Criminal Offenses

Every year, thousands of immigrants, many of them long-time permanent residents, are placed under removal proceedings because of criminal offenses. Some of these offenses were minor and many may have been committed many years ago. However, there is no statute of limitation in removal proceedings. Many of these offenses are classified as “aggravated felonies” although they are neither “aggravated” nor are they “felonies”. Others are classified as “crimes of moral turpitude”. An example of this is a shoplifting conviction.

We represent many foreign-born persons who the government is trying to deport for minor offenses which occurred years ago. For example, we are currently opposing the deportation of a Canadian man nearing retirement whose wife and two married daughters are U.S. citizens. His crime? He pled nolo contendre to a marijuana possession charge when he was a teenager!

Although the U.S. Supreme Court has recently held that it is the duty of criminal attorneys to advise immigrant defendants of the deportation consequences of pleading guilty or nolo contendre to a criminal offense, the complexity surrounding this issue is simply mind-boggling! Will you be subject to the “categorial” approach or the “modified categorial” approach? Would a particular conviction render you removable, inadmissible or both?

If this is confusing to you, it is all the more reason to educate yourself about the immigration consequences of criminal convictions.

Immigration Consequences of Criminal Convictions – Office of Immigration Litigation (September 2010)

List of Crimes of Moral Turpitude (State Department)

Criminal and Deportation Defense – National Immigration Project of the National Lawyers Guild 

Padilla v. Kentucky – Supreme Court (3-31-10) – Duty of Counsel in Criminal Proceedings to Warn Client About Deportation Consequences of Plea

Duty of Criminal Defense Counsel Representing An Immigrant Defendant After Padilla v. Kentucky (IDP Practice Advisory)

Retroactive Applicability of Padilla v. Kentucky – National Lawyers Guild (6-24-10)

AAO Decision Regarding Use of Marijuana (6-17-09)

Nijhawan v. Holder – U.S. Supreme Court. 129 S. Ct. 2294 (6-15-09) – Whether a Particular Theft Crime is an Aggravated Felony

Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) – Application of “Modified Category” Approach to Crimes of Moral Turpitude

Gonzales v. Duenas-Alvarez U.S. Supreme Court (1-17-07) – A Theft Offense Includes the Crime of Aiding and Abetting a Theft Offense

Lopez v. Gonzales – When is a Drug Offender an Aggravated Felon? – U.S. Supreme Court (12-06-06)

Lopez v. Gonzales Practice Advisories and Media Materials (Immigrant Defense Project) 

Leocal v. Ashcroft – DUI Causing Bodily Harm is Not a Crime of Violence – U.S. Supreme Court (11-09-04)

EOIR FAQ: §212(c) Regulations (8-13-02) 

EOIR Fact Sheet: §212(c) Regulations (8-13-02)