Noncitizens in Georgia commit violent crimes, such as murder, at a lesser rate than citizens, according to a recent report.
61 per 100,000 illegal immigrants being held for homicide, compared to 90 per 100,000 American-born and legal immigrants in the system, resulting in a 30 percent lower noncitizen crime rate. Specifically, the Georgia Department of Corrections report, published December 30, showed 114 migrants detained for aggravated child molestation, 127 for aggravated assault, 193 for murder, and 190 for rape.
The data in this report is limited to defendants with actual active detainers issued by Immigration and Customs Enforcement.
Immediate Collateral Criminal Consequences for Noncitizens
Almost any run-in with the law creates immigration issues for noncitizens, either immediately or sometime in the future.
The immediate consequences often include deportation or removal proceedings. Two main categories of crimes trigger such proceedings: aggravated felonies and crimes involving moral turpitude.
Additionally, the Immigration and Nationality Act enumerates some crimes that serve as independent grounds of deportation, even if they are not classified in one of those two categories. Examples include convictions related to domestic violence, possession of a controlled substance, or possession of an illegal firearm.
Before we break down these two categories, we must point out that, for immigration purposes, “conviction” basically means “a conviction or a plea of guilty or no contest.” Deferred disposition is usually a conviction for immigration purposes. Pretrial diversion may be a conviction as well, if the defendant goes before a judge.
Aggravated Felonies
Deportation is almost inevitable in these cases. The list changes from time to time, but it usually includes many sex crimes involving minors, drug trafficking, weapons trafficking, murder, money laundering fraud, or tax evasion over a certain amount, rape, espionage, and treason.
Even if a felony isn’t on the list, it’s an aggravated felony if the judge sentenced the defendant to at least one year in prison. The actual time served is irrelevant.
Probability (not possibility) of physical torture in the defendant’s home country is basically the only defense in these cases. The physical torture usually must be government sponsored torture, not government allowed torture.
Crimes Involving Moral Turpitude (CIMTs)
The law does not specifically define this phrase. Generally, a CIMT is any offense, felony or misdemeanor, which involves fraud, theft, dishonesty, or an intent to harm people. Crimes involving moral turpitude thus might include relatively common offenses, such as a relatively minor assault, as well as DUI, if it caused injuries.
The vague definition also works for a Marietta criminal defense lawyer. Sometimes, a foreign national successfully argues that a crime should not be considered a crime involving moral turpitude.
The wording of the statute could be important as well. Many criminal laws are written so broadly that they cover conduct that would not be considered moral turpitude. Significantly, the question of whether a crime involves moral turpitude depends on the language of the statute, not the defendant’s specific actions.
CIMTs aren’t automatically deportable. A conviction of a crime involving moral turpitude must have occurred during the first five years after the foreign national was admitted to the U.S.
Adjustment of status to legal permanent residence sometimes counts as admission to the U.S. in this context. Also, foreign nationals may be subject to deportation if they committed multiple crimes involving moral turpitude throughout their time in the U.S.
Two further notes in this area. Crimes arising out of a single scheme of criminal activity do not count as multiple crimes. No lookback period applies if a foreign national has multiple convictions of these crimes.
CIMT Exceptions and Waivers
The petty offense exception applies if the penalty for the crime could not exceed one year of imprisonment, and the foreign national did not actually serve six months or more in jail.
All misdemeanors are “petty offenses” according to the range of punishment. Additionally, most misdemeanor offenders serve far less than six months in jail.
Furthermore, foreign nationals who do not pose a threat to national security may be eligible for a Section 212(h) waiver. Green card applicants and holders must meet additional requirements to get a waiver, such as:
- Continual legal status in the United States for at least seven years,
- No previous aggravated felonies, and
- CIMT conviction more than fifteen years old.
Evidence of rehabilitation, such as voluntary substance abuse treatment, increases the likelihood of obtaining a waiver, especially if the offense wasn’t extremely malicious or violent.
Foreign nationals who don’t qualify for a waiver or don’t meet the petty offense exception must prove that their deportation would result in an extreme hardship to a spouse, parent, or child who is a U.S. citizen or green card holder.
Long-Term Collateral Criminal Consequences for Noncitizens
Because of the broad definition of “conviction,” any illegal act usually stains an immigrant’s permanent record, and there’s usually no way to remove it. Sealed or restricted convictions are still convictions for immigration purposes, at least in most cases.
If Ramon spent the night in jail because he got drunk at a party, that conviction undermines his efforts to prove that he’s a law-abiding person who contributes to society and thus qualifies for a green card or other status adjustment.
Reducing Collateral Consequences
For a Marietta criminal defense lawyer, an ounce of prevention is generally worth a pound of cure, especially in this context.
Felony-to-misdemeanor reductions are often a key ingredient of plea bargain agreements. For example, prosecutors might reduce aggravated assault charges to ordinary assault charges. Ordinary assault is a CIMT, but it usually qualifies for the petty crimes exception.
The disposition code matters as well. In most jurisdictions, deferred disposition is NFOG (no finding of guilt). Additionally, especially in misdemeanors, there’s usually no record of the proceedings. Therefore, an immigration officer may believe that the noncitizen appeared before the judge, who basically said go forth and sin no more and then dismissed the case.
These strategies are often more successful if a Marietta criminal defense lawyer aggressively challenges the evidence in the case and/or points out a possible procedural violation to prosecutors.
Criminal cases usually, but not always, mean additional trouble for noncitizens. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.
