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A criminal attorney, with limited knowledge of U.S. immigration laws, will normally advise a client to plead guilty to minor charges in exchange for a lesser penalty, such as probation. While such a plea may be wise for the typical U.S. citizen client, it can be a problem for a non-citizen. A guilty plea counts as a conviction with potential immigration consequences. There are also other possible arrangements, such as probation before judgment, that may not be considered convictions under state law, but are convictions under U.S. immigration law. Non-citizens with criminal convictions have become one of the primary concerns of the Department of Homeland Security (DHS). According to DHS, the Bureau of Immigration and Customs Enforcement, under DHS, has now implemented various operations which focus on the removal of non-citizens with criminal convictions who are outside of the jail and prison system. This initiative prioritizes those convicted of: (1) aggravated felonies; (2) crimes of violence; and (3) other crimes rendering the alien deportable. Aggravated felonies are the most serious crimes and are specifically defined by statute in the Immigration and Nationality Act. Because of the sentence imposed by the state criminal court, some common misdemeanor crimes can be considered aggravated felonies for immigration purposes. These crimes include theft and crimes of violence. For both of these crimes a non-citizen can be placed in deportation proceedings and deported from the United States, if the person is sentenced to more than one-year imprisonment, including any suspended time. Crimes of moral turpitude are the second group of crimes that can impact a non-citizen's ability to remain in the United States. The issue of what crimes involve moral turpitude is not always clear, and the definition of that term has evolved over the years through case law. However, it is established that murder, rape, voluntary manslaughter, robbery, burglary, theft, arson, aggravated forms of assault, forgery, prostitution and shoplifting have all been consistently held to involve moral turpitude. A third group of crimes specifically listed in the Immigration and Nationality Act may either trigger deportation or prevent a non-citizen from attaining lawful permanent resident status. Crimes included in this group include violations of any law relating to a controlled substance, domestic violence convictions, judicial determinations of protective order violations and convictions under any law of purchasing, selling, using or possessing a firearm or destructive device. Sentences are often the most important factor in determining the immigration consequences for a non-citizen defendant. Consequently, the Department of Homeland Security will analyze the actual sentence imposed regardless of any time suspended to determine whether to initiate deportation proceedings. Very few immigration remedies exist for non-citizens convicted of crimes. There are almost no legal avenues that prevent the deportation of non-citizens' convicted of an aggravated felony or a controlled substance violation. For these crimes, length of residency in the United States or the existence of spouses, children or parents with U.S. citizenship will not prevent a non-citizen's deportation. For non-citizens convicted of crimes of moral turpitude and domestic violence offenses, limited immigration remedies exist that may prevent deportation. A non-citizen who has come in contact with the police and later charged with any crime should seek competent advice from both a criminal attorney and an immigration attorney before making decisions on how to plead at his criminal hearing Anthony Nwosu, Esq. Law Office of Anthony Nwosu 405 14th Street, Suite 507 Oakland, CA 94612 Tel: (510)788-4558
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