The United States is truly one of the greatest nations to live. A person can freely express their opinion, practice their religion and be politically active. The U.S. is a nation of laws not men. This is a harsh reality in the United States. Immigration laws are Federal Laws where the letter of the law reigns supreme with no room for interpretation or what I call “slush factor." If a person has committed a criminal act or is convicted of a crime and is not a United States Citizen, the immigration consequences of criminal activity can be extremely harsh.
Historically, criminal law is an immense area of both Federal and State law. More recently, criminal laws have been expanded to encompass a number of areas that would not normally have been thought of as criminal. Normally, people think of bad guys and good guys, bad behavior and good behavior etc. etc. State legislatures and Congress have outlawed a number of activities as criminal. Over the years, the US criminal justice system has become more intolerant that Sweden’s and more punitive (punishable) than Russia’s.
Immigration law is an area of civil law not criminal. Immigration law only becomes concerned if a non-United States Citizen, someone who is here on a non-immigrant visa or a lawful permanent resident or someone who is here illegal, that is without status commits or is convicted of a criminal act. Being out of status is not criminal, it is however, an act that is illegal. Once a person has committed a criminal act, that may render the person ineligible to receive an immigration benefit such as a visa or a adjusting status, such as getting a green card or removable or deportable if that person is a lawful permanent resident or here on a valid visa. There have been instances where people who are present in the United States without status can be involved in a car accident and end up being in detention because they do not have the proper papers to demonstrate that he or she is present in the United States legally.
Two types of crimes that immigration is concerned about are (1) crimes of moral turpitude and (2) aggravated felonies. A crime of moral turpitude is not legally defined. But think of a crime of moral turpitude as one as being inherently evil such as stealing, assault, driving while intoxicated, fraud offenses, robbery, sexual offenses, crimes against property and crimes against the government. Aggravated felonies usually include murder, rape, illicit trafficking in a controlled substance, money laundering, a crime of violence, a theft offense or burglary offense for which the term of imprisonment is at least one year, offenses relating to child pornography, fraud or deceit in which the loss to the victim exceeds $10,000, and alien smuggling. This list is certainly not exhaustive. Certain aggravated felonies subject a non-USC to mandatory detention. Normally, a person maybe convicted, serve their time and at the of the prison sentence, be immediately turned over to Immigration and placed in detention until they are physically removed from the United States.
Aggravated Felony is a term in immigration law that is defined by Federal law not state law. A State law can be a misdemeanor, but an aggravated felony for immigration purposes. Fro example a drug offense that may very well be a misdemeanor under state law is an “aggravated felony" under federal law. For example, under Indiana Law a person can be convicted of a felony, a misdemeanor or an infraction. Sometimes, a criminal defense attorney will negotiate a reduction from a felony to a misdemeanor only to find out later that an immigrant is subject to removal because the record of conviction is an aggravated felony under federal law although a plea deal was carefully crafted as a misdemeanor.
Once the state court renders its final decision and the non-USC is turned over to Immigration and Customs Enforcement, the Immigration Court is only permitted to examine the record of conviction and nothing else. Under limited circumstances, the immigration court can look at other documents such as police records, witness statements and other evidence. Even worse, is if an immigrant is offered a deal such as first offenders program and is convicted under the Indiana Statute for first offenders and marijuana. This Indiana statue permits a “conditional discharge" if a person fulfills conditions of “custody." Once this is complete, there is no record of conviction. Except, this does not apply in immigration law. This is one of many examples of where an immigrant trying to get a green card or a student visa renewed could have real problems. Immigration law will still examine the facts and circumstances of that case and most likely deny an immigration benefit. While illogical, the letter of the law is clear at the Federal level. For immigration purposes, think that there will always be a record of conviction even if a State law says otherwise. Be careful before you accept any plea deal in a criminal matter.
If you are a non-immigrant and facing a criminal matter in the United States, you should seek the counsel of a criminal defense attorney and an immigration attorney. Under a recent Supreme Court decision, a criminal defense attorney is under a duty to advise a non-USC criminal defendant of possible immigration consequences. The best advice is always to stay out of trouble. However, if you end up in a difficult situation, immediately hire an attorney who focuses his/her practice on immigration law and criminal defense .