Criminal Defense of Immigrants in California

If you are not a United States citizen, a California criminal conviction for a “deportable crime” or “inadmissible crime” can have serious consequences for your immigration status.
Under United States immigration law, certain kinds of criminal convictions can lead to a non-citizen being deported – regardless of how long s/he has lived in the US or how well-established his or her life is here.¹ These are so-called ” deportable crimes.”

Also, certain California criminal convictions (for so-called “inadmissible crimes“) can make an immigrant  “inadmissible.” ² This can mean (among other things) that s/he will not be allowed to:

1. re-enter the country after leaving,
2. become a US citizen, or
3. apply for permanent residence or an “adjustment of status” – that is, a change from illegal to legal immigration status.³

Not only that — but in some cases, you do not even need to be convicted of a crime to suffer adverse immigration consequences like deportation. This is because a non-citizen can be made deportable or inadmissible simply for engaging in certain kinds of conduct, including drug trafficking and prostitution — even if s/he is never convicted of this activity in a criminal court.⁴

The following chart shows the types of crimes that make a non-citizen deportable and/or inadmissible:

Type of California Criminal Offense	Deportable Crime?	Inadmissible Crime?
Crimes of moral turpitude (CIMTs)	1)      Yes, if convicted within five years of admission to U.S. and sentence of at least one year may be imposed 2)      Yes, if convicted of two or more CIMTs	Yes, if either convicted or admit all elements of a CIMT, UNLESS: 1)      Only one crime; 2)      Maximum penalty one year or less; and 3)      Sentence to six months or less in jail
Aggravated felonies	Yes	No
Controlled substances offenses	Yes, unless simple possession of 30 grams or less of marijuana	Yes, if either convicted of or admit all elements of drug crime
Firearms offenses	Yes	No
Domestic violence crimes	Yes	No
Multiple convictions with total sentence of at least five years	No	Yes

Type of California Criminal Offense	Immigration Consequences
Crimes of moral turpitude (CIMTs)	Deportable crime if: 1)      Conviction occurs within five years of admission to U.S. and a sentence of at least one year may be imposed; or 2)      Convicted of two or more CIMTs Inadmissible crime unless only one conviction with a maximum sentence of one year or less and actual sentence of six months or less
Aggravated felonies	Deportable crime
Controlled substances offenses	Deportable crime; inadmissible crime
Firearms offenses	Deportable crime
Domestic violence crimes	Deportable crime
Multiple convictions with a total sentence of at least five years	Inadmissible crime

Non-citizens facing criminal charges in California

Tragically, many immigrants who face California criminal charges are represented by attorneys who do not understand the immigration consequences of certain outcomes–including guilty or “no contest” pleas.

These attorneys may offer good advice on how to reduce a criminal sentence. But that advice may lead to a result for the client that is far worse than a longer sentence – namely, removal from the country that they know as home.

Example: Natasha came to the United States from Russia with her parents when She was four and has lived as a legal immigrant here ever since. When she is 20, she gets arrested for possessing cocaine.

The prosecutor initially charges Natasha with California “drug possession for sale.” Her criminal defense attorney – who does not understand immigration law – advises her to plead guilty instead to simple possession of a controlled substance, which will make her eligible for a “drug diversion” program instead of jail time.

Unfortunately, Natasha’s guilty plea for drug possession makes her deportable — something she finds out only after she has pled guilty.⁵ If her attorney had understood criminal and immigration law, he would probably have advised her to fight the more serious charge instead.

This is why it is extremely important for all non-citizens facing criminal charges to be represented by a criminal defense and immigration attorney who understands immigration law as well as criminal law. Now that President Trump has taken executive action to increase the number of deportations of immigrants for any reason, including criminal convictions, it is more important than ever.

In order to help you better understand the consequences of criminal convictions for your immigration status, our California immigration lawyers address the following, below:

• 1. Deportation Due to California Criminal Convictions
  • 1.1. Who is subject to deportation for criminal convictions?
  • 1.2. Which California crimes are “deportable crimes?”
• 2. Inadmissibility Due to California Criminal Convictions
  • 2.1. What does it mean to be inadmissible?
  • 2.2. Which California crimes are “inadmissible crimes”?
• 3. Can I Be Deported or Inadmissible if I Have Not Been Convicted of a Crime?
• 4. What Happens at a Removal Hearing in Immigration Court?
• 5. Can I Use Post-Conviction Relief to Avoid Deportation/Inadmissibility?

