By Attorneys Robert L. Reeves and Lorena Larios Shah
Criminal convictions can have severe immigration consequences. However, an individual facing a criminal conviction may avoid some of the harsh consequences by having his/her criminal attorney consult with an experienced immigration attorney. It is important for the immigration attorney to analyze the criminal case because the defense strategy for a legal permanent resident will be different for each case. The analysis changes depending upon past convictions and what type of immigration relief is potentially available.
An immigration expert will be able to identify whether a certain offense will simply delay a grant of naturalization to U.S. citizenship or obtain legal permanent resident status; or worse yet, trigger removal (deportation) proceedings. For example, individuals with aggravated felony convictions may not be eligible for any relief and may be ordered removed from the United States. Aggravated felonies refers to those felonies which require a sentence of 365 days or more. Certain misdemeanor offenses with a sentence of 365 days may constitute an aggravated felony. These offenses include but are not limited to crimes of violence, theft, receipt of stolen property, obstruction of justice, perjury and subordination of perjury. However, some aggravated felony convictions can be avoided if a sentence of 364 days or less is imposed. There are some offenses which will be classified as aggravated felonies regardless of the sentence imposed. Such offenses include, but are not limited to, offenses relating to drug trafficking, firearms, sexual abuse of a minor or rape. Persons arrested or convicted of any of the offenses must consult with an experienced immigration attorney.
Both statutory and case law is constantly changing and an alien convicted of a criminal offense may still have relief available. For instance, the Board of Immigration Appeals (BIA) recently held in In re Adamiak that a conviction vacated for failure of the trial court to advise the defendant of the possible immigration consequences of a guilty plea is no longer a valid conviction for immigration purposes. This ruling is important because it gives immigrants with certain criminal convictions the opportunity to obtain immigration benefits.
In In re Adamiak, the respondent was a lawful permanent resident who was convicted of a drug trafficking offense. As a result of this conviction, the Department of Homeland Security (DHS) placed the respondent in removal proceedings for having committed an “aggravated felony.” The Immigration Judge found the respondent ineligible for cancellation of removal as an alien convicted of an aggravated felony and ordered him removed from the United States. The respondent filed a timely appeal to the BIA. The BIA held that the failure of a criminal court to advise a defendant of immigration consequences of a guilty plea is not a valid conviction for immigration purposes. One must avoid an aggravated felony or seek post conviction relief when an aggravated felony is involved.
Permanent residents and undocumented immigrants facing criminal charges or those who have been convicted and are involved in immigration proceedings must consult an experienced immigration attorney.