CLE Class Provides Overview of Immigration Consequences of Criminal Convictions
September 22, 2023
Attorneys practicing immigration law, as well as those involved in the defense of noncitizens accused of crimes, must contend with the significant immigration consequences of certain pleas and convictions. In both criminal defense and immigration practice, an understanding of how charges, convictions, and pleas impact an individual’s immigration status can mean the difference between a client’s successful retention of lawful status and their removal from the country.
At a recent D.C. Bar CLE class, Ofelia L. Calderón, founding partner at Calderón Seguin PLC, and Himedes V. Chicas, lead attorney and head of the immigration department at Jezic & Moyse LLC, gave a thorough overview of the U.S. Department of Homeland Security’s current enforcement priorities respective to noncitizens and the immigration consequences of particular criminal acts and convictions.
Calderón discussed an attorney’s obligations in criminal and immigration proceedings, the elements establishing a conviction for immigration purposes, and the crimes that can result in a noncitizen’s deportation or ineligibility for certain forms of relief, touching upon certain crimes under District, Maryland, and Virginia law.
She pointed to the U.S. Supreme Court decision in Padilla v. Kentucky, which acknowledged the potentially significant consequences of a criminal conviction on an individual’s immigration status and remains a stern reminder of the responsibilities of both criminal and immigration attorneys. The failure to assess a client’s potential immigration status and the consequences of a conviction are, under Padilla, ineffective assistance of counsel.
“Criminal defense attorneys can’t just say, ‘I didn’t know’ [in reference to a client’s immigration status], so they have an affirmative obligation to really ask these questions,” said Calderón.
Padilla requires criminal defense counsel to ascertain their client’s immigration status, determine the potential immigration consequences of charges, and accurately inform the client about these consequences and any alternative options such as plea or trial.
Chicas stressed that a case-specific analysis should be carefully conducted. “This isn’t one-size-fits-all advice. You need to know the individual’s status, their immigration history, their criminal history; there’s so much you need to know. Don’t wait to do this analysis the morning of the court date,” he said. “Make sure you do the work in advance.”
Under the current immigration system, certain dispositions without a formal judgment of guilt nevertheless qualify as criminal convictions for immigration purposes. For example, if the accused entered a plea of guilt or nolo contendere or admitted to facts sufficient to find guilt, and the judge ordered some form of punishment, penalty, or restraint on liberty, immigration officials will treat the outcome as a conviction. In contrast, pre-plea diversion arrangements may not be considered a conviction because, procedurally, there is no admission or finding of guilt.
Central to the analysis are two classes of crimes: crimes involving moral turpitude (CIMTs) and aggravated felonies. CIMTs have been created through case law and applies to criminal convictions where the underlying offenses are inherently base, vile, or depraved. Aggravated felonies are listed in the Immigration and Naturalization Act and include convictions for fraud over $10,000, the sexual abuse of a minor, and imprisonment for one year or more for theft, burglary, or crimes of violence. Both classes of convictions carry significant immigration consequences.
Calderón and Chivas pointed out the nebulous nature of CIMT. “[The definition] is very unhelpful,” Calderón said. “I don’t think you should steal, but I don’t think taking a pair of sunglasses from Ross qualifies as inherently base or vile.”
Chivas agreed, stating, “One thing that case law has recognized is that these things change over the years. What was considered a CIMT when it was analyzed by the Board of Immigration Appeals (BIA) back in the day might not be a CIMT today.”
But immigration threats are not confined to these two categories of offenses. Certain kinds of immigration status carry unique criminal bars. Temporary Protected Status (TPS) extends protections to nationals of countries in crisis, but that status can be revoked if the holder is convicted of two misdemeanors, one felony, or an offense covered by a deportability ground.
“Dreamers” under Deferred Action for Childhood Arrivals (DACA) can lose their status as the result of a felony, three misdemeanor convictions, or a single “significant misdemeanor” such as domestic violence, burglary, driving under the influence of drugs or alcohol, or unlawful possession or use of a firearm. Since both DACA and TPS are discretionary, visa holders can have their status revoked, even without a qualifying conviction.
Calderón summed up the difficulty of understanding the intersectionality of criminal and immigration law by noting four factors: the different types of immigration status, grounds of inadmissibility versus grounds of deportability, the changing landscape of case law with increased federal legislation, and different possibilities for relief with varying requirements and statutory bars. “Immigration has been mandated up,” she said. “The original statute was written in ’52 … There have only been amendments that sometimes are in contradiction with the others.”