For immigrants, the consequences of a criminal conviction can be much higher compared to the consequences for citizens. In particular, immigrants who are charged with crimes, including relatively minor crimes, run the risk of deportation and not being able to reenter the country again. Under U.S. immigration law, certain kinds of criminal convictions are called “deportable crimes” while other criminal convictions are called “inadmissible crimes”.

Who is Subject to Deportation?

Under the Immigration and Nationality Act, typically referred to as the “INA”, any non-citizen living in the U.S. can be deported if they are convicted of certain crimes. This is an absolute rule and it does not matter:

  • How strong your ties are here including job, family or owning a business;
  • Whether you have a dependent child who is a U.S. citizen;
  • Whether you are a documented or undocumented immigrant; or
  • How long you have lived in the country.

Among the major categories of deportable crimes are:

  • Crimes of moral turpitude which typically involve dishonesty, fraud or antisocial behavior;
  • Aggravated felonies;
  • Controlled substances or drug offenses; and
  • Firearm offenses.

What Does it Mean to Be “Inadmissible”?

Under the “INA” being “inadmissible” means that you will not be eligible to receive any of the benefits that would be granted by U.S. immigration authorities. Some of the things that you will not be able to do if you are inadmissible are:

  • Reenter the country after leaving and this is so even if you have a valid visa to live in the U.S. or if you are a lawful permanent resident (green card holder);
  • Become a U.S. citizen;
  • Apply for permanent residence or a green card; and
  • Apply for an “adjustment of status” or change from illegal to legal immigration status.

However, a conviction for an inadmissible crime may not lead to deportation from the country. Deportation can occur only if you are convicted of a deportable crime or you entered the country or received an immigration benefit while you were inadmissible. Inadmissible crimes sometimes overlap with deportable crimes and among the major inadmissible offenses are:

  • Crimes of moral turpitude which involve antisocial behavior that harms another person or the social good;
  • Controlled substances or drug offenses; and
  • Multiple criminal convictions where the sentences total five years or more.

What are Some Options for Immigrants?

Criminal and immigration laws tend to overlap and in some cases, immigrants may have different options open to them which can prevent conviction or deportation such as:

  • Waiver: Some immigrants may qualify for a waiver and in order to qualify for this, the immigrant must pass different balancing tests. In these tests, an immigration judge will weigh the positive aspects of the immigrant’s life against the seriousness of the criminal charges.
  • The Use of Standard Criminal Defenses: Immigrants can also use different criminal defenses that citizens use such as self-defense, defense of property, duress/necessity, alibi or mistake.
  • U-Visas: These visas are given to non-citizens who have assisted law enforcement authorities in the investigation or prosecution of a different crime. An immigrant may also be able to apply for a green card in the future if they are given a U visa.
  • Challenging the Criminal Charges: If the charges brought against an immigrant can be proven wrong or if the charges are not based on proof, then this could serve as a defense for the immigrant.
  • Adjustment of Status: Some immigrants can avoid deportation if their application for adjustment of status has been approved. Even if their application has been denied, the immigrant can petition again for the approval of the application.
  • Voluntary Departure: In this scenario, the accused person chooses to leave the country on their own before removal measures are enforced. However, voluntary departure can sometimes make it easier for the non-citizen to return to the U.S. at some other time in the future.

Should I Contact a Lawyer?

Immigration and criminal laws can be complex and they can also be subject to change. In this context, if you or a loved one is an immigrant and facing a criminal charge, it would be very beneficial to consult with a local immigration attorney before proceeding.