IF YOU HAVE EVER BEEN ARRESTED OR HAD A CRIMINAL EPISODE YOU MAY BE FACING A RISK OF DEPORTATION - EVEN IF YOU DID NOT GO TO JAIL OR YOU THINK THE MATTER WAS DISMISSED!
Any person who is not a citizen of the United States may be deported or removed from the United States if they have a criminal conviction as that term is defined by the immigration laws. The importance of this is that the immigration definition of a conviction is different from the definition of conviction under the laws of most States. This means that persons who are permanent residents of the United States (green card holders), persons who have been granted political asylum, and persons who are in the United States as investors, students, or in any other nonimmigrant status may be removed or deported from the United States if they have a criminal conviction (as that term is defined by immigration law) or if they have ever entered a plea or otherwise admitted to a criminal act.
Factors to consider if you or someone you know has ever been arrested or charged with a crime are:
- A person with a conviction can be placed in removal or deportation proceedings at any time; even if the conviction is very old.
- Many dispositions of criminal cases that are not considered convictions under state law, such as withholds of adjudication, are considered convictions under immigration law.
- Because changes in the immigration laws are applied retroactively, convictions that may not have caused a risk of deportation or removal at the time they occurred can now result in deportation or removal.
- Even if a person's criminal defense attorney assured them that they did not have a conviction, that person may, nevertheless, still have a conviction under immigration law.
- Pre-Trial Intervention or other such diversion programs may not eliminate a criminal charge even if the charge was dismissed after the successful completion of such a program.
- A person can be removed or deported even if he or she has immediate relatives (spouse, children, or parents) who are citizens or permanent residents of the United States.
- The receipt of a full pardon may not eliminate a conviction under immigration law. Especially if the crime was drug related.
- What matters for removal or deportation is the conviction. It does not matter if the conviction did not result in jail time.
- Many persons who do not think they have a conviction are at risk for removal or deportation.
- Every time a person who is not a citizen of the United States enters the United States from a trip outside the United States the U.S. Customs and Border Protection Inspector will check to see if the person has ever been arrested and, if there is an arrest or conviction may detain that person and begin removal or deportation proceedings.
- Persons with certain types of convictions may not be released on bond while they are in removal or deportation proceedings and will have to remain in custody until their case is finalized.
A RECENT U.S. SUPREME COURT DECISION PROVIDES RELIEF FOR PERSONS WHO ENTERED PLEAS IN CRIMINAL CASES Under a recent U.S. Supreme Court decision a person who entered a plea to a criminal charge, regardless of how long ago the plea took place, may be able to have the plea and any resulting conviction set aside if the attorney who represented them in the criminal case did not warn them the plea could result in deportation. Having a criminal matter removed as a result of this U.S. Supreme Court decision will eliminate the conviction for immigration purposes and eliminate the risk of removal or deportation.
ADDITIONAL RELIEF FOR PERSONS WHO ENTERED A PLEA TO A CRIMINAL CHARGE IN FLORIDA AFTER OCTOBER OF 1989 As a result of a decision by the Florida Supreme Court persons who are not citizens of the United States who entered a plea to a criminal charge after October of 1989 may be able to have their criminal plea and any resulting criminal conviction set aside and the underlying charges dismissed if the criminal judge who accepted the plea failed to warn the person that the plea could result in his or her deportation. Having a criminal matter removed as a result of this Florida Supreme Court decision will eliminate the conviction for immigration purposes and eliminate the risk of removal or deportation. There is, however, a limited time to take advantage of this Florida Supreme Court decision. For this reason persons with Florida arrests after October of 1989 should immediately contact an attorney so his or her risk of deportation and eligibility for relief under the recent Florida Supreme Court decision can be evaluated.
WHAT TO DO IF YOU HAVE EVER BEEN ARRESTED If you have ever been arrested the first thing you should do is obtain court certified copies of the arrest report, initial charge, and final disposition for each arrest. The next thing you should do is have an attorney specialized in immigration law review your charges and determine if you face a risk of removal or deportation as a result of the charges. Most important, you should not travel outside the United States, apply for citizenship, apply for an extension of your resident alien card, or contact any agency under the Department of Homeland Security until your criminal history has been reviewed by an attorney who knows both immigration and criminal law.