Immigration Consequences of Criminal Convictions
Criminal Cases and Immigration Consequences/Deportation
The Chicago criminal defense attorneys at John D. Ioakimidis have extensive experience in representing individuals charged with various criminal offenses throughout Cook County, Lake County, DuPage County and Kane County. Non US citizens have to consider the immigration consequences that a criminal case could have. A criminal conviction may be catastrophic because it may lead to deportation or denial of citizenship.
The deportation process is often referred to as criminal immigration or criminal deportation. There is no separate criminal or felony deportation process when a person is being deported. The process starts when the Department of Homeland Security initiates removal proceedings of a non-citizen for conviction of a crime.
It is important that the non-us citizen be represented by a lawyer, or as some refer to as, a Deportation Lawyer, Criminal Immigration Attorney or Criminal Deportation Lawyer. The law doesn’t recognize a legal specialty in Immigration Law. Thus, it is important that the non-US citizen be represented by a lawyer or attorney who is experienced in immigration and criminal law matters.
Criminal immigration can have devastating consequences if not handled properly. The Chicago criminal defense attorneys at John D. Ioakimidis understand the immigration consequences that a criminal case can have and understand the rules and procedures of the Department of Homeland Security (Immigration). To discuss your particular Illinois criminal case and any potential immigration consequences of a criminal record, call the experienced Chicago criminal defense attorneys at John D. Ioakimidis.
Know Your Rights!
Under United States law, when you are questioned by immigration agents or U.S. Immigration and Customs Enforcement (ICE) agents or other police or law enforcement officers, you do not have to answer the following questions:
- When and where you were born
- Your address
- Where your parents were born
- Where you lived before living in the United States
- Where you come from
- How you came to the United States
- What is your nationality
- Where your passport is from
- Whether you have a Social Security number or not
- Whether you or your family members have a U.S. permanent residence (green card) or other immigrant documentation
You do not have to answer these questions if you are questioned by Immigration Agents or other law enforcement officers.
You can choose to answer other questions, such as your name, however, if you are unsure what questions to answer, the best thing to do is to assert your rights by remaining silent and to ask to speak to an attorney. Remember, what you say can be used against you later in the legal process.
1. When is a Non-Citizen Subject to Deportation/Removal Proceedings?
The Department of Homeland Security (Immigration) will initiate removal proceedings of a non-citizen if convicted of a crime that is considered:
- an Aggravated Felony that was committed at any time after admission to the United States and/or
- if convicted of a crime involving Moral Turpitude that was committed within a) five years of admission and b) that is punishable by imprisonment of at least one year. The key word is punishable. The actual sentence imposed is not the controlling factor. The Department of Homeland Security (Immigration) will look at whether the person could have been imprisoned for at least one year. However, if the alien is convicted of two crimes involving moral turpitude, they will be subjected to removal even if has been more than 5 years after admission.
In addition, the following convictions are also grounds for removal criminal deportation:
- convicted after admission of any violation of a federal, state, or foreign law or regulation relating to a controlled substance (other than a single offense for possessing 30 grams or less of marijuana for personal use);
- is, or at any time after admission has been, a drug abuser or drug addict;
- is convicted at any time after admission of an offense related to a firearm or destructive device (including unlawful commerce relating to, possession, or use of a firearm or destructive device);
- is convicted at any time of an offense related to espionage, sabotage, or treason or sedition, if the offense is punishable by imprisonment of five years or more; is convicted of an offense under the Military Selective Service Actor the Trading with the Enemy Act;
- is convicted of an offense under 18 U.S.C. 758 (High-Speed Flight from an Immigration Checkpoint);
- is convicted of threatening by mail the President, Vice President, or other officer in the line of presidential succession;
- is convicted at any time after entry of a crime of Domestic Violence, Stalking, Child Abuse, Child Neglect, or Child Abandonment; or
- violates an Order of Protection related to violence or harassment.
The Chicago criminal defense attorneys at John D. Ioakimidis have extensive experience in representing individuals charged with various criminal offenses throughout Cook County, DuPage County, Lake County and Kane County. Non US citizens have to consider the immigration consequences of a criminal record. A criminal conviction may be catastrophic because it may lead to deportation and/or denial of citizenship.
2. What Is Considered A Conviction For Purposes of Deportation?
Here is what the Department of Homeland Security (Immigration) considers when determining whether a case is considered a conviction for immigration purposes which can lead to criminal deportation or felony deportation.
