers to most misdemeanor crimes, such as shoplifting, petty assault, or even a DUI that did not injure any person.
Crimes Later Reduced or Expunged
A 2019 decision by Attorney General Barr found that state-court orders that modify, reduce, or clarify a conviction term have no bearing on deportation proceedings. Therefore, a conviction that is reduced or expunged may not necessarily prevent deportation. However, with the Biden Administration, this policy may change. A state-order may affect deportation proceedings if it goes to the merit of the conviction. For example, if an immigrant successfully overturns his or her conviction based on the merits of the case, he or she may rely on the overturned conviction for deportation defense.
Grounds for Deportation
Immigrants could be subject to automatic removal if they do either of the following:
- Commit two or more crimes of moral turpitude in two separate events, or
- Commit a crime of moral turpitude within the first five years of admission.
The law permits immigrants to be convicted of one crime of moral turpitude after being admitted to the United States for at least five years. Immigrants who are wrongly being subjected to deportation proceedings will need to prove that the crime was committed more than five years after they were admitted.
A convicted immigrant can seek a “212(h) waiver,” which could prevent deportation. To qualify, the holder must (1) have lived in the U.S. for seven years, (2) never committed an aggravated felony, (3) not be a threat to national security, and (4) deportation must cause extreme hardship for his or her U.S. resident family. Ultimately, the waiver depends on the circumstances of the crime.