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Deportation Based on a Criminal Conviction
First and foremost: if you do not have a criminal conviction, then the USICE cannot deport you; therefore, you should never accept a plea of guilty to a criminal offense unless you know whether or not it will result in deportation. Therefore, if you are currently facing criminal charges, you should obtain an opinion letter from Chicago Immigration Advocates to let you know whether the case will result in deportation proceedings; in many instances, we can recommend alternative charges and/or sentences which will not result in deportation.
The Department of Homeland Security may place a non- citizen in immigration proceedings if it is able to prepare “charges” against the non-citizen. The charges are only required to have limited merit, enabling the DHS to charge many people who eventually will win their cases and be able to remain in the United States. The DHS begins a case by preparing what is called a “Notice to Appear” which sets forth in detail the reasons for removal or inadmissibility. Again, just because the DHS can prepare charges, does not mean that the person will actually be deported. That is because several waivers are offered to people who commit crimes. For
more details, see the Waivers for Crimes section.
A good immigration lawyer will evaluate, first, whether the crime committed is serious enough for deportation and, second, whether the non-citizen is eligible for a waiver for the criminal offense. Contact us NOW for assistance!
773- 463-1601
Aggravated Felonies and Deportation. Usually, the DHS can deport a non-citizen from the U.S. for committing what it calls an “aggravated felony”. According to the Immigration and Nationality Act (hereinafter “the Act” or “Immigration and Nationality Act”) which authorizes the DHS to deport non-citizens, the definition of this charge can be quite complicated. For instance, “a crime of violence” will be counted as an aggravated felony, but only if the person was sentenced to a prison term of over one year. “Crimes of violence” usually include crimes such as robbery or battery. This means that if the person committed one of these crimes but was not sentenced to prison and only received probation, the crime would not be counted as aggravated felony. That does not mean, however, that it cannot also be classified as a “crime against moral turpitude” which is also a deportable offense.
It is important to determine whether the commission of a crime is an aggravated
felony under the Act before conceding the charges in immigration court. This
is especially important if your only choice is to apply for a waiver. It is
also important to understand the difference between “removable” offenses and
“inadmissible” offenses for the remainder of this discussion of deportation.
See, Inadmissibility
vs. Removability.
Crimes of Moral Turpitude and Deportation. In many cases, misdemeanors as well as felonies which are not “aggravated felonies” may count as “crimes of moral turpitude”. These crimes can also result in deportation proceedings. It is important to remember that during the removal proceedings, DHS will usually not charge the person with committing a crime of moral turpitude unless that crime was a felony. If the crime was not a felony but a misdemeanor, it cannot be the basis for removal. At the same time, two crimes of moral turpitude, no matter what sentences were given, can form the basis to remove. On the other hand, if the inadmissibility provisions of the Act apply, a single crime of moral turpitude, even a misdemeanor, may become the basis for an inadmissibility proceeding if there was a sentence of 6 months or longer.
A “crime of moral turpitude” is a crime during which a person shows that he or she is willing to act in a cruel or immoral way towards another person, e.g. theft, fraud, battery with serious injury, etc. Determining if a particular offense is, indeed, a crime of moral turpitude requires a case-by-case evaluation. As in most immigration cases, winning the case will depend entirely on the skilled legal research done by the immigration deportation lawyer.
Prison Sentencing and Deportation. A person can be deported under the inadmissibility provisions of the Act if he or she commits one crime of moral turpitude and is then sentenced to more than 6 months in prison. As stated above, however, if the removal provisions apply, then the offense would have to be a felony. See, Inadmissibility vs. Removability [Link]. Usually, however, when a person commits a misdemeanor as a “first time offense”, he or she is not sentenced to prison but receives supervision, probation, or 60 days in jail. In first time offense cases, the Act will provide an exception if the person was not sentenced to prison. However, if the person commits two or more crimes of moral turpitude, and the removal provisions apply, and deportation proceedings will begin under the removal provisions of the Act even if she or he was not sentenced to prison for any of the crimes.
Drug offenses. A person cannot be deported for a drug offense provided that if is a single offense of marijuana possession and the amount is less than 30 grams of marijuana. For all other types of drug offenses, it will result in deportation proceedings. It should also be noted that for drug offenses, they are not waivable by USCIS if you are seeking re-admission after a voluntary departure.
Gun Offenses. A gun offense can result in removal proceedings but will not result in inadmissibility proceedings. The inadmissibility provisions of the Immigration and Nationality Act do not contain any prohibitions against guns. Therefore, if a non-citizen who is not already residing in the U.S. is seeking to enter the U.S. and has committed a gun offense of some kind, he or she cannot be deported. However, if a non-citizen is already residing in the U.S, she or he can be deported for committing a gun crime.
Deportation proceedings based on criminal conviction are very nuanced and complicated. If you’re in need of a top criminal deportation lawyer in the Chicago area, Chicago Immigration Advocates Law Offices is your answer.
Call us at 773-463-1601 right now about your case for an appointment.
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