- If a judge or jury has found the alien guilty, or, the alien has entered a plea of guilty or nolo contendere (no contest), or, has admitted sufficient facts to warrant a finding of guilt, AND
- the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
It is important to note that just because under state law a sentence is not considered a conviction does not mean that that alien has not been convicted under federal law. For example, in many cases, a Defendant will plead guilty to a crime and will receive a sentence of “supervision.” Under federal law, the plea of guilty would be considered a conviction even though under state law it would not. (See 8 U.S.C. 1101(a)(48)(A)).
The critical point is that there is a difference between what is considered a conviction under state law and what is considered a conviction for immigration purposes.
The Chicago criminal defense attorneys at John D. Ioakimidis have extensive experience in representing individuals charged with various criminal offenses throughout Cook County, DuPage County, Lake County and Kane County. Non US citizens have to consider the immigration consequences of a criminal case. A criminal conviction may be catastrophic because it may lead to deportation and/or denial of citizenship.
3. What Crime is Considered an Aggravated Felony for Deportation Purposes?
Section 101(a)(43) of the Immigration and Nationality Act (INA) defines “Aggravated Felony” through the listing of a number of specified crimes AND other felonies which include:
- any crime of violence (including crimes involving a substantial risk of the use of physical force) for which the term of imprisonment is at least one year;
- any crime of Theft (including the receipt of stolen property) or Burglary for which the term of imprisonment is at least one year;
It is important to note that in order for the crime to be considered an Aggravated Felony, the sentence imposed must be for one year as opposed to the crime allowing for a one year sentence. In other words, if a crime allows for a 1 year sentence and the non-citizen is sentenced to 3 months, it would not be considered an Aggravated Felony unless it falls under the list of specific felonies listed below.
The Department of Homeland Security (Immigration) lists SPECIFIC FELONIES that are considered Aggravated and they include:
- Murder, Rape,
- Sexual Abuse of a Minor,
- Illicit Trafficking in a Controlled Substance, including Federal Drug Trafficking Offenses,
- Illicit Trafficking of a Firearm, Explosive, or Destructive Device, Federal Money Laundering or Engaging in Monetary Transactions in property derived from specific unlawful activity, if the amount is more than $10,000,
- any of various Federal Gun and Explosives Cases,
- any of various federal offenses relating to a demand for, or receipt of, Ransom;
- any of various federal offenses relating to Child Pornography;
- a Federal Racketeering Offense;
- a Federal Gambling Offense (including the Transmission of Wagering Information in Commerce if the offense is a second or subsequent offense) which is punishable by imprisonment of at least one year
- The business of Prostitution or Slavery;
- any of various offenses relating to Espionage, Protecting Undercover Agents, Classified Information, Sabotage, or Treason;
- Fraud, Deceit, or Federal Tax Evasion, if its more than $10,000
- Alien Smuggling, other than a first offense involving the alien’s spouse, child, or parent;
- Illegal Entry or Reentry of an Alien Previously Deported on account of committing an Aggravated Felony;
- an offense relating to Falsely Making, Forging, Counterfeiting, Mutilating, or Altering a Passport or Immigration Document if:
- the term of imprisonment is at least one year and
- the offense is not a first offense relating to the alien’s spouse, parent, or child
- Failure to Appear for Service of a Sentence, if the underlying offense is punishable by imprisonment of at least five years
- Bribery, or Counterfeiting, or a Forgery, or Selling in cars with Altered Identification Numbers, that carries a prison sentence of at least one year
- an offense relating to Obstruction of Justice, Perjury or Subornation of Perjury, or Bribery of a Witness, for which the term of imprisonment is at least one year
- an offense relating to a failure to appear before a court pursuant to a Court Order to answer to or dispose of a charge of a felony for which a sentence of two years imprisonment or more may be imposed and an Attempt or Conspiracy to commit one of the foregoing offenses.
The Chicago criminal defense attorneys at John D. Ioakimidis have extensive experience in representing individuals charged with various criminal offenses throughout Cook County, Lake County, DuPage County and Kane County. Non US citizens have to consider the immigration consequences of a criminal record. A criminal conviction may be catastrophic because it may lead to deportation and/or denial of citizenship. To discuss your particular Illinois criminal case and any potential immigration consequences, call the experienced Chicago criminal defense attorneys at John D. Ioakimidis.
