Deportable Offenses – Crimes That Lead to Deportation

The terms “deportable crimes” or “deportable offenses” refer to crimes in which a conviction can lead to negative immigration consequences for defendants who are not United States citizens. These immigration consequences may include

1. deportation and removal,
2. denial of the right to re-enter the United States, and
3. denial of the ability to naturalize as a citizen of the United States.

If you are convicted of one of these so-called “deportable crimes,” and you are not a United States citizen, then the Department of Homeland Security (“DHS”) may deport you – regardless of how long you have lived in the United States or how well-established your life is here.²

There are five major categories of “deportable crimes”:

Deportable crimes	Examples
1. Crimes of moral turpitude	murder burglary robbery perjury aggravated assault
2. Aggravated felonies	child pornography human trafficking kidnapping lewd acts with a minor child rape
3. Controlled substances (drug) offenses	sale of a controlled substance possession for sale of a controlled substance trafficking of a controlled substance
4. Firearms offenses	Possessing, purchasing, selling, or exchanging a gun in violation of federal law
5. Domestic violence crimes	felony sexual battery corporal injury on a spouse or cohabitant assault false imprisonment (a felony accomplished by violence or menace)3

Unfortunately, far too many immigrants facing criminal charges are represented by criminal defense attorneys who do not understand the immigration consequences of a conviction for a deportable crime.

As a result, these attorneys may not fight the charge as aggressively as they should – and might even advise the defendant to plead guilty or “no contest.”

Example: Green card-holder Javier is charged with possession of a controlled substance for sale.⁴ His criminal defense attorney – who does not understand immigration law – advises him to plead guilty instead to possession of a controlled substance for personal use because it carries less jail.⁵ Though like most California drug crimes, possession is still a deportable offense.⁶  If Javier’s attorney had understood criminal immigration law, he probably would have advised him to fight the more serious charge instead.

In order to help you better understand which crimes can lead to deportation, our California criminal and immigration attorneys will address the following:

• 1. Who can be deported due to criminal convictions?
• 2. What is a deportable crime of moral turpitude?
• 3. What is a deportable aggravated felony?
• 4. Can I be deported if I am convicted of a drug crime?
• 5. Can I be deported if I am convicted of a firearms offense?
• 6. Can I be deported for a domestic violence conviction?
• 7. Deportable crimes and related topics
  • 7.1. Can I be deported for drug addiction?
  • 7.2. Can I use post-conviction relief to avoid deportation for a criminal conviction?
  • 7.3. What is cancellation of removal?

If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.

1. Who can be deported due to 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.⁷

It does not matter

• how long you have lived in the US,
• how well-established your life is here (e.g., homeownership, job, business ownership), or
• whether you have a dependent child who is a US citizen.⁹

Similarly, it does not matter what your immigration status is. All non-citizens are subject to the deportability sections of the INA,¹⁰ whether they are

• legal permanent residents (“green card” holders),
• visa holders (student visas, work visas, etc.), or
• refugees who have been granted asylum.

Example: Jesus is admitted to the US as a lawful permanent resident (“green card” holder) when he is only two years old and lives here continuously from then on. He marries an American citizen but never becomes a citizen himself. After being convicted of several deportable offenses, Jesus is deported. It does not matter that he’s lived virtually his entire life in the U.S. and has strong ties here.¹¹

Deportation vs. inadmissibility

Deportation is not the only thing non-citizens have to worry about if they are convicted of a crime. Inadmissibility is another potential immigration consequence of a criminal conviction.

If you are a non-citizen and convicted of certain “inadmissible crimes,”¹² you may not be allowed to:

1. Re-enter the country after leaving,
2. Become a U.S. citizen, or
3. Apply for permanent residence (a green card) or an “adjustment of status” — that is, a change from illegal to legal immigration status.¹³

But – in contrast to a conviction for one of the deportable crimes we discuss below – a conviction for an inadmissible crime will not necessarily lead to you being removed from the country against your will.¹⁴

2. What is a deportable crime of moral turpitude?

Section 237 of the INA lists the crimes for which you can be deported.¹⁵

The first major category of deportable crime consists of so-called “crimes of moral turpitude” (also known as “crimes involving moral turpitude” or “CIMTs”).¹⁶

The INA does not define what a “crime of moral turpitude” is.¹⁷ As a result, California and federal courts have had to come up with their own definition.¹⁸

Definition of moral turpitude

Courts have defined moral turpitude as a corruption of the social basic duties that everyone owes to other people and to society as a whole.¹⁹ California courts have decided that the following are crimes of moral turpitude (and hence potentially deportable crimes):

• Arson,²⁰
• Assault with a deadly weapon,²¹
• Burglary,²²
• Cultivation of marijuana,²³
• Forgery,²⁴
• Grand theft²⁵ and grand theft auto,²⁶
• Kidnapping,²⁷
• Murder,²⁸
• Possession for sale of controlled substances,²⁹
• Rape,³⁰
• Receiving stolen property,³¹ and
• Repeated felony convictions for driving under the influence (DUI).³²

California courts have decided that the following crimes are not crimes involving moral turpitude and thus do not have the same immigration consequences (such as deportability):

• Assault (not Involving a deadly weapon),³³
• Child endangerment,³⁴
• Indecent exposure,³⁵ and
• Involuntary manslaughter.³⁶

Crimes of moral turpitude and deportability

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 prison sentence of one (1) year or longer may be imposed, within five (5) years of being admitted to the U.S., OR
2. Are convicted of two (2) or more crimes of moral turpitude that did not arise out of a single criminal scheme.³⁷

Example: Sophia has been a lawful permanent resident of the U.S. for ten years. After getting convicted of grand theft auto, she receives a misdemeanor sentence and serves some time in county jail.³⁸ Even though this is a crime of moral turpitude, Sophia is not deportable. She’s been convicted of only one crime of moral turpitude–and the conviction occurred more than five years after she was admitted to the U.S.

