Prior to 1924, between 10 and 15 percent of Americans were foreign born. Then, Congress passed the Immigration Act, which included strict quotas, and immigration plummeted. In 1965, Congress ended the strict quota system, and immigration rates started rising again. Today, immigration is almost at the pre-1924 level. Officials usually prevent people with criminal convictions from entering the United States. A criminal conviction could also be grounds for deportation from the United States, even if the individual has a green card.
Before we discuss these crimes in detail, we should address one burning issue. Immigration officials define “conviction” differently. For mist purposes, if a defendant’s conviction is expunged, sealed, or pardoned, or the defendant serves a period of probation but does not get a criminal conviction(usually pretrial diversion or deferred disposition), the matter still counts as a conviction for immigration purposes. The law doesn’t require prosecutors or judges to warn defendants about this consequence, and quite frankly, many attorneys don’t know it exists.
As outlined below, this rule has a loophole, especially in deferred disposition matters. Furthermore, the government often changes the rules as to what criminal offenses could trigger deportation proceedings. So, if you are a non-native person who faces criminal charges, you need a Marietta criminal defense attorney who is fully familiar with all these twists and turns. Otherwise, the direct consequences of a criminal conviction, like fines and incarceration, could be just the beginning.
Crimes of Moral Turpitude
Overall, the CMT designation is extremely vague. This label could apply to almost all criminal offenses or almost none of them. Currently, the Department of State defines a CMT as any offense that includes an element of “fraud, larceny, and intent to harm persons or things.” Some examples include:
- Prostitution (which is traditionally a CMT),
- Almost any theft or related offense, especially something like embezzlement that also involves a breach of trust,
- Aggravated assault,
- Domestic violence, and
- Aggravated DUI.
Offenses like ordinary DUI and ordinary assault are not CMTs because they fall into the petty offense exception. A petty offense is anything punishable by less than one year behind bars. That category includes all misdemeanors in Georgia. Furthermore, the exception only applies if the defendant served less than six months’ incarceration.
If a conviction could have immigration consequences, a Marietta criminal defense attorney often convinces prosecutors to reduce the charges, A felony-to-misdemeanor reduction in a theft case is the best example. These reductions are easier to obtain if the offense was a wobbler, which is a crime that could be charged as a felony or misdemeanor. This designation applies to any felony punishable by less than ten years in prison.
Prosecutors often agree to such reductions if the defendant has a procedural or substantive defense. Frequently, a bird in the hand is worth two in the bush. Prosecutors would rather convict defendants for something rather than risk letting them “walk” at trial.
CMT deportation proceedings are not automatic. The defendant must have committed a CMT within five years of entry to the United States, or two CMTs, which did not involve the same set of facts, at any time. Usually, the date of entry, as opposed to the date of adjustment or anything else, is the only date that counts.
There’s more. A 212(h) waiver forgives all, at least as far as CMT immigration consequences are concerned. Most people are eligible for waivers if they prove their deportations would cause an extreme hardship to a spouse, who is a lawful permanent resident or U.S. citizen, or to a resident parent or child. In addition to a hardship, most judges require 212(h) applicants to show some evidence of rehabilitation.
The complete, current list of aggravated felonies can be found here. Crimes appear on this list and drop off it, because frankly, an aggravated felony is anything the State Department says it is. Usually, pretty much all state law felonies are on the prohibited list, even if they are nonviolent.
If you were convicted of a listed aggravated felony, deportation is pretty much inevitable, unless the defendant can prove s/he will be tortured if s/he is deported. Usually, an aggravated felony permanently bars re-entry into the United States. Sometimes, a Marietta criminal defense attorney can arrange a voluntary departure resolution. It’s usually easier to re-enter the United States with a voluntary departure on one’s record.
As mentioned, the listed aggravated felonies change frequently. It’s very likely that, while the case is pending, an unlisted infraction could become a listed offense. Usually, the conviction date is the only date that counts. However, a Marietta criminal defense attorney could argue that the defense was already planned when the offense appeared on the prohibited list.
In both CMT and aggravated felony situations, a procedural or substantive defense is critical. Fortunately, almost all criminal offenses involve one or both.
Cross-racial identification is one of the most common procedural defenses in such matters. The issue usually applies in photograph or live lineups. Basically, if a person of one ethnicity sees eight or ten people of another ethnicity, and all those people are about the same height, age, and weight, everyone looks the same.
Racial prejudice does not cause this effect. In studies, white people who lived around black people and often interacted with them still showed the cross-racial identification problem.
Substantive defense usually involve a lack of evidence. The burden of proof in criminal cases (beyond any reasonable doubt) is very high. Frequently, a key witness is incompetent to testify or unwilling to testify. Sexual battery is a good illustration. Frequently, the defendant and alleged victim were both drinking at the time. Furthermore, if a Marietta criminal defense lawyer delays the proceedings long enough, the alleged victim may forget some minute details.
That lack of memory casts a shadow over the rest of the witness’ testimony. Alternatively, many sexual battery victims choose not to testify, for one reason or another. Prosecutors could legally subpoena these witnesses and force them to testify against their will. But they rarely take that step. Many prosecutors believe that if the alleged victim doesn’t care about the case, they shouldn’t care about it either.
Criminal convictions have severe immigration consequences. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. After hours, home, and jail visits are available.