4. What is a Crime of Violence for the Purpose of Defining an Aggravated Felony?
As noted above, Aggravated Felony includes a Crime of Violence for which the term of imprisonment is at least one year. This definition incorporates 18 USC 16, which defines Crime of Violence as:
- an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
- any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Thus, subsection (a) does not state that the offense must be a felony, but subsection (b) does. In determining whether an offense is a felony, courts vary in their approach as to using state or federal tests. Federal law defines a felony as an offense that is not otherwise classified where the maximum term of imprisonment authorized is more than one year. For an offense to be a felony under federal law, it must have a possible sentence of more than one year, not exactly one year or less than one year. Criminal immigration as some refer to it can have devastating consequences if not handled properly.
5. What is a Crime Involving Moral Turpitude?
Whether a crime involves Moral Turpitude is determined by the Immigration judge by examining the elements of the crime and administrative case law. This determination is on a case by case basis. The non-immigrant’s immigration criminal record is the basis for review. There is no statutory definition of moral turpitude. In general, if a crime manifests an element of baseness or depravity under current mores, if it evidences an evil or predatory intent, it will be considered as Moral Turpitude. Thus, certain crimes such as Murder, Rape, Blackmail, and Fraud have been considered crimes involving Moral Turpitude, whereas crimes such as simple Assault have not been considered as involving Moral Turpitude. Immigration and criminal law is often complicated a non-us citizen’s criminal record has direct consequences of his/her immigration status.
6. How do you Know When a Crime is an Aggravated Felony or a Crime Involving Moral Turpitude for Deportation Purposes?
(See chart and table of cases below) In terms of aggravated felonies, we know that if the crime falls under the specific crimes as noted above, then there is no issue because by definition they are Aggravated Felonies.
As to crimes not listed, it comes down to a case by case analysis. Attached find two charts in PDF format that give you a great deal of information about whether a crime is considered an Aggravated Felony:
- Illinois Crimes (National Lawyers Guild)
- Federal Offenses (National Lawyers Guild)
The above information is valuable because it allows you to cross reference your crime and determine if it falls within the definition of Moral Turpitude or Aggravated Felony. However, as a quick reference as to whether a crime involves Moral Turpitude, consider the following:
- Assault Cases – for Deportation
A conviction for simple Assault does not involve Moral Turpitude. An Assault offense that requires a mental state of criminal recklessness does not involve Moral Turpitude unless the statute also requires that the Assault result in serious bodily injury. Nevertheless, a conviction for an Assault offense where injury to a spouse or child is an element of the offense involves Moral Turpitude. A conviction for Assault With a Deadly Weapon is also a conviction for a crime involving Moral Turpitude. A criminal record for immigration purposes has significance regardless of the crime.
- Theft Offenses – for Deportation
A conviction for an offense that includes as an element the intent to deprive the rightful owner permanently of their property involves Moral Turpitude. A conviction for Possession of Stolen Property involves Moral Turpitude without considering how big or how small the offense was. Theft is also considered an Aggravated Felony if the sentence is one year or more. Criminal immigration as some refer to it can have devastating consequences if not handled properly.
- Driving Under the Influence Offenses (DUI) – for Deportation
A conviction for Driving Under the Influence (DUI) is not a crime involving Moral Turpitude. Further, a second DUI offense does not change the character of the offense. It simply does not involve Moral Turpitude. However, a conviction for Driving Under the Influence (DUI) will be considered Moral Turpitude when an element of the offense was that the defendant knew or should have known that the authorities had revoked his license. So if you are charged with a DUI with a revoked license, it will be considered a crime involving Moral Turpitude.
- Firearms (UUW) – You Will Be Deported
A non citizen faces removal from the United States if they have a single conviction for purchasing, selling, using, owning, or possessing a firearm in violation of law.
- Domestic Violence or Domestic Battery – You Will Be Deported
- Violation of an Order of Protection – You Will Be Deported
You will be subject to deportation if you are found by a criminal or civil court to have violated the portion of the order that protects against credible threats of violence, repeated harassment, or bodily injury.
To discuss your particular Illinois criminal case and any potential immigration consequences, call the experienced Chicago criminal defense attorneys at John D. Ioakimidis.
7. What Happens After a Non-Immigrant/Alien is in Custody?
When a non-immigrant is in criminal custody, a Bond will be set by the criminal court. However, if the non-immigrant is illegally in the United States, the Department of Homeland Security will place an immigration hold. That means, that the non-immigrant will remain in custody until his case finishes. Upon completion of the case, U.S. Immigration and Customs Enforcement (ICE) will place the non-immigrant in custody and initiate deportation proceedings.
