Immigration and Customs Enforcement, known as ICE, is responsible for the removal of non-citizens in the United States who are deemed removable. A person can be removable because he or she was never legally admitted in the first place, a person fell out of status (e.g, overstaying a visa), or a person had status but was convicted of a certain criminal offense.
Due to limited resources, ICE cannot remove all persons present in the U.S. without permission or otherwise are deemed removable. Because of this, ICE prioritizes removable persons into three categories:
Persons who are threats to national security, border security, and public safety make up the first category. This includes persons caught at the border, persons suspected of terrorism or espionage, persons with a history of gang affiliation, persons convicted of felonies generally, and persons convicted of what Immigration calls “aggravated felonies,” see below. Any person who falls within this category will be prioritized for removal unless he or she appears to qualify for asylum or compelling or exceptional factors clearly indicate the person is not a threat to public safety or national security.
Category two comprises of persons without felonies but who have been convicted of three or more misdemeanors, other than minor traffic offenses, that arise out of three separate incidents, persons convicted of a “significant misdemeanor” (see below), persons arrested by Border Patrol or ICE who cannot show they have been present in the US continuously since January 1, 2014, and persons who in Immigration’s opinion, have significantly abused visa or visa waiver programs.
Again, if any a person falls within this category, ICE will consider whether he or she is eligible for asylum or if any compelling or exceptional factors indicate the person is not a threat to national security or public safety.
This category is a catch-all for all other non-citizens who an immigration judge has already ordered them removed or deported. Persons in this category are the lowest priority for removal.
A non-citizen’s criminal convictions can therefore have serious consequences. For this reason, criminal law and immigration law overlap. This intersection has been coined “crimmigration.” If you are a non-citizen and find yourself in criminal proceedings, it is important you consult with an attorney regarding the charges against you. Even a misdemeanor can negatively affect your immigration status or result in your placement in removal proceedings.
“Aggravated felony” is a term of art. The Immigration and Nationality Act (INA) lists several offenses that constitute aggravated felonies. The offense can be a state or federal conviction. The offenses are either defined generically or the INA references federal criminal statutes for the definition. To determine if your conviction constitutes an aggravated felony under federal law, you must compare the federal or generic definition to the state statute under which you were convicted. Every state defines an offense differently. For example, what constitutes burglary in Wisconsin may not be the same as what constitutes burglary in Nevada.
The following is an alphabetical list of the aggravated felonies enumerated in the INA, 8 U.S.C. § 1101(a)(43):
- Smuggling of persons, unless the person was the parent, spouse, or child of the defendant;
- Attempt to commit an aggravated felony;
- Bribery of a witness, if the term of imprisonment was at least one year;
- Burglary, if the term of imprisonment was at least one year;
- Child pornography;
- Commercial bribery, if the term of imprisonment was at least one year;
- Conspiracy to commit an aggravated felony;
- Counterfeiting, if the term of imprisonment was at least one year;
- Crime of violence, see below;
- Drug offenses, see below;
- Failure to Appear, to serve a sentence if the underlying charge is punishable by at least 5 years, or to face charges if the underlying sentence is punishable by at least 2 years;
- False documents, using or creating, if the term of imprisonment is at least one year, except for the first offense which was committed for the purpose of aiding the defendant’s spouse, child, or parent;
- Firearms, trafficking, plus federal crimes and similar state crimes;
- Forgery, if the term of imprisonment is at least one year;
- Fraud or deceit, if the loss to the victim exceeds $10,000;
- Illegal Re-entry, after deported or removed for an aggravated felony;
- Money Laundering, of illegally derived funds if the amount exceeds $10,000,
- National defense, crimes related to, such as disclosure of classified information;
- Obstruction of justice, if the term of imprisonment is at least one year;
- Perjury or subornation of perjury, if the term of imprisonment is at least one year;
- Prostitution, certain offenses;
- Ransom demand;
- Receipt of stolen property, if the term of imprisonment is at least one year;
- RICO offenses, such as racketeering, if the term of imprisonment is at least one year;
- Sexual abuse of a minor;
- Slavery, peonage, involuntary servitude;
- Tax evasion or fraud, if the amount exceeds $10,000;
- Theft, if the term of imprisonment exceeds at least one year;
- Trafficking in vehicles, if VIN numbers are altered and term of imprisonment exceeds one year;
- Trafficking in destructive devices, such as bombs or grenades;
Some of the aforementioned aggravated felonies have a length of sentence component, i.e., without the particular sentence, the offense is not an aggravated felony in and of itself. Some aggravated felonies, However, your sentence in criminal court and what constitutes a sentence in immigration law are not necessarily the same. The INA states,
[a]ny reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition of that imprisonment in whole or in part.
8 U.S.C. § 1101(a)(48)(A).
For example, you may receive a suspended sentence in your criminal case that the judge will only impose if you fail to complete certain requirements or stay out of trouble. Even if you successfully complete those requirements and the judge never imposes the sentence, the suspended sentence still counts for immigration purposes.
If your particular offense falls entirely within the federal definition, you can be removable as having an aggravated felony. As detailed above, you would fall into the first priority for removal. If, however, the state statute that defines your offense is broader than the federal definition, you may not necessarily have an aggravated felony.
If it is determined that you have in fact been convicted of an aggravated felony, you may suffer the most severe immigration consequences. In addition to removability, you may also be barred from certain forms of immigration relief even if you otherwise qualify.
A “significant misdemeanor” is an offense that is punishable by imprisonment of one year or less, but more than five days, and is one of the following:
- Domestic violence;
- Sexual abuse or exploitation;
- Unlawful possession of a firearm;
- Drug trafficking or distribution;
- DUI, alcohol or controlled substance;
- Any other misdemeanor for which the person was actually sentenced to a term of more than 90 days.
Aside from the last bullet, what is considered is not the time you actually served or what you were actually sentenced to, but what you could have been sentenced to under the particular statute. For the catch-all provision, any other misdemeanor offense for which you were sentenced to more than 90 days will constitute a significant misdemeanor even if you did not actually serve the entire sentence.
As with aggravated felonies, the named significant misdemeanors are defined generally or by federal statute.
Sealed or Expunged Convictions
After a number waiting a certain period of time, state law may allow you to petition the court to seal or expunge your criminal record. Once sealed or expunged, you no longer have to disclose those arrests, charges, or convictions to a potential employer or anyone else interested in your criminal record. They should not appear in any background check. The effect is as if you had never been arrested, charged, or convicted of those items sealed or expunged from your record. However, your arrests, charges, and convictions are still relevant for immigration purposes. If one of the sealed convictions was for an aggravated felony or significant misdemeanor, ICE may still place you in removal proceedings. It does not matter that the criminal records were sealed.
Contact the Law Offices of Martin Hart, LLC
There are other ways in which a criminal conviction, whether felony or misdemeanor, can negatively impact your immigration status. This area of immigration law, or crimmigration, is very complex and difficult to navigate on your own. A criminal case against you is stressful and burdensome enough without worrying about the additional impact it may have on your immigration status. For this reason, it is highly recommended you seek the advice of an attorney with criminal and immigration experience if you are a non-citizen with criminal charges against you. The Law Offices of Martin Hart, LLC has attorneys versed in both criminal and immigration law. Call for a FREE consultation at (702) 380-HART(4278).