BUT

Example: Let’s say that, a few years later, Sophia is arrested for burglary. If she is convicted, she will be deportable–because this would be her second conviction of a crime of moral turpitude, and it is not part of the same criminal scheme as her grand theft auto conviction.

3. What is a deportable aggravated felony?

Another category of deportable crime is the so-called “aggravated felony.” ³⁹ This means that a conviction for certain felonies can lead to you being removed from this country.

In contrast to crimes moral of turpitude (which have to be identified as such by courts) the phrase “aggravated felony” has a specific definition in the INA.⁴⁰ Some of the most important aggravated felonies under criminal immigration law are:

1. Murder,
2. Rape,
3. Sexual abuse of a minor,
4. Drug trafficking,
5. Illicit trafficking in firearms,
6. Theft crimes for which the sentence is more than one (1) year in prison,
7. Crimes related to the operation or supervision of a prostitution business (such as pimping), and
8. Fraud crimes that swindle the victim out of at least ten thousand dollars ($10,000).⁴¹

You may notice that there is some overlap between the list of crimes of moral turpitude and the list of aggravated felonies. For example, murder and rape are on both lists.⁴²

Example: Ahmed moved to the United States as a refugee eight years ago. He is arrested and charged with rape-which is a crime of moral turpitude AND an aggravated felony. Normally, a single conviction of a crime of moral turpitude that occurred 8 years after he entered the U.S. would not make Ahmed deportable. But rape is also an aggravated felony. Therefore, if Ahmed is convicted, he will be deported.⁴³

4. Can I be deported if I am convicted of a drug crime?

Another major category of deportable crimes is controlled substance offenses. Under the INA, almost all drug crimes can lead to deportation.⁴⁴

This includes both serious and not-so-serious drug crimes. You may be deported if you are convicted of

• Drug manufacturing,
• Drug transport / sale,
• Possession of drugs for sale, or
• Simple possession.⁴⁵

There is one exception. You may not be deported if your drug crime conviction is for a single charge of simple possession of marijuana – as long as the amount possessed is thirty (30) grams (the equivalent of just over one ounce) or less.⁴⁶ (In 2016, Proposition 64 legalized simple possession of small amounts of marijuana in California, so this exception will not have much impact going forward.)

A few years back, almost one-third of the non-citizens who were deported for deportable criminal convictions were deported because of drug offenses.⁴⁷ In 2009, almost 40,000 immigrants were deported after a drug conviction.⁴⁸

5. Can I be deported if I am convicted of a firearms offense?

Another group of deportable crimes is offenses related to firearms or destructive devices.⁴⁹ Specifically, you can be deported if you are convicted of illegally

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

any firearm.⁵⁰

In practice, however, you are only likely to be deported if you are found guilty of committing a federal firearm offense. A conviction for violating California gun laws usually only leads to deportation if it involves an assault weapon or it is used in committing another crime, for instance, assault with a firearm (which is also a crime of moral turpitude⁵¹).

6. Can I be deported for a domestic violence conviction?

The last major category of deportable crimes is violations of domestic violence laws.⁵²

You need only a single conviction of a domestic violence offense to be deportable.⁵³ For purposes of the INA, a “domestic violence offense” means not just a classic domestic abuse crime like domestic battery on a spouse or partner–but also child abuse and even violating a restraining order.⁵⁴

Example: Rajiv is living in the U.S. on a student visa when his girlfriend obtains a restraining order against him. Unfamiliar with the law, Rajiv contacts his girlfriend repeatedly. If he is convicted of violating the restraining order, he could be deported.

7. Deportable crimes and related topics

7.1. Can I be deported for drug addiction?

Yes, the government can deport you for being addicted to drugs – even if you are never convicted of a crime related to this! ⁵⁵

Specifically, section 212(a)(2)(B) of the INA provides that you may be deported if you either

• currently are a drug addict or abuser, or
• have been a drug abuser or addict since you were admitted to the U.S.⁵⁶

7.2. Can I use post-conviction relief to avoid deportation for a criminal conviction?

The answer may be yes. Some of the most common forms of post-conviction relief are:

1. Reduction of a felony to a misdemeanor,
2. A motion to vacate a conviction based on a guilty plea if you were not advised of the immigration consequences of the plea,⁵⁷
3. Re-sentencing so that your new, lesser sentence does not trigger immigration consequences, and
4. A motion to vacate a conviction based on a claim that you received ineffective assistance of counsel (i.e., bad legal advice).⁵⁸

7.3. What is cancellation of removal?

Even if you are unable to obtain any form of post-conviction relief, you may still be eligible for something called “cancellation of removal.”⁵⁹ An application for cancellation of removal would be dealt with in US Immigration Court, not in a criminal court.

You may be eligible for cancellation of removal only if you are a lawful permanent resident–that is, a “green card” holder–and you meet all of the following requirements:

1. You have had your green card for at least five (5) years,
2. You have lived in the U.S. continuously, with some legal immigration status, for at least seven (7) years, AND
3. You have not been convicted of an aggravated felony.⁶⁰