As for non-immigrants who are lawfully in the United States, such as a person with a Green Card who has been convicted of an Aggravated Felony or a crime involving Moral Turpitude, ICE will place that person in custody upon completion of their sentence and then initiate deportation proceedings. In other words, even a person who has been in the United States for 20 years but only has a Green Card will be subject to deportation upon completion of their sentence. It is very important to determine if a given plea will lead to deportation because the consequences can be severe. Imagine having to serve a number of years in state prison only to find out that upon your release ICE will be waiting to deport you to your country of origin. Criminal immigration as some refer to it can have devastating consequences.
8. The Removal Process (Deportation By The U.S, Department of Justice)
Within the U.S. Department of Justice, more than 200 Immigration Judges located in 53 Immigration Courts nationwide conduct proceedings and decide individual removal/deportation cases. Removal proceedings account for approximately 80 percent of Immigration Judge’s’ caseload. Federal Rules of Evidence apply in Immigration Court. Therefore, an Immigration Judge has greater authority to consider most kinds of evidence in deciding a case. The types of proceedings an Immigration Judge may preside over are briefly discussed below. The removal process, often referred to as criminal immigration, is for deportation of non-Us citizen from the United States for having a criminal record for certain crimes for deportation purposes.
- Removal Hearings/Deportation
Removal hearings/deportation for criminal record for deportation purposes are conducted to determine whether certain aliens are subject to removal from the country. The distinction between exclusion and deportation proceedings has been eliminated, and aliens subject to removal from the United States are now all placed in removal proceedings. There is no such thing as felony deportation, just removal proceedings often referred to as criminal immigration, or criminal deportation. Thus, the removal proceeding is now generally the sole procedure for determining whether an alien is inadmissible, deportable, or eligible for relief from removal. The non-citizen is allowed to hire a deportation attorney or deportation lawyer in the deportation process. The deportation lawyer will try to convince the judge that the criminal record of the non-us citizen for immigration purposes is not sufficient to warrant deportation.
The Department of Homeland Security (DHS), which absorbed the functions of the Immigration and Naturalization Service (INS), is responsible for commencing a removal proceeding. Criminal immigration as some refer to it can have devastating consequences if not handled properly. If the DHS alleges a violation of immigration laws, it has the discretion to “serve” the alien with a charging document, known as a Notice to Appear. This document orders the individual to appear before an Immigration Judge, and advises them of the following things:
- Nature of the proceedings against the individual; Individual’s alleged acts that violated the law; Individual’s right to an attorney; and Consequences of failing to appear at scheduled hearings.
- Removal proceedings generally require an Immigration Judge to make two findings:
- a determination of the alien’s removability from the United States, and
- whether the alien is eligible for a form of relief from removal and the types of relief available to an alien.
- Bond Redetermination Hearings – Deportation – An Immigration Judge conducts a Bond Redetermination hearing for aliens who are in DHS detention. The alien makes a request to the Immigration Judge to lower or eliminate the amount of the Bond set by the DHS. These hearings are generally informal and are not a part of the removal proceedings. This decision can be appealed by either the alien or by DHS to the Board of Immigration Appeals (BIA). The deportation lawyer’s function as this stage of the proceeding are crucial because if the judge sets a high bond, the non-US citizen will be in custody waiting for the deportation process to conclude. Criminal immigration as some refer to it can have devastating consequences if not handled properly within the context of criminal and immigration law.
- Withholding-Only Hearing- An Immigration Judge conducts a Withholding-Only Hearing to determine whether an alien who has been ordered removed is eligible for withholding of removal under U.S. law or the U.N. Convention against Torture (CAT). Criminal law and immigration law are complicated and without the proper legal guidance from a criminal and immigration lawyer, the non-US citizen may face immigration deportation because of a criminal record.
Why do you Need a Lawyer for Your Deportation/Criminal/Immigration Case
For a non US citizen, the immigration consequences of a criminal record can be severe. It is extremely important that the criminal record does lead to deportation proceedings. Criminal immigration as some refer to it can have devastating consequences if not handled properly It is important to talk to a deportation lawyer as soon as possible. Although this area of immigration criminal law is murky to say the least, it is important that any criminal plea and or conviction is structured on such terms as to lessen the possibility that an immigration judge finds that the crime was an Aggravated Felony or a crime involving Moral Turpitude. The criminal record of the non-us citizen, for immigration purposes, is often the deciding factor.