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Criminal Defense of Non-Citizens | Berkeley, San Francisco & Oakland Immigration Lawyers
A criminal conviction can cause problems for a non-citizen beyond the immediate criminal punishment. A person who entered the country illegally or who overstayed a visa might come to the attention of Immigration and Customs Enforcement (“ICE”) after being taken into custody by another law enforcement agency. A permanent resident can be deported because of certain criminal convictions such as those involving controlled substances, domestic violence, as well as crimes involving moral turpitude and aggravated felonies. Even if a person is not deported, the conviction could prevent reentry into the United States after a temporary trip abroad. Juvenile adjudications are generally not considered to be convictions for immigration purposes. Even if the offense is not one which would justify a deportation or denial of reentry, a permanent resident can be denied naturalization as a result of a conviction.
Many crimes are classified as crimes involving moral turpitude, including theft, fraud, drug trafficking, and violent crimes (but not simple battery or simple assault). Persons convicted of crimes involving moral turpitude are inadmissible to the United States, meaning they will be denied entry; an exception is made in cases where the alien was convicted of a single crime involving moral turpitude the maximum punishment of which is one year imprisonment or less and less than six months jail was actually imposed. This is called the petty offense exception. A person legally admitted to the U.S. may be removed if the conviction occurred within five years of admission and one year or more imprisonment could have been imposed for that type of offense.
An aggravated felony is a category of crimes including violent crimes such as murder, rape, sexual abuse of a minor and any other violent crime for which the defendant is sentenced to one year or more incarceration; trafficking in drugs or firearms; theft or burglary for which the defendant is sentenced to one year or more incarceration; kidnapping and child pornography; fraud or tax evasion causing a loss of $10,000 or more; and many other crimes, including an attempt or conspiracy to commit any of the enumerated offenses. Paradoxically, a misdemeanor conviction could be classified as an aggravated felony under federal law if a year in jail is imposed. For purposes of classifying crimes, immigration law does not distinguish between a suspended prison sentence and a prison sentence that is actually executed. A person who has been convicted of an aggravated felony at any time can be removed from the United States, is ineligible for asylum and cancellation of removal, and is permanently barred from naturalizing as a citizen.
Another common ground for removal or denial of admission to the U.S. is a conviction for possession of or trafficking in a controlled substance. A non-citizen seeking admission may apply for a waiver of a single conviction for simple possession of marijuana weighing 30 grams or less, but otherwise a person convicted of a controlled substance crime is permanently inadmissible. In the Ninth Circuit (which covers California and certain other western states) a respondent in immigration court may avoid these harsh consequences if he or she obtained an expungement of a first-time simple possession offense. Nationwide, it is also possible to waive the consequences of a drug conviction by applying for cancellation of removal if the conviction is not also an aggravated felony.
A domestic violence conviction after September 30, 1996, is a ground for deportation. Simple assault or battery, even if the victim is a wife or girlfriend, is generally not categorized as domestic violence. Immigration law allows for the deportation or bar to admission of person convicted of several other categories of crimes: firearms, money laundering, alien smuggling, visa and passport fraud, and export law violations.
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