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Criminal Offenses by Immigrant Aliens

U.S. immigration law provides a variety of consequences for individuals who exhibit criminal behavior and are not citizens or nationals of the U.S. An analysis of any criminal case involving a non-citizen should include the following: (1) Determine the client's full immigration history; (2) Determine the client's family in the U.S. including any fiances; (3) Determine the immigration consequences of a guilty plea to the charge, taking into consideration any prior convictions; (4) Discuss a possible plea bargain and the consequences of pleading to a lesser offense. The specific crime that is pled to, the amount of restitution, the period of incarceration, and the admissions made in the allocution are all critical factors; (5) Discuss with the client whether mandatory detention applies and the effect of traveling outside the U.S. after conviction.

U.S. immigration laws provide that an alien may be deported ("Removed") from the U.S. or denied entry into the U.S. (found "inadmissible") for conviction or certain crimes. The list of crimes for which someone may be deported overlaps the list of crimes for which someone may be found inadmissible, but is not identical. Thus an alien convicted of non-criminal marijuana possession is not removable but if that person travels outside the U.S. and attempts to re-enter, (s)he may be found inadmissible. The crimes for which an alien may be removed can be categorized as follows: Crime Involving Moral Turpitude (CIMT); Aggravated Felony (AF); Firearms Offense (FO); Controlled Substance Offense (CSO); Crime Against Children (CAC); Crime of Domestic Violence (CODV). In many instances, a criminal alien may nevertheless be able to prevent removal by applying for various types of equitable relief, referred to as "waivers." Most of these waivers require the alien to have close family relatives who are U.S. citizens or green card holders.

A special category of crimes, known as "aggravated felonies" will subject an alien to virtually automatic removal, since there are no waivers available for aggravated felons if the plea occurred after April 1, 1997. The immigration law contains a virtual laundry list of aggravated felonies. Some do not require any particular sentence, including: murder, rape, sexual abuse of a minor, illicit trafficking in a controlled substance, illicit trafficking in firearms. Others require a minimum sentence of one year incarceration, including: theft, violent crimes, burglary, forgery, bribery, obstruction of justice, trafficking in VIN numbers, receipt of stolen property and bribery. Still others require a loss of $10,000 or more, including theft or fraud, money laundering and tax evasion. Most circuit courts have held that a crime will be considered an aggravated felony if it falls into one of the enumerated crimes under either state or federal law. Thus, an alien who pleads to a crime which is categorized as a misdemeanor under New York state law, may nevertheless be guilty of an aggravated felony if his conviction would have been a felony under federal law.

Click on the link to view a chart of Criminal Offenses and Immigration Consequences for the following categories:

  • Offenses Against the Person
  • Sex Offenses
  • Offenses Against Property
  • Drug Offenses
  • Firearms Offenses
  • Miscellaneous Offenses