SC Lawyer, May 2004, #5. Protecting your non-citizen client from immigration consequences of criminal activity.

AuthorBy Allen C. Ladd

South Carolina Lawyer

2004.

SC Lawyer, May 2004, #5.

Protecting your non-citizen client from immigration consequences of criminal activity

South Carolina LawyerMay 2004Protecting your non-citizen client from immigration consequences of criminal activityBy Allen C. LaddA non-citizen client charged with a criminal offense faces serious potential consequences under U.S. immigration law. Convictions for crimes involving moral turpitude, multiple offenses and aggravated felonies will, generally speaking, render the non-citizen powerless to remain in this country legally. In some instances, admission to a crime or suspected criminal behavior without a conviction is sufficient. This article is an overview of the collateral consequences of criminal activity affecting the non-citizen client.

Basic concepts and terms

If convicted, the non-citizen not only faces sentencing under the state or federal criminal justice system but also may be prosecuted under the U.S. immigration laws. While this is an administrative, not criminal, setting, the consequences are often severe: forcible removal from the United States (formerly called "deportation" or "exclusion") and a bar to lawful admission (formerly called "lawful entry") in the future.

The term "non-citizens" refers to any foreign nationals who are not U.S. citizens. This term cuts a very broad swathe from undocumented aliens, visitors, students and work-visa holders to permanent residents and green card holders. For purposes of this article, the client's legal or illegal immigration status is irrelevant; all are equally at risk.

"Deportable" means that a non-citizen is subject to removal from the U.S. through proceedings prosecuted by the Department of Homeland Security (DHS) and/or the Department of Justice (DOJ). The non-citizen "in proceedings" may be also detained. Recently, the DHS announced a mandatory detention program for individuals who are subject to removal orders. "ICE Expands Pilot Project to Detain Deportable Aliens," DHS Immigration and Customs Enforcement press release, March 26, 2004. Once "removed" (deported), the non-citizen is barred from returning for at least 10 years. That is, he or she is "inadmissible" for this period.

The various criminal-related "grounds of deportability" are set out in 8 U.S.C. § 1227. The various "grounds of inadmissibility" are found in 8 U.S.C. § 1182. A representative sampling appears in the chart that accompanies this article.

Conduct or convictions that make the non-citizen "inadmissible" will trigger these harsh consequences:

* denial of visa at a U.S. consulate;

* denial of lawful entry (admission) into the U.S. at an entry point; (The administrative proceedings to deny an individual entry, formerly called "exclusion" proceedings, are now merged into "removal" proceedings.) Warning: This can even happen to returning permanent residents.

* detention, following denial of admission at an entry point, followed by removal; and

* if the non-citizen is already in the United States, whether in lawful or unlawful status, inadmissibility will trigger a denial of an application to (a) extend, (b) change "visa status" or (c) "adjust" to permanent residence. In effect, he or she hits a glass ceiling.

Generally speaking, grounds of deportability are broader than the grounds of inadmissibility. The respective burdens of proof are:

* The non-citizen must establish admissibility by evidence that is "clear and beyond a doubt." 8 U.S.C. § 1229a (c)(2).

* The government must establish deportability by clear and convincing...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT