People from other countries who have been admitted to the United States, including those who have received a visa or green card (lawful permanent residence), can be subsequently removed if they fall into one of the grounds of "deportability." The full list of these grounds can be found at Immigration and Nationality Act (INA) § 237(a), 8 U.S.C. § 1227(a).
The grounds of deportability include a combination of broadly described crimes (such as "crimes of moral turpitude" and "aggravated felonies") and specifically named crimes.
In the former case, it can be difficult to determine whether someone's crime falls into the category. Crimes of moral turpitude, for example, can include any number of offenses, from murder to rape to tax evasion.
In this article, however, we'll focus on the criminal offenses that are actually named in the law (or, in some cases, named by reference to another federal statute). These can be somewhat easier to analyze in terms of their impact on a person's deportability.
Nevertheless, because there's always room for doubt or complexity in figuring out whether a conviction under state law matches the list found in U.S. federal law, if you have been arrested for any sort of crime, and you are not a U.S. citizen, you should absolutely consult with an immigration attorney as well as a criminal attorney. Together, they can help make sure you protect any right you may have to remain in the United States. (Immigration waivers, or legal forgiveness, may also be available for some crimes.)
Final Conviction Ordinarily Needed for Removal
A mere arrest is not, in most cases, enough to get a person deported from the United States. (That's why it's important to see a lawyer as early in the process as possible.) But once there's a conviction in place, it's very difficult to undo, and you must simply deal with the immigration consequences.
What is a "conviction?" The immigration law definition is very broad, covering situations where a court or judge has entered a formal judgment of guilt, the defendant has pled guilty or no contest ("nolo contendere"), or the defendant has admitted to having committed the offense, where the court has ordered some form of punishment, penalty (such as payment of a fine), or restraint on the defendant's liberty (not necessarily actual jail time, and including suspended sentences).
A conviction that is on direct appeal to a higher court is not final, and thus may not serve as the basis for removal from the United States.
Listed Crimes That Make a Non-Citizen Deportable
Here is a brief overview of the many named criminal offenses that provide grounds for deportation (removal) from the U.S.:
- High-speed flight from immigration checkpoint - 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. A non-citizen who fails to do so is subject to deportation.
- Domestic violence, stalking, and child abuse - A non-citizen who, at any time after being admitted to the U.S., is convicted of domestic violence, stalking, child abuse, child neglect, or child abandonment is deportable. Domestic violence crimes are defined as involving violence by a current or former spouse, the other parent of one's child, a cohabitant of one's living space, or someone otherwise covered by the domestic or family violence laws of the state, federal, Indian tribal, or local government.
- Violation of a protective order - Any non-citizen against whom a court has issued an order of protection (from, for example, threats, violence, or harassment) and who violates the order is deportable.
- Espionage, sabotage, treason, or sedition - if the offense can be punished by a term of imprisonment of five years or more.
- Threatening the U.S. President - anyone who mails or delivers any sort of letter or document threatening to take the life of, kidnap, or inflict bodily harm upon the U.S. President, President-elect, Vice President, or other officer next in the order of succession to the office of President, or the Vice President-elect, becomes deportable.
- Joining force against another, friendly government - If, from within the U.S., a non-citizen supports or takes part in any military expedition or enterprise against any foreign state or people with whom the U.S. has peaceful relations, that person can be deported.
- Participates in alien smuggling or creation or use of false U.S. entry or exit documents - This may include, for example, producing or providing counterfeit passports, visas, or reentry permits.
- Bringing someone into the U.S. for purposes of prostitution or other immoral act - Human trafficking is also separately listed as a ground of deportability.
U.S. Government's Burden to Prove Criminal Grounds of Removal
The U.S. government has the burden of proving that a non-citizen is removable under I.N.A. § 237(a). That means it must establish by clear, convincing, and unequivocal evidence that the person has been convicted of the alleged crime.
In most cases, that's not difficult for it to do, given that the conviction is a matter of public record. Nevertheless, this is a reminder that a skilled attorney may be able to argue that the government has not met its burden.
Questions for Your Attorney
- If I'm convicted of a crime on the list above, is there any way to avoid removal?
- What if I'm not actually convicted of a crime, but just accused?
- What if I plead "no contest" and am put on probation; can I hope the case will be dismissed after a while?
- Would you review my record of conviction and tell me whether I face removal?
- When will I know whether U.S. immigration authorities will place a hold on me and put me into removal proceedings when I'm due for release from prison?
- What if my domestic violence conviction resulted from me defending myself in a fight?