A Primer on Immigration Consequences for Non-Citizens Who Have Been Charged With a Crime

As an immigration and criminal law attorney practicing in New York and New Jersey, I have navigated the complex intersection of the United States immigration law and criminal charges for my clients. This article aims to elucidate the potential immigration consequences for non-citizens who find themselves facing criminal charges.

Non-citizens facing criminal charges in the United States often find themselves in a precarious situation, as their immigration status can be jeopardized. This intersection between criminal law and immigration law is a crucial aspect that requires careful consideration and expertise from legal professionals.

When a non-citizen is arrested or charged with a crime, it is essential to assess the potential immigration consequences that may follow. Certain criminal offenses can have severe implications on an individual’s immigration status, including deportation or inadmissibility. Crimes involving moral turpitude, such as fraud, theft, or sexual offenses, can result in serious consequences for non-citizens.

Additionally, certain drug-related offenses can have significant immigration consequences. The Immigration and Nationality Act categorizes drug offenses as “aggravated felonies” if the offense involves trafficking or possession with intent to distribute. This classification can result in mandatory immigration consequences, including deportation.

It is important to note that the potential immigration consequences may vary depending on factors such as the seriousness of the offense, the non-citizen’s immigration status, and their prior criminal record. Seeking legal counsel from an experienced immigration and criminal law attorney is crucial in navigating these complexities and protecting non-citizens’ rights.

Moreover, understanding the various forms of relief available is essential when facing criminal charges as a non-citizen. For instance, some individuals may be eligible for cancellation of removal or waivers of inadmissibility if they meet specific criteria. However, these forms of relief require thorough analysis and legal expertise to determine eligibility and navigate the necessary procedures.

In summary, the intersection between criminal law and immigration law is a critical area that demands specialized knowledge and careful consideration. Non-citizens facing criminal charges should seek legal representation from attorneys who are well-versed in both immigration and criminal law to mitigate the potential consequences and protect their rights.

Understanding Citizenship and Immigration Status

Before delving into the consequences of criminal charges, it is essential to understand the basics of immigration status:

  • Permanent Residents (Green Card Holders): Lawful permanent residents are non-citizens who have been granted authorization to live and work in the U.S. indefinitely.
  • Non-Permanent Residents: This group includes non-citizens who are in the U.S. on temporary visas, such as work visas (e.g., H-1B), student visas (e.g., F-1), or tourist visas (B-2).

Criminal Charges and Immigration Status

1. Deportable Offenses

The Immigration and Nationality Act (INA) defines certain offenses that can render a non-citizen deportable:

  1. Aggravated Felonies: The term “aggravated felony” is a term of art in immigration law and includes a broad range of crimes, often less severe than the term implies.
  2. Crimes of Moral Turpitude: Crimes involving dishonesty or immoral conduct can be grounds for deportation.
  3. Drug Offenses: Most drug offenses, except for a single offense of simple possession of 30 grams or less of marijuana, can lead to deportation.

2. Inadmissibility

Certain criminal charges can render a non-citizen inadmissible, which means they cannot re-enter the U.S. after leaving, obtain a green card, or adjust their immigration status.

3. Other Immigration Consequences

  • Denial of Naturalization: Criminal charges can affect a non-citizen’s ability to become a U.S. citizen.
  • Mandatory Detention: Some offenses lead to mandatory detention during the removal proceedings.

Forms of Relief from Deportation

Several forms of relief from deportation are available, and they are numbered for clarity:

  1. Cancellation of Removal: This is available to certain permanent residents and non-permanent residents who meet specific criteria.
  2. Adjustment of Status: Some non-citizens may adjust their status to that of a lawful permanent resident.
  3. Asylum and Withholding of Removal: Non-citizens who fear persecution in their home country may apply for asylum.
  4. U Visa: Available to victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials.

Legal Definitions and Processes

  • INA (Immigration and Nationality Act): The primary body of law governing immigration policy in the U.S.
  • Aggravated Felony: Defined under INA §101(a)(43), covers various crimes ranging from murder to simple theft in some cases.
  • Crime of Moral Turpitude: Not explicitly defined in the INA, but generally includes crimes that shock the public conscience.

Experience of the Author

Drawing upon my years of experience in the fields of immigration and criminal law, I can assert that the intersection of criminal charges and immigration status is fraught with complexities that require skilled legal navigation.

FAQ – Frequently Asked Questions

Q: What constitutes an aggravated felony in immigration law? A: An aggravated felony in immigration law, as defined by INA §101(a)(43), includes a wide range of crimes, not all of which are necessarily ‘felonies’ by state definitions. Examples include theft, filing a false tax return, and failure to appear in court.

Q: Can a non-citizen be deported for a misdemeanor? A: Yes, a non-citizen can be deported for a misdemeanor if it falls under certain categories such as a crime of moral turpitude or a drug offense, depending on the circumstances and the individual’s immigration history.

Q: Is it possible to avoid deportation if charged with a crime? A: It may be possible to avoid deportation through various forms of relief, such as adjustment of status, asylum, or obtaining a U visa, depending on the specific details of the case.

Q: How can a criminal charge affect a Green Card holder? A: A criminal charge can lead to a Green Card holder becoming deportable or ineligible for naturalization, depending on the severity and type of the crime.

Q: Can a criminal charge impact a non-citizen’s ability to obtain citizenship? A: Yes, certain criminal charges can impact a non-citizen’s eligibility for naturalization, particularly if they involve moral turpitude or violate the good moral character requirement.

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