Every year, thousands of immigrants, many of them long-time permanent residents, are placed under removal proceedings because of criminal convictions. Some of these were minor and many may have been committed many years ago. However, there is no statute of limitations in removal proceedings. Many of these offenses are classified as “aggravated felonies” although they are neither “aggravated” nor are they “felonies”. Others are classified as “crimes of moral turpitude”. An example of this is a shoplifting conviction. However, the immigration consequences of criminal conduct, whether or not there is a conviction, may be deportation.
While a conviction may be expunged for many purposes, this does not wipe your record clean for immigration purposes. Conduct which does not count as a conviction for criminal purposes may be still be considered as a conviction in Immigration Court. Confusing? Very!
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“My family and I were clients of Mr. Carl Shusterman and I can honestly say that he had a tremendous impact on our lives – a very positive one. Even when my parents had been denied and they had been told to pack and get out of this country, Mr. Shusterman rushed to find an alternative in order to ensure that my parents could stay.”
- Diana Cabrera, Reno, Nevada
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We represent many foreign-born persons who the government is trying to deport for minor offenses which occurred years ago. For example, we are currently opposing the deportation of a Canadian man nearing retirement whose wife and two married daughters are U.S. citizens. His crime? He pled nolo contendre to a marijuana possession charge when he was a teenager!
The U.S. Supreme Court has held in 2010 that it is the duty of criminal attorneys to advise immigrant defendants of the deportation consequences of pleading guilty or nolo contendre to a criminal offense. However, the complexity surrounding this issue is simply mind-boggling! Will you be subject to the “categorial” approach or the “modified categorial” approach? Would a particular conviction render you removable, inadmissible, or both?
If this is confusing to you, it is all the more reason to hire an immigration attorney who is experienced in this area of law. He or she can analyze your case and see whether you are removable from the United States, and if so, whether you are eligible for various forms on relief including adjustment of status, asylum, cancellation of removal, waivers, etc. If you are an immigration attorney, or a person who may be subject to deportation, we hope that the resources listed below are helpful to you.
General Resources – Criminal Conduct
- List of Crimes of Moral Turpitude (State Department)
- Immigration Consequences of Criminal Convictions – Office of Immigration Litigation (Revised November 2010)
- Criminal and Deportation Defense – National Immigration Project of the National Lawyers Guild
- Defending Immigrants
- Tooby’s Guide to Criminal Immigration Law (230 pages)
- Padilla Resources Page (American Bar Association)
- Attorney General Eric Holder Vacates Matter of Silva-Trevino (4-10-15)
- Practice Advisory: Descamps v. U.S. and the Modified Categorical Approach (6-26-13)
- Seeking Post-Conviction Relief under Padilla v. Kentucky after Chaidez v. US (2-28-13)
- ICE Targets Fewer Criminals in Deportation Proceedings (11-05-11)
- Duty of Criminal Defense Counsel Representing An Immigrant Defendant After Padilla v. Kentucky (IDP Practice Advisory)
- Retroactive Applicability of Padilla v. Kentucky – National Lawyers Guild (6-24-10)
- Lopez v. Gonzales Practice Advisories and Media Materials (Immigrant Defense Project)
- DOJ/EOIR Proposed Regulation Implements St. Cyr v. INS (8-13-02)
- EOIR FAQ: §212(c) Regulations (8-13-02)
Case Decisions – Criminal Conduct
- Matter of J-H-J, 26 I&N Dec. 563 (BIA 2015) (5-12-15)
- Matter of Montiel, 26 I&N Dec. 555 (BIA 2015) (4-17-15)
- BIA Interim Decision in the Matter of Martin Chairez-Castrejon: Firearms Offense vs. Aggravated Felony (7-24-14)
- BIA Decision in the Matter of Patricia Pinzon: Entry Using a False Claim to US Citizenship Does not Constitute an Admission and is Considered a CMT (8-19-13)
- Judulang v. Holder US Supreme Court – Green Card Holder Eligible to Apply for 212(c) Waiver Whether Conviction is for a Removable or Inadmissible Ground (12-12-11)
- Padilla v. Kentucky – US Supreme Court – Duty of Counsel in Criminal Proceedings to Warn Client About Deportation Consequences of Plea (3-31-10)
- AAO Decision Regarding Use of Marijuana (6-17-09)
- Nijhawan v. Holder – U.S. Supreme Court. 129 S. Ct. 2294 (6-15-09) – Whether a Particular Theft Crime is an Aggravated Felony
- Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) – Application of “Modified Category” Approach to Crimes of Moral Turpitude
- Gonzales v. Duenas-Alvarez U.S. Supreme Court (1-17-07) – A Theft Offense Includes the Crime of Aiding and Abetting a Theft Offense
- Lopez v. Gonzales – When is a Drug Offender an Aggravated Felon? – U.S. Supreme Court (12-06-06)
- Leocal v. Ashcroft – DUI Causing Bodily Harm is Not a Crime of Violence – U.S. Supreme Court (11-09-04)
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