E. Sometimes the Sentence Does NOT Matter a Damn Bit

Certain offenses are what they are for immigration purposes regardless of the length of the criminal sentence, and even regardless of whether there IS a sentence. In such cases, obviously, a deferred adjudication has no benefit over any other type of conviction."
Some examples of offenses where the sentence does not matter include:
Murder, rape or sexual abuse of a minor, all of which are aggravated felonies under INA §lOl(a)(43)(A) regardless of sentence.
Any controlled substance offense will make an alien deportable regardless of sentence.
JNA §2l2(a)(2)(A)(i)(ll).
Any controlled substance offense will also make an alien deportable regardless of sentence, except for a single offense of simple possession for personal use of less than 30 grams of marijuana.
INA §237(a)(2)(B).
Drug trafficking crimes, which are aggravated felonies regardless of the sentence.
INA §lOl(a)(43)(B).
Any criminal offense relating to a firearm will render an alien subject to deportation regardless of sentence or the severity of the offense. INA §237(a)(2)(C).
Illicit trafficking in firearms is an "aggravated felony regardless of sentence. INA §10l(a)(43)(C).
Domestic violence offenses are deportable offenses regardless of sentence. INA §237(a)(2)(E); and
A single crime involving moral turpitude is a deportable offense if a sentence of a year or more may be imposed -- the actual sentence received is immaterial to deportability. INA §237(a)(2)(A)(i).

The Seven Things Everyone Should Know

George Carlin once had a great comedy routine about the "Seven words you cannot say on television." Well, I hereby offer my thoughts on the "seven things everyone should know about crimes and immigration." Now that we have established some context for the discussion that follows, here are the Seven Things:

B. Relief from Removal

A deportation or removal hearing, much like a criminal trial, has two parts. The first part is to determine the issue of deportability or (in the case of an arriving alien) inadmissibility. This is comparable to the guilt or innocence phase of a criminal, trial. The alien (called the "Respondent") is called upon to plead to the charges on the charging document. If any of the charges are denied, a hearing is conducted to determine whether the Respondent is deportable. If deportability is based upon a criminal conviction, documentary evidence of the conviction submitted by the prosecuting attorney from the Department of Homeland Security ("DHS") is usually the total extent of the evidentiary "hearing," as noted above.
If the Respondent is found deportable, the second phase of the hearing is to determine whether he or she must be deported or whether there is some form of relief from deportation available. This is comparable to the punishment phase of a criminal trial. Some examples of relief include asylum, "cancellation of removal," and various discretionary waivers of deportability or inadmissibility.
All the forms of relief from removal, the various statutory grounds of eligibility and discretionary factors, is a topic far too complicated for a paper like this to provide even a smattering of coverage. Criminal defense practitioners are therefore encouraged to consult an experienced immigration attorney before representing a non-citizen client. Suffice to say for present purposes that where the "INA " provides no relief from removal, as is often the case where deportability is based upon criminal conduct, both phases of the proceedings may be completed in as little as five minutes. The DHS attorney submits an authenticated copy of the criminal judgment, that judgment renders the Respondent deportable and ineligible for any relief, and "No more America for you, Jack!"

How the Proceedings "Proceed"

One thing must be clearly understood: criminal cases are in no way relit gated in Immigration Court. An Immigration Judge will not go behind a criminal conviction, nor question the underlying sufficiency of it. Matter of Roberts, 20 I. & N. Dec. 294 (IA 1991). Submission of a certified copy of the conviction generally constitutes the entire evidentiary portion of the deportation hearing. Whatever is said in that certified copy is conclusively proven in deportation proceedings.
It therefore does not matter what the alien did or did not do - the only thing that matters is what the judgment says he or she did. Deportability becomes a pure question of law: whether the judgment submitted qualifies as a "conviction," and whether the offense qualifies as one of the deportable categories contained in the Immigration and Nationality Act

Nature of the Proceedings

There is no jury in Immigration Court proceedings: the Immigration Judge is empowered to make both findings of fact and conclusions of law. The Strict rules of evidence do not apply, and hearsay is routinely admitted. Further, the Supreme Court has repeatedly held that deportation proceedings are civil in nature, and that the constitutional safeguards available to criminal defendants --such as protection against unlawfully seized evidence and ex post facto application of new legislation­ do not apply

II. BACKGROUND INFORMATION.

Before proceeding, it would be useful to settle some basic terminology. The law defines an "alien" as anyone who is not a citizen or national of the United States (the distinction between a "citizen" and a "national" is subtle, and of no relevance to this discussion). Aliens may generally be divided into two groups: those with permanent legal status in the United States, and those without. Those who are entitled to reside and work here permanently are called "lawful permanent residents" or "LPR's". The card that evidences LPR status is commonly called a "green card," although it has not been green for over years.
After residing in the U.S. for a certain period of time (usually five years after receiving LPR status), an otherwise eligible immigrant may apply to become a United States citizen through a process called "naturalization."
Aliens who are not LPR's may be in the United States legally in a temporary or "nonimmigrant" visa status. Common examples of nonimmigrant categories include tourist visas and border crossing cards, student visas, and several types of temporary worker visas. And, of course, many aliens, especially in the border areas, may be here illegally without any status.
Criminal conduct may be relevant to a non-citizen in several ways. For an alien who is not an LPR, a conviction will almost certainly result in deportation or removal, and even an "admission of the essential elements" of certain offenses may prevent them from ever receiving permanent resident status. For an LPR, convictions of certain offenses will result in deportation or removal. At the very least, a conviction may prevent an otherwise qualified permanent resident from becoming a citizen.

INTRODUCTION

Let's begin with two simple facts: First, many people residing in the United States are not United States citizens. That is why immigration attorneys call earns a living. Second, many people residing in this country occasionally run afoul of its criminal laws. That is why criminal defense attorneys can earn a living. Sometimes, these two groups intersect such that immigration attorneys may find clients accused or even convicted of crimes, and criminal defense attorneys may have clients who are not citizens. Worlds collide. Chaos threatens. Things --often very bad things --happen.
For the most part, the criminal justice system is unconcerned with the citizenship of its customers. Citizens and immigrants are sent to jail without distinction. The criminal defense attorney can therefore manage to perform his or her function with knowing much immigration law. The immigration legal system however, places very significance criminal conduct such that the "civil" immigration consequences €“deportation or removal, permanent exile from the United States, denial of any opportunity to obtain or preserve legal status, etc. --­ are frequently far more severe than the harshest possible criminal sentence. Ask yourself: €œWhich would you rather endure, a year in a U.S. jail, or the rest of you life across the world, with no chance to return to your family, home and job in the United States?"
Since the immigration consequences are so severe, both the immigration attorney and the criminal defense practitioner should be aware of those consequences. In some cases, of course, it will not be possible to change the outcome of the criminal trial, nor the immigration proceedings that follow. In many others, however, tragedy may be prevented if the defense attorney and the client are simply aware of the immigration issues. Immigration and criminal defense lawyers can work together to anticipate and prevent unjust results. This paper intends a modest start. Some of the information will be very basic for immigration attorneys, because it is being written from the perspective of an immigration attorney speaking to other attorneys who may have less familiarity with the Immigration and Nationality Act.

Attorney & Court Updates

Disclaimer
The information contained in this article is intended to educate members of the public generally and is not intended to provide case-specific legal advice or solutions to individual problems. Readers are not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel who is familiar with the Immigration Laws before relying on the information contained in theses articles.
Each Immigration case is different, based on the circumstance, rights of the alien and the location of the DHS (INS) office and immigration judge. Please do not take the following articles and court decisions, as possible final answer to your case, as they may vary form the examples.