In recent months, the deportation of noncitizens with criminal records has been making headlines, with President Donald Trump pledging to deport “the people that are criminal and have criminal records.” How many people might be affected? According to Trump: “Probably two million, it could be even three million, we are getting them out of our country.”
So if you are a noncitizen, you should think twice about pleading guilty to a crime as you may be setting yourself up for deportation. And this applies even if you are facing charges for a minor offense. According to Alisa Wellek, the executive director of the Immigrant Defense Project: “We see a ton of people deported for misdemeanors, probation violations, petty theft, shoplifting.” Data from the Department of Homeland Security shows that the most common offenses that result in deportation are drunk driving, assault, drug trafficking, burglary, and traffic offenses.
For undocumented persons, a criminal charge may be the least of their worries. Any undocumented person who entered the country after January 2014 is considered to be at “high priority” for criminal deportation–regardless of their criminal record. Indeed, of the 95,085 immigrants that ICE singled out for deportation, half had no criminal convictions on their records.
What Criminal Convictions May Result in Deportation?
The Immigration and Nationality Act (INA) defines which criminal offenses may justify the deportation of a noncitizen. The INA is a long and complicated piece of legislation, containing several grey areas when it comes to deportable offenses. But in general, pleading guilty to any of the following offenses may result in deportation proceedings:
- Aggravated felony–INA section 101 includes a list of so-called aggravated felonies, many of which are not actually felonies under state law. Nonetheless, a conviction for any of these offenses will probably result in deportation. The list includes rape, murder; drug or firearms trafficking, sex crimes against children, money laundering, fraud, tax evasion over $10,000, or any theft, assault, or perjury convictions involving more than one year of jail time.
- Crime of moral turpitude–This is a loosely defined category of offenses. The Department of State has defined a crime of moral turpitude as one that includes “fraud, larceny, and intent to harm persons or things.” Theft, fraud, assault, spousal abuse, and aggravated DUI may all constitute crimes of moral turpitude–so long as state law doesn’t treat it as a “petty offense,” punishable by less than one year in jail. You may be deported if you commit one crime of moral turpitude during your first five years of presence in the United States, or two crime of moral turpitude at any time after your arrival.
- Miscellaneous deportable offense–INA section 237 lists several miscellaneous offenses that might justify deportation. The list includes smuggling, marriage fraud, being present in the US in violation of the Immigration and Nationality Act, high-speed flight from an immigration checkpoint, failure to register as a sex offender, any controlled substance conviction (besides personal use marijuana charges relating to 30 grams of less), domestic violence, child abuse or neglect, production of false documents, many firearm offenses, terrorism, and espionage.
What Can I Do If I’ve Pleaded Guilty to a Deportable Offense?
Unfortunately, if you’ve pleaded guilty to an aggravated felony or an offense specifically listed in INA section 237, there is almost no way you can legally avoid deportation. One possible exception is to prove that you will be tortured in your country of origin if you return there.
But if you’ve been convicted of a crime of moral turpitude, you may be able to apply for forgiveness, known as a 212(h) waiver. The waiver is available to people who can demonstrate that their deportation would cause extreme hardship to a close family member who is a citizen or a lawful permanent resident. Additionally, you must show that you are not a threat to national security, and if you have a green card, you must show that you have lived in America for seven years continuously before the deportation proceeding opened, and that you never committed an aggravated felony.
There is no guarantee that you will get relief from deportation–even if you meet the above criteria. The immigration judge will take several factors into account, such as the seriousness of the crime that you committed, the extent of your rehabilitation, and whether you deserve a second chance. Thus, the best way to avoid deportation is to not get convicted in the first place. If you are a non-citizen, do not accept a plea bargain before consulting with an experienced Indianapolis criminal defense attorney. Your best option may be to fight the charges at trial.