September 11, 2001 has profoundly impacted the immigrant community. The Department of Justice and the U.S. Congress have passed at least two dozen statutes and federal regulations since September 11 that circumscribe the lives of immigrants.
Immigrants with criminal convictions have become one of the primary concerns of the Department of Justice and the new Department of Homeland Security (DHS). According to DHS, during FY 2002, the then-Immigration and Naturalization Service initiated deportation proceedings for 48 non-citizens who had criminal convictions in Alaska. In Alaska, the Bureau of Immigration and Customs Enforcement, under DHS, has now implemented Operation Deep Freeze, which focuses on the removal of non-citizens with criminal convictions who are outside of the jail and prison system. This initiative prioritizes those convicted of: (1) aggravated felonies; (2) crimes of violence; and (3) other crimes rendering the alien deportable.
What Categories of Immigrants Can Be Deported for Criminal Convictions?
Any person who is not a United States citizen, including lawful permanent residents, can be deported because of a criminal conviction. Lawful permanent residents are immigrants/non-citizens who have been granted permission by the United States government to live and work in the United States for an indefinite period of time. A person must become a lawful permanent resident before becoming a United States citizen. Length of residency in the United States and the existence of close relatives who are U.S. citizens may eventually prevent a non-citizen