1. Deportation Due to California Deportation Criminal Convictions

1.1 Who is subject to deportation for criminal convictions?

The federal Immigration and Nationality Act (usually referred to as the “INA”) provides that any non-citizen living in the United States may be deported – that is, removed from the country – if they are convicted of certain criminal offenses.⁶

This is an absolute rule. It does not matter:

• how long you have lived in the country,⁷
• how strong your ties (job, family, owning a business, etc.) are here,
• whether you have a dependent child who is a US citizen,⁸ or
• whether you are a legal or an illegal immigrant.⁹

Example: Sam was born in Vietnam. But he moved to Orange County with his parents when he was three years old and has been here legally ever since.

Sam is now in his mid-thirties, owns a home, and runs a small business that employs 30 people. He also has two children who are United States citizens. He has never even been back to Vietnam since moving here.

However, if Sam is convicted of a California deportable crime, he may still be removed from the country and sent back to Vietnam.

1.2. Which California crimes are “deportable crimes”?

Luckily, it is not the case that every criminal conviction can lead to you being deported from the United States. Instead, section 237 of the INA sets out a list of specific crimes that can make a non-citizen deportable.¹⁰

The major categories of “deportable crimes” are:

1. So-called “crimes of moral turpitude,”
2. So-called “aggravated felonies“
3. Controlled substances (drug) offenses,
4. Firearms offenses, and
5. Domestic violence crimes.¹¹

“Crimes of moral turpitude”

“Crimes of moral turpitude” (also known as “crimes involving moral turpitude” or “CIMTs”) are challenging to define. The INA does not provide a definition of the phrase “crime of moral turpitude”¹² — so courts have had to come up with their own definition.¹³

Generally speaking, a crime of moral turpitude is a crime that involves any of

• Dishonesty,
• Fraud, or
• Antisocial behavior that harms others.¹⁴

Just a few examples of crimes that California courts have decided are crimes involving moral turpitude are:

• Arson,¹⁵
• Burglary,¹⁶
• Forgery,¹⁷
• Kidnapping,¹⁸
• Possession for sale of controlled substances,¹⁹ and
• Repeated felony convictions for driving under the influence (DUI).²⁰

(On that last item, the immigration consequences of a California DUI conviction are a very complicated topic and are best addressed by an experienced California criminal immigration attorney.)

Just being convicted of a single crime of moral turpitude is not enough to make you deportable. Instead, you are deportable only if you either:

1. Are convicted of a crime of moral turpitude for which a sentence of one (1) year or longer may be imposed, within five (5) years of being admitted to the US, OR
2. Are convicted of two (2) or more crimes of moral turpitude that did not arise out of a single criminal scheme.²¹

Aggravated felonies

An alien who is convicted of a so-called “aggravated felony” can be deported.²² This means that just one conviction for certain felonies in California law can lead to you being removed from this country if you are not a citizen.

The INA sets out a long list of crimes that are considered “aggravated felonies”²³ Some of the most important of these are:

1. Murder,
2. Rape,
3. Sexual abuse of a minor,
4. Theft crimes for which the sentence is more than one (1) year in prison,
5. Crimes related to the operation or supervision of a prostitution business (such as pimping), and
6. Fraud crimes that defraud the victim of at least ten thousand dollars ($10,000).²⁴

Example: Luis is a native of Argentina who has been living in the US on a green card for 15 years. He is charged with the California crime of lewd acts with a child.

Because this is considered an aggravated felony,²⁵ Luis can be deported if he is convicted. So it is in his best interest to fight these charges with his criminal defense of immigrants lawyer as aggressively as possible.

Controlled substances offenses

Almost all California drug crimes can lead to deportation.²⁶

This includes both more serious drug crimes such as sale / transportation of a controlled substance and more minor offenses such as simple possession. The only exception is a single charge of simple possession of marijuana – as long as the amount possessed is thirty (30) grams or less.²⁷

Firearms offenses

Another broad group of crimes that can lead to deportation is offenses related to firearms or destructive devices.²⁸ Specifically, you can be deported if you are convicted of illegally

• purchasing,
• selling,
• exchanging,
• possessing,
• using, or
• carrying

any firearm.²⁹

In practice, this means that virtually any conviction for violating California gun laws can lead to deportation.

