Aliens who have not been admitted to the United States are subject to removal on grounds of inadmissibility under federal immigration law. Aliens who have been admitted to the United States are subject to removal on grounds of deportability. Aliens are people who are not citizens or nationals of the United States. The grounds of removal that apply to an admitted alien are located at Immigration and Nationality Act (INA) § 237(a), 8 U.S.C. § 1227(a). These grounds include criminal offenses, such as crimes involving firearms, controlled substances, acts of moral turpitude, and aggravated felonies. This article covers the remaining criminal offenses.
Criminal Grounds of Removal
Generally, INA § 237(a)(2) contains the numerous criminal grounds for removal that exist in the Act. These include convictions for a crime of moral turpitude, for an aggravated felony , for a controlled substances offense , for a firearms conviction, and for crimes of domestic violence. The government has the burden of proving that a noncitizen is removable under INA § 237(a), so it must establish by clear, convincing and unequivocal evidence that the alien has been convicted of the alleged crime.
Definition of Conviction
In addition to a formal judgment of guilt entered by a court, the definition of conviction includes the withholding of adjudication of guilt where:
- A judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere or has admitted enough facts to warrant a finding of guilt, and
- The judge has ordered some form of punishment, penalty, or restraint on the alien's liberty, including a term of imprisonment or sentence, even if the imposition of any part of it is suspended
A conviction that is on direct appeal is not final and may not serve as the basis for removal.
There are numerous criminal offenses that provide grounds for deportation, including:
- High speed flight - There is a ground of deportation for aliens who are convicted of the crime of "high speed flight" from an immigration checkpoint. "High speed flight" is fleeing or evading a checkpoint in excess of the legal speed limit.
- Failure to register as a sex offender - People who have been convicted of certain sex offenses, such as rape or forcible sodomy, are required by law to register with state agencies. An alien who fails to register as a convicted sex offender is subject to deportation.
Crimes of Domestic Violence
Crimes of domestic violence that provides grounds for deportation include:
- Domestic violence, stalking and child abuse - Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect or child abandonment is deportable. A "crime of domestic violence" means any crime of violence against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the state where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any state, Indian tribal government, or local government.
- Violators of protection orders - Any alien against whom an order of protection is issued by a court and who the court finds finds violated the order is deportable. The term "order of protection" or "protection order" means any instruction issued for the purpose of preventing threats of violence, repeated harassment, or bodily injury, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a temporary order in another proceeding.
Questions for Your Attorney
- If I'm convicted of (one of these crimes), is there any way to avoid removal?What if I'm not convicted of a crime, but just accused, or I plead "no contest" and am put on probation, with the hope the case will be dismissed after a while?