Immigrant Crime and Deportation

Immigrant Crime and Deportation

Immigrant Crime and Deportation
What is it, Who does it affect and How can it be avoided.


What is an Illegal Alien

The term “illegal alien” encompasses all individuals present in the United States in violation of the immigration laws as codified under the Immigration and Nationality Act of 1952 as amended, and the 8 CFR (Code of Federal Regulations).

Any individual present in the United States in a status lesser than that of United States citizen is subject to removal proceedings if at any time the Department of Homeland Security charges the individual “alien” as an alien in violation of the immigration laws. The notion that legal resident status is the equivalent of citizenship in the United States is a misconception that has resulted in more than one family being permanently separated. This is due in part because the permanent resident cardholder has been placed in removal proceedings and his permission to reside and work in the United States has been terminated. The immigrant is then forced to return to their country of nationality without regard for the family and cultural ties within the United States.

Grounds for Deportation

The immigration laws have changed dramatically in a manner that does not benefit those convicted of certain crimes. Even minor offenses can result in devastating consequences that, previous to the 1996 Immigration Reform and Responsibility Act (IIRAIRA 96), were not grounds of exclusion or deportation. Additionally, if there were grounds for exclusion or removal, there were waivers to the grounds that were customarily granted.

Aliens present in the United States are classified in two different categories for purposes of removal proceedings. Those aliens who are present after having been inspected and admitted by an immigration officer are subject to grounds of deportation, whereas those aliens who are present in the United States without being inspected, admitted or paroled by an immigration officer are considered aliens seeking admission and therefore, are subject to the grounds of inadmissibility for purposes of removal proceedings. The grounds of inadmissibility are similar to the grounds of deportability. However, there are certain differences that affect the defense of an alien in either one of the two different categories.

The grounds of inadmissibility can be grouped in 4 different grounds:

1)    Health
2)    Public Charge
3)    Criminal Grounds
4)    Security Grounds

Among the 4 different groups, important attention must be given to the third and fourth grounds, for the relief from removal proceedings have been seriously limited in these two situations. This could result in the permanent bar to re-enter the United States under any type of visa (immigrant or non-immigrant) or the bar to enter for periods that can range from 5 to 20 years.

When the police first arrest an alien, the arresting officer is the first person in the chain of custody that will determine the immigration destiny of the arrestee. Any alien arrested for a criminal, vehicle or welfare code violation must seek immediate assistance by a law firm that specializes or renders its services in the area of Criminal immigration Defense.

Can US citizens be deported?

The defense of a United States citizen detainee completely differs from the defense of a foreign detainee. In most cases, the defense and plea-bargain negotiations of a United States citizen is focused on obtaining a sentence that avoids long periods of incarceration. On the other hand, an alien criminal defense cannot be solely based on the term of imprisonment or the criminal punishment to be imposed but to the specific criminal grounds for which the alien is being charged, prosecuted and sentenced. Understandably, the particular section under which an alien is charged is essential to determine if the alien will be able to maintain his current legal immigration status or even be able to obtain a legal immigration status if he is in the US illegally.

Any crime involving moral turpitude is a crime that renders an alien inadmissible and therefore subject to removal proceedings, except in two limited situations. The definition of moral turpitude is ambiguous and has been the subject of numerous court and administrative agencies interpretations. There is not a definitive rule that permits one to determine whether the particular crime is a crime of moral turpitude or not. Close attention to the elements of the statutory provision for which the alien has been charged is essential to initiate the plea bargain process.

Serious crimes such as murder, robbery, drug trafficking or possession (even in limited quantities), child abuse, molestation, and rape render a person subject to mandatory detention and permanent bar to re-enter the United States without any defense or relief including voluntary departure. Other less serious offenses can result in a conclusion of “lack of good moral character”, limiting the possibilities of discretionary relief by the Immigration Judge even if there is some waiver or defense to the particular ground of removal.

Post Conviction Defense

Post conviction relief has become a very popular area of practice in the immigration arena due to the impossibility to prevent the alien’s removal without over-turning a previous criminal conviction. Recently, the Attorney General ruled in disfavor of post-conviction relief in the form of “ineffective assistance of counsel”. However, there is a strong debate as to the constitutionality of this ruling and it is expected that the United States Supreme Court will finally decide the issue. Until the courts rule on the constitutionality or unconstitutionality of the Attorney General’s ruling, immigration attorneys will not stop using this important legal avenue to detain (or delay) the removal of the alien.

It is important to know that there is a strong policy in favor of “removal” of those aliens who are considered in violation of the immigration laws due to criminal activity. The Department of Homeland Security’s “ICE” division is working together with state and federal law enforcement to detect any alien currently arrested for violation of criminal, vehicle or welfare code. Any alien in state or federal custody can be confident in the fact that ICE will be notified of their arrest and an immigration “hold” will be put in place to prevent the release of the alien by posting of a criminal bond.

The immigration defense must start immediately after the alien’s arrest and continue during the state or federal criminal prosecution phase. If the detention of an alien in state custody facing criminal prosecution demands that the alien remain under state custody for a long period of time, the alien must accept this fact and remain calm. During this period, the immigration criminal defense attorney will try to obtain a plea bargain that will not jeopardize the right of the alien to live and work in the United States even if the attorney must go to trial.

Alien Rights are not Equal to Citizen’s Rights

The message to all those who are presently in the United States holding a status other than that of a US Citizen is that having a permanent resident card is just a permit to live and work in the United States but subject to removal any time the Federal government wishes. The constitutional rights of aliens are not the same as the constitutional rights of a United States citizen and, therefore, the need to become a United States Citizen is greater than before. Criminal attorneys are prepared to obtain lenient sentences for their clients but they are not aware of the immigration consequences of criminal convictions. The defense of an alien must start at the time of the arrest and continue until the case is closed. Therefore, immediate consultation with an immigration attorney upon arrest is crucial. Immigration attorneys are specialized in this area and are prepared to deal with the complex legalities of crime and its effects on immigration status.

Phelps Attorneys provides legal services… We have an outstanding track record in criminal cases involving legal and undocumented immigrants.

Here you can find important information about deportation defense, appeals as well as cases involving removal proceedings for immigrants in the USA.

Eliana Phelps

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