Domestic violence offenses

Finally, you can be deported if you are convicted of a California domestic violence crime.³⁰

This includes not only typical domestic violence offenses like domestic battery on a spouse or partner – but also child abuse and even violating a restraining order.³¹

2. Inadmissibility Due to California Criminal Convictions

2.1. What does it mean to be inadmissible?

Being “inadmissible” for a non-US citizen is not the same as being deportable.

While being deportable simply means that you may be removed from the United States, inadmissibility is a trickier concept. ³²

Basically, if a non-US citizen becomes inadmissible, s / he is not eligible to receive any kind of benefit from the US immigration authorities. Inadmissibility matters if you are:

• An undocumented (illegal) immigrant seeking to adjust your status to that of a legal immigrant,

• A legal immigrant who leaves the United States and then needs to re-enter, or

• A legal immigrant seeking US citizenship (aka “naturalization“).³³

In any of these cases, being inadmissible means you will not be able to receive the benefit you are seeking.

But being inadmissible does not mean that you can be removed from the country–with one exception. If you entered the country or received an immigration benefit while you were inadmissible (and the authorities just did not catch it at the time), then you may be deported.³⁴

2.2. Which California crimes are “inadmissible crimes”?

The list of California crimes that make a non-citizen inadmissible are very similar to–but not identical to–the list of deportable crimes. The list of inadmissible crimes is set out in section 212 of the INA. ³⁵

The major categories of crimes that lead to inadmissibility are:

Crimes of moral turpitude

You can be inadmissible if you either

• are convicted of, or
• admit all the elements of,

a crime of moral turpitude.³⁶

(The definition of “crime of moral turpitude” is complicated, and we discuss it above in Section 1.2 of this article.)

The differences between inadmissibility and deportability with regard to crimes of moral turpitude are:

1. Deportability requires a conviction – but you can be inadmissible if you are not convicted of the crime but just admit to all its elements;³⁷ and
2. Deportability requires two convictions of crimes of moral turpitude or else a conviction with a maximum sentence of one year or more within five years of entering the country — BUT inadmissibility has no such requirement.³⁸

Example: Norma was born in Guatemala but has been a lawful permanent resident of the US for ten years. She is convicted of the California crime of forgery–a crime of moral turpitude.

That conviction does not mean that Norma is deportable–it is only a single conviction, and it occurred more than five years after she entered the United States.

However, it does make her inadmissible. This means that Norma may not be allowed to re-enter the US after a trip home to Guatemala to see family.

There is one exception to the rule that a conviction for a crime of moral turpitude makes an alien inadmissible. If

• Your conviction is for only one crime,
• The maximum penalty does not exceed one (1) year, AND
• You are sentenced to a jail term of six (6) months or less,

then a conviction of (or admission to) a crime of moral turpitude will not make you inadmissible.³⁹

This is one more good reason why it is important to hire a lawyer who understands the intersection of criminal and immigration law and the criminal defense of immigrants. If you are charged with a crime of moral turpitude, s/he can help you try to arrange for a charge with a maximum penalty of less than one year–and an actual sentence of less than six months–so that the conviction will not make you inadmissible.

Drug crimes

You can be rendered inadmissible if you either

• are convicted of, or
• admit to all the elements of,

a violation of any state or federal drug law.⁴⁰

Multiple criminal convictions

Finally, you can be deemed inadmissible if

1. You are convicted of two (2) or more crimes (even if they arose out of a single scheme or act), and
2. All the sentences for all the crimes of which you were convicted add up to five (5) years or more.⁴¹

3. Can I Be Deported or Inadmissible if I Have Not Been Convicted of a Crime?

Incredibly enough, you can be declared inadmissible or deportable for criminal conduct even if you were never actually convicted of a crime.

