Many non-citizens are very unfamiliar with the immigration consequences of criminal convictions. In my practice I have found that most people are mislead by the terms misdemeanor and felony convictions. In fact, most non-citizens who are unfamiliar with criminal procedure often believe that if they simply pay a fine then the crime will have no future implication on their immigration status. Most clients then unexpectedly find themselves in removal proceedings without any hope of preventing their deportation from the United States. This article will highlight the importance that a non-citizen must take when faced with a criminal conviction.
Under immigration law non-citizens and permanent residents are all subject to deportation if they have a criminal history. However, not all crimes will result in deportation. The United States Government has been very diligent in increasing the list of crimes that will result in deportation. In addition, many states are in the process of imposing felony convictions on non-citizens for fraudulent documents and so forth. In the distant past, non-citizens did not have to fear deportation based on criminal convictions unless they were convicted of a felony or a very serious crime. This is the past. Under present immigration all non-citizens, including permanent residents, can be deported for minor state misdemeanor criminal convictions even if they never spent a day in jail.
First, it is very important that all non-citizens, including permanent residents, know that they should never proceed to criminal court without an attorney who is knowledgeable of both criminal and immigration law. Most non-citizens assume that the Court will inform them of any possible immigration consequences. This is not true. The Court does not provide and cannot provide legal advice to non-citizens i.e., defendants. The Court does not represent the non-citizen and therefore the Judge is not obligated to explain in detail all adverse immigration consequences that may occur from a guilty or a no contest plea. It is very important to hire a criminal attorney who is aware of the immigration consequences of a guilty plea. In the event that a non-citizen cannot afford a criminal attorney it would still be beneficial to consult with an immigration attorney on the possible immigration consequences before pleading guilty or no contest.
Under immigration law non-citizens are deportable if they are convicted on an aggravated felony or a crime of moral turpitude. The list of crimes that fall into theses two categories are extremely lengthy and it would be impossible to discuss all crimes in this article. However, there are two specific crimes that are very common that usually results in deportation. We will discuss these two crimes in this article. The most common types of crimes are simple battery and theft by shoplifting. Simple battery is usually a misdemeanor under Georgia’s state law. However, if you are convicted of simple battery and you are sentenced to twelve (12) months confinement you will be considered an aggravated felon under Immigration law and you are deportable. Usually, individuals who are sentenced to twelve (12) months confinement will be allowed to serve their sentence on probation. Consequently, these individuals usually mistakenly believe that since they did not have to spend any time in jail that they are not deportable. This is incorrect. Immigration does not care if you never spent a day in jail as this has no bearing on the case. Under Immigration law you are considered an aggravated felon if you were sentenced to twelve (12) months in jail for battery despite the fact that you never spent a day in jail.
The second most common offense is theft by shoplifting. There are many people who stole a pack of gum or something very minor when they were growing up in the United States. Usually, if an individual has never had any prior criminal history he or she will probably just plead guilty and pay a fine. This is huge mistake. Non-citizens who are unrepresented or have a public defender will usually plead guilty without knowing the immigration consequences of their plea. Under Immigration law all non-citizens, including permanent residents, who pled guilty or no contest to theft and receive a sentence of 12 months confinement are deemed to be aggravated felons. As previously mentioned, all aggravated felons are deportable.
Most of my clients who then later find out that they are deportable always think there must be a waiver. This is another huge mistake. Under current immigration laws there is no waiver for aggravated felons. This means that individuals who are permanent residents who plead guilty to simple battery or theft and receive a twelve (12) month sentence are deportable. There is no waiver. This is very tragic and fundamentally unfair especially when permanent residents have virtually lived all their lives in the United States and they have no family in their country of birth. To add insult to injury, under current immigration laws, aggravated felons will have a difficult time in his/her attempt to return to the United States in any immigration status unless the United States government changes the law. The bottom line is that all non-citizens, including permanent residents, must seek immigration advice when faced with a criminal charge. It is never wise to proceed to Court and pled guilty to criminal charges.
Disclaimer: This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.
About the Writer:Safiya Byars is a native of Jamaica and an attorney in Decatur, Georgia. Her firm is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Safiya Byars has served as the senior immigration attorney with boutique immigration firms in both Alabama and Georgia. Her firm handles all Immigration Matters, Deportation, Domestic Relations, Criminal Defense, Business Formation and Litigation, Landlord/Tenant and Wills/Probate/Trusts. To discuss your case, please contact Attorney Byars at 404-992-6506 or 678-954-5809 or via email.