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People's Law Guide

 

When Non-U.S. Citizens Are Arrested & Criminal Charges Are Not Dismissed

08/19/12

                                   Risk of Deportation Has Increased in Recent Years

                                                        

The Federal Government’s “get tough” policies on immigration-related issues is creating havoc for hundreds of thousands or perhaps millions of  non-citizens wanting to remain in the United States. An ever increasing number of people in South Florida are being deported, sometimes years after being found guilty of the types of criminal offenses which, prior to the 1996 enactment of two immigration reform laws, were frequently overlooked by U.S. immigration officials. Also, the Homeland Security Act of 2002, enacted following the September 11th, 2001 terrorist attacks on the World Trade Center and the Pentagon, “streamlined” a deportation process which had been plagued by bureaucratic non-cooperation between various numerous governmental agencies. Today, the Immigration and Nationality Act, also referred to as INA, designates thousands of aliens as deportable or inadmissible, and also labels persons found guilty of many types of criminal offenses unfit to remain in the U.S. as a result of involvement in offenses raising concern about “moral turpitude” or “good moral character.”

Aliens granted temporary stays for academic studies or temporary work and legal permanent residents (LPR’s) face devastating consequences when arrested for the types of criminal offenses which have significantly less life-disrupting impact on U.S. Citizens. Convictions for a number of criminal offenses, including but not limited to those listed below, jeopardize one’s ability to remain in the United States:

1.         Certain DUI offenses, including circumstances involving only misdemeanor charges;

2.         Crimes of violence for which a possible imprisonment term is at least one year in duration;

3.         Any theft offense (including non-violent shoplifting or the receipt of stolen property) having a possible imprisonment term exceeding one year in duration;

4.         Crimes involving controlled substances / illegal drugs other than possession (without intent to sell / distribute) 30 grams or less of marijuana;  

5.         Certain offenses involving prostitution, gambling, pornography; commercialized vices and certain misdemeanor sexual acts;

6.         An offense relating to a failure to appear in court to answer to certain types of felony charges.

7.         Two or more convictions arising from offenses involving moral turpitude offenses.  


Criminal convictions also imperil the prospects for obtaining asylum by aliens. 

Realizing the “get tough” terms of new immigration laws are tearing families apart by uprooting many hard-working longtime residents, numerous members of the House of Representatives and the Senate have tried to minimize harsh consequences imposed on hundreds of thousands, and perhaps, millions of aliens residing within the U.S. To date, no new laws have passed to roll-back these strict policies. U.S. Representative Bob Filner of California stated the following about the non-forgiving aspects of America’s new immigration laws:

...people were defined as felons in a new way.  They were picked up off the streets in the middle of the night, deported without any due process – and these were legal people, here legally, but may have committed some crime, even shoplifting 20 or 30 years ago.

Clever and creative approaches when a criminal defense attorney plea-bargains with the prosecutor can be critical, because the following circumstances can arise: 

* A suspended 1-year sentence for misdemeanor theft may be considered an aggravated felony for deportation purposes.

* If a sentence of at least a year of confinement is imposed (regardless of suspension), a crime can become considered an “aggravated felony” and lead to a denial of continued residency in the U.S.;

* A jail sentence as long as 364 days may lead to a more favorable outcome for immigration purposes than a criminal case resolution involving a probationary term involving a longer, suspended sentence.

* Probation can be a conviction leading to deportation for immigration purposes, even when the alien successfully completes all the requirements imposed by a judge.

* Some misdemeanors can be considered “aggravated felonies” by immigration officials.

* A withhold of adjudication which concludes a case without the imposition of a conviction, which is considered a favorable outcome for defendants who are U.S. citizens, can lead to the deportation of a non-citizen.  

* Certain individuals convicted of so-called aggravated felonies may be lawfully denied hearings before an immigration judge, causing them to be subjected to “expedited removal” or “administrative removal.”

* “Moral turpitude” offenses arise even with criminal charges involving theft and larceny of

inexpensive products and  items.  


Further complications arise when federal immigration officials conduct “sweeps” at probation offices run by state and county governments. Local and state probation officers are given the “discretion” to “tip-off” the “Feds” that they are supervising non-citizens. In Florida, the Department of Motor Vehicles has a policy to alert Federal officials when aliens having outstanding warrants for their arrest apply for new drivers licenses or seek renewals of existing driving permits. Immigration officers do “visit” Florida drivers licenses offices from time to time, attentive to clerks whom encounter those unlawfully in the U.S.  If pulled-over for non-criminal driving offenses such as  speeding or making an improper turn can lead to an encounter with a local police officer who may radio Federal authorities that drivers and their passengers my have questionable immigration status.  Even those aliens with criminal convictions who have avoided detection while remaining within America’s borders often are “rounded-up” when returning to the U.S. after visiting foreign countries.

It’s important that an alien charged with committing one or more  illegal acts  retain the services of an experienced, competent criminal defense attorney, because criminal charges which pose just a minor concern to a U.S. citizen carry serious implications for those who have not yet become naturalized citizens, including:

* Denial of a visa at an American embassy located in another country;

* Denial of a change of status from a category of a visa to another category;

* Denied adjustment of status:

* Denied naturalization:

* Commencement of removal proceedings and charges of inadmissibility at ports of entry: and,

* Deportation.

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