Immigration Issues When Your Facing Criminal Charges

Word to the wise both for lawyers and those clients that have immigration issues when facing a criminal charge:

The Appeals Court of Massachusetts makes it clear that for Padilla purposes, immigration consequences are “easily determined” if the defendant/alien is pleading or offering an admission to any offense listed in 8 U.S.C. sec 1227(a)(2), the statute is here  which are the criminal grounds for removability. Committing an offense listed in the statute makes deportation “practically inevitable” for Padilla purposes, if the plea was after the 1996 Amendments to the INA. Violating a Restraining Order is a removable offense if the order violated is for protection of persons.

One aspect of this which has not been addressed is criminal pleas which make one inadmissible. There is a separate list of grounds of inadmissibility, which includes among other things, commission of a single crime involving moral turpitude at any time. If you have been here as a permanent resident more than 5 years, you are not removable unless you have committed two crimes involving moral turpitude not arising out of the same incident. But, if you have only 1 such conviction and can’t be deported, you can still be inadmissible if you travel outside the U.S. and attempt to return. This used to be no big deal – Customs and Border Patrol almost never detected the prior conviction, so it was rare for them to invoke the inadmissibility.

Now, CBP has access to FBI and other databases, and they pick these up right away. So, if you represent a non-citizen who has been here more than 5 years and who is pleading to a crime which may be a crime involving moral turpitude, the wrinkle is, he may not be deportable, but if he leaves the US, that conviction may prevent him from returning, even from a weekend trip to Montreal.

You may also want to advise non-citizens that Congress can expand the list of removable offenses, and that any change may be retroactive to include crimes which were not removable offenses at the time of the offense or at the time of conviction. This means advice that you give now and which is a correct statement of the law as it stands now, may be subject to changes in the law at any time in the future.

Check out Commonwealth v. Henry, October 1, 2015.

Attorney Gregory Oberhauser

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Gregory Oberhauser is the ONLY attorney in Massachusetts to be distinguished as an ACS-CHAL Forensic Lawyer-Scientist by the American Chemical Society!

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