Repercussions of a Criminal Case on Immigration
December 28, 2023
Potential Effects of a Criminal Conviction on Your Immigration Status in New Jersey
Immigrants seeking legal status in the United States face roadblocks when they have a criminal history. Even a single conviction may jeopardize immigration to the United States. Title 8 of the U.S. Code, the Immigration and Nationality Act, enumerates the specific crimes that bar immigrants’ legal entry or residence in the United States for crimes of moral turpitude and statutory violations, among other illegal behaviors constituting crimes. Worse, a conviction may lead to deportation, detention, and criminal charges.
What Does the Law Say about Immigration Disqualifications in Title 8 of the U.S. Code?
Title 8, Section 1182 of the U.S. Code outlines visa or admission ineligibility criteria for aliens. Section (2) disqualifies those who commit, conspire to or are convicted of committing crimes of moral turpitude (reprehensible crimes, like sexual assault or theft) or any state or federal laws unless certain exceptions apply. One exception applies when the alien was a minor when committing a (one) crime that occurred five years or more before applying for a visa or admission into the country. Another exception applies to minor offenses, carrying a sentence of no more than one year, and the alien served no more than six months for the conviction.
Other disqualifiers include committing multiple crimes with a potential combined sentence of five or more years of incarceration. Additionally, anyone involved in commercial vices, like drugs, prostitution, and human trafficking is barred. As such, drug trafficking or a family member benefiting financially from a disqualified alien’s illegal activities are ineligible to immigrate, the exception being children of drug traffickers who received benefits of the unlawful activity as young children. Also, anyone involved in prostitution within ten years of applying for a visa or immigration or who comes to the United States to be involved in prostitution is not allowed to stay in the country legally.
Finally, those granted immunity for their involvement in serious crimes, foreign officials committing severe religious freedom infringement, money laundering participants, persons deemed security risks to law and order, such as breaking laws or attempting to overthrow the government, and terrorists and their participants. The statute excepts family members of a terrorist reasonably unaware of the terrorism or terrorist activities.
How Criminal Offenses can Jeopardize Immigration Status
In essence, if you are in the country as a lawful permanent resident, refugee, temporary visa, or undocumented alien, you could be convicted for drug possession or firearm possession, domestic violence, child abuse, or violation of a restraining order and jeopardize your immigration status in the country and face deportation.
Different Categories of Immigration Statuses can Lead to Different Results
The outcomes for a noncitizen after arrest and conviction vary. Once a court convicts an individual of a crime or discovers a criminal conviction as defined in 8 U.S.C. 1101 a (48) as a court judgment of guilt, a guilty verdict by judge or jury, or guilty or nolo contendere plea followed by a sentence (including diversionary programs), an individual may face immigration consequences.
Undocumented Aliens Charged with Crimes in NJ
Undocumented aliens are most vulnerable to deportation, even for minor offenses, such as disorderly persons offenses. However, being in the country illegally is a crime, so an illegal alien can face immigration officers for committing an offense or for not having proper immigration documents. After arrest, Immigration and Customs Enforcement may detain an alien until their deportation hearing or release them with a Notice to Appear for a hearing in immigration court. Failing to appear results in a deportation order. At the hearing, they may petition the court to stay on eligible grounds, such as asylum, if applicable.
Temporary Residents Facing Criminal Charges in New Jersey
As a temporary resident or as a visa holder, they may face deportation for crimes of moral turpitude, drug and gun violations, domestic violence, theft, sex offenses, treason, espionage, and other aggravated felonies, such as violent crimes or drug trafficking. While Immigration and Customs Enforcement (ICE) attorneys will seek to deport a visa holder, the decision is ultimately up to an immigration judge or the Executive Office for Immigration Review that oversees the immigration court system. As such, anyone facing deportation should seek help from an immigration attorney to defend you.