So-called “conduct-based” deportation or inadmissibility does happen. Potential grounds for conduct-based deportability or inadmissibility are:

Prostitution-related conduct

You can be deemed inadmissible–but not deportable–if you either

1. Came to the U.S. to engage in prostitution,
2. Engaged in prostitution within ten years of your application for admission, adjustment of status, or a visa, or
3. Procured or attempted to procure other people to engage in prostitution (e,g, pimping).⁴²

You do not need to have been convicted of crimes related to prostitution to be inadmissible on this basis.⁴³

Example: Anna is from Bulgaria. She enters the U.S.. with the help of a friend named Yuri. Then Yuri demands that she engage in prostitution in order to pay back the money she owes him for bringing her here. Anna works as a prostitute for several months. She is never arrested for prostitution.

A couple of years later, Anna meets Ralph, an American citizen, and they get married. Anna wants to apply for a green card now That she is married to an American. But she may not be able to do so if the government somehow finds out that she engaged in prostitution when she first arrived–because prostitution is grounds for “conduct-based inadmissibility”.

Drug trafficking

Anyone who is known or “reasonably believed” to be involved in drug trafficking–even if s/he is never formally convicted of trafficking–is inadmissible (but not deportable).⁴⁴

Example: Hector is a high-level narcotics dealer in Mexico before he decides to turn his life around. He converts to Christianity and goes back to school, eventually becoming a professor.

Then Hector enters the U.S. on a visa in order to take a temporary teaching position at an American university. While he is in the U.S., Hector publishes an inspirational article describing his transformation from drug dealer to professor.

After his teaching position ends, Hector tries to apply to become a permanent resident. But his application is rejected because–thanks to his article–he is known to have been a drug trafficker in the past, even though he was never convicted of a crime.

Drug addiction

You may be deported if you are currently a drug addict or abuser, or if you have been a drug abuser or addict since you were admitted to the United States.⁴⁵

In addition, you will be inadmissible (but not deportable if you currently are a drug addict or abuser.⁴⁶

According to Los Angeles criminal defense and immigration attorney Neil Shouse ⁴⁷ :

“You may wonder how the government could find out that you have engaged in any of these types of conduct, if you have not been convicted of a crime. There are all sorts of ways, including you publishing a book or article describing your conduct, you revealing this conduct on an application for an immigration-related benefit, or you revealing this information as part of an unrelated civil or criminal court case.”

Example: Roxanne is a citizen of Australia who resides in the U.S. on a green card. She is injured in a freak accident at a grocery store and sues the grocery store’s owner for damages.

As part of a court filing in this lawsuit, Roxanne describe how the pain of her injury has led her to become addicted to painkillers. The grocery store owner sends this filing to the offices of the United States Citizenship and Immigration Services (USCIS).

Roxanne may be deportable because she has now admitted that she is currently a drug addict.

4. What Happens at a Removal Hearing in Immigration Court?

If the U.S. immigration authorities believe that you are either deportable or inadmissible because of a past criminal conviction, you will go through something called a “removal hearing” in U.S. Immigration Court.⁴⁸

You will receive written notice of your removal hearing.⁴⁹ The notice should let you know, among other things,

1. When and where your hearing will be held,
2. The reason you are being targeted for removal, and
3. That you have a right to be represented by an immigration attorney at your hearing.⁵⁰

Your removal hearing will be presided over by someone called an “immigration judge.”⁵¹ At the hearing, you will have the right to

• Be represented by an attorney,
• Examine the evidence against you,
• Present evidence for your case, and
• Cross-examine witnesses against you.⁵²

5. Can I Use Post-Conviction Relief to Avoid Deportation/Inadmissibility?

If you have a conviction for an inadmissible or deportable California crime on your record, you are not necessarily out of luck.

An experienced California criminal immigration attorney can offer you advice on the possibility of receiving some form of post-conviction relief. This can mean that your previous conviction will not count against you for immigration purposes.

Some of the most common forms of post-conviction relief are:

• • Reduction of a felony to a misdemeanor,
  • Motion to vacate a conviction based on a guilty plea if you were not advised of the immigration consequences of the plea,⁵³
  • Re-sentencing so that your new, lesser sentence does not trigger immigration consequences,
  • Motions for resentencing under Proposition 47 (reducing certain felonies to misdemeanors) and/or Proposition 64 (legalization of recreational marijuana in California), and
  • Motion to vacate a conviction based on a claim that you ”received ineffective assistance of counsel (i.e., bad legal advice).⁵⁴