According to Immigration and Customs Enforcement (“ICE”), over 392,000 individuals were removed (deported) from the United States in 2010. As of July 31, 2011, 324,719 individuals have already been removed from the United States this year. Of those 324,719 individuals, 164,345 were removed based on a criminal conviction. A great deal of my immigration practice is devoted to representing immigrants in removal (deportation) proceedings. These cases are the most costly to defend and the most difficult to win when the client has been convicted of a crime that is considered an aggravated felony for immigration purposes. The most common aggravated felony with which I have had experience is the conviction for possession with intent to distribute whether marijuana or another controlled substance. Other crimes which may be considered an aggravated felony include sexual abuse of a minor, misdemeanor theft with a suspended sentence of a year, “crime of violence” with a suspended sentence of one year, and fraud where the loss to the victim is over $10,000. All non-U.S. Citizens, including persons who have had a green card for 20 years and have U.S. citizen children, can be deported, easily, for a criminal conviction. Therefore, non-citizens are best to avoid any involvement with the criminal justice system. If, however, you find yourself faced with criminal charges, make sure that your conviction is not one for an aggravated felony. Here’s why:
- Aggravated Felons are not Eligible for a Bond
In most cases, a conviction for an aggravated felony would render an immigrant ineligible for a bond during removal (deportation) proceedings. This means that the immigrant must remain incarcerated until he/she is finally deported or otherwise released from custody.
- Aggravated Felons are Not Eligible for Humanitarian Relief
Under international law, countries have an obligation not to return a person to a country where he/she reasonably fears persecution based on race, religion, nationality, membership in a particular social group or political opinion. Immigration laws adopted by the U.S., out of concern for public safety, among other reason, breaches international law. A conviction for an aggravated felony renders an immigrant ineligible for asylum. It also renders an alien ineligible for withholding of removal in those situations where the aggravated felony qualifies as a particularly serious crime. This is also true for the relief of Withholding under the Convention Against Torture. Temporary Protected Status (“TPS”) is also unavailable.
- Aggravated Felons are not Eligible for Voluntary Departure
Voluntary departure avoids the stigma of formal removal/deportation by allowing an immigrant to depart the U.S. at his or her own expense. An immigrant who voluntarily departs the U.S. is eligible to return the U.S. in the future. The length of time the immigrant was present in the U.S. unlawfully prior to voluntary departure will determine when he/she may be eligible to return. A foreigner may obtain a waiver to allow him/her to return the U.S. before the bar is up so it is advisable that you speak with an immigration attorney about whether you qualify for such relief. Voluntary departure is not, however, available to an aggravated felon. In addition, waivers are either unavailable or much harder to obtain.
- Aggravated Felons are not Eligible for Cancellation of Removal
Cancellation of removal, another form of discretionary relief available during removal/deportation proceedings, is available to qualifying lawful permanent and non-permanent residents. To qualify for a lawful permanent resident (“LPR”) cancellation, you must have been an LPR for at least five years, have continuously resided in the U.S. for seven years and have not been convicted of an aggravated felony. A non-permanent resident may also qualify for cancellation if he/she has been continuously present in the U.S. for at least 10 years, has good moral character during that period, has not been convicted of an offense that makes him/her removable, and must demonstrate that removal would cause unusual and extreme hardship to his/ her immediate family members who are either U.S. citizens or LPRs. Here too, a conviction for an aggravated felony makes an otherwise eligible non-LPR ineligible for relief.
- Aggravated Felons Cannot Naturalize
To be eligible for naturalization (to become a U.S. citizen), an immigrant must show, among other requirements, that he/she is a person of good moral character within the relevant period. An aggravated felony conviction takes away this possibility because it makes the immigrant statutorily incapable of establishing good moral character. Aggravated felons are never able to become citizens of the United States, at least not under the current law. For these reasons non-U.S. citizens must avoid an aggravated felony conviction. There may be something you can do if you have a conviction for an aggravated felony. Depending on when your guilty plea was entered you may be able to withdraw the guilty plea. Alternatively, there may be grounds for you to file a habeas corpus petition based on, for example, your attorney rendering ineffective assistance by failing to advise you of the immigration consequences of your guilty plea to an aggravated felony. You may also file a habeas petition where you went to trial and was found guilty by a judge or jury. Criminal attorneys do not all understand the immigration laws. I strongly advise that an immigration attorney be consulted when the criminal defendant is a non-citizen, especially where the plea involves 12 or more months of incarceration.