Permanent Residents who get Arrested and Convicted in NJ
However, even a permanent resident can be removed for certain criminal convictions. The difference is that additional relief is available to permanent residents living in the United States for ten or more years. When they can show that they have no convictions for disqualifying crimes, good moral character, and U.S. citizen family members who would suffer significant hardship from their deportation, an immigration judge can rule against deportation.
Common Routes to Deportation based on Criminal Records
Most deportations occur after arrest and discovery of an immigrant’s status, triggering an ICE detainer, meaning incarceration. However, the Department of Homeland Security detainers also lead to deportations unless an individual successfully defends against deportation by seeking asylum or post-conviction relief to vacate the conviction and avoid deportation. But ICE officials may also discover a criminal conviction when a person renews their visa, receives their green card, adjusts their status, reenters the country, or seeks immigration benefits.
However, deportation may come about through many channels. For example, the FBI or DEA may investigate a crime ring and identify immigrants with convictions, or the Department of Homeland Security, which governs immigration, may discover cyber security and terrorist threats by specific individuals attempting to enter the country. The various investigative agencies may be sources of discovery that lead to detainers and the immigration courts.
Types of Immigration Repercussions from Criminal Cases
A conviction for violating New Jersey law can lead to deportation. Once the government proves the immigration status of the individual, the judge can make a deportation order. Mandatory deportation applies to crimes of moral turpitude, aggravated felonies, and any offenses by an undocumented immigrant. Thus, those with convictions for crimes involving drugs, violence, fraud, murder, sex, and firearms may be ordered to leave the country.
Bar from Seeking Hardship Waiver, Asylum, or Removal Relief
Certain convictions bar individuals from seeking hardship waivers, asylum, or other removal relief, such as a cancelation of removal for permanent residents in the U.S. for seven or more years or undocumented immigrants in the U.S. for at least ten years and removal would cause extreme hardship to a related U.S. citizen. Asylum seekers can stop removal by proving they will be persecuted or tortured in their home country upon return. An immigration judge may also waive certain conduct preventing approval of a permanent resident application. A hardship waiver pertains to those who can prove that their life or freedom is at risk due to their political, religious, or social group affiliations, nationality, or race.
Bar from Limited Judicial Review
Criminal convictions may bar limited judicial review of expedited noncitizen removals. Not all noncitizens get deportation hearings. They can be summarily removed from the U.S., such as undocumented noncitizens without valid papers arriving at a port of entry, including those intercepted at sea, new arrivals who have not been admitted into the U.S., and those whose temporary admittance ends. These individuals may seek limited judicial review of their claimed credible fear, status review, and asylum grounds.
Bar from Return to the United States
In addition to deportation, a criminal conviction may bar an individual from returning to the U.S. after deportation. An individual may be unable to return to the U.S. for up to 20 years after deportation. An aggravated felony conviction or returning to the U.S. illegally after deportation can result in a permanent bar from returning to the U.S. Moreover, a person reentering the U.S. illegally after deportation may face felony charges with enhanced or extra penalties.
Permanent Bar from Naturalization
Finally, aggravated felonies may result in a permanent bar to naturalization. Also, those participating in genocide, torture, persecution, or religious freedom violations are permanently barred from becoming a United States citizen. Other criminal convictions may lead to a citizenship bar for several years.
Talk to a Criminal Defense Lawyer to Defend Your Case and Prevent Immigration Issues in Burlington County NJ
Criminal convictions for immigrants can have life-threatening consequences. To prevent deportation, an individual needs legal help. Our team of New Jersey criminal defense lawyers can often help immigrants contest criminal charges and avoid conviction and, thus, deportation. Alternatively, we can negotiate a crime reduction to a minor offense and avoid deportation under certain circumstances. An immigration lawyer can help defend you at immigration proceedings, but you may be able to avoid them entirely by getting the charges against you dropped or minimized to the lowest possible level.
If you face criminal charges as an immigrant in Burlington County or elsewhere in Southern New Jersey, get advice from a criminal defense attorney at our firm to help you avoid a conviction and stay in the country. We provide free consultations in criminal cases around the clock, so feel free to reach out to us online or by phone at 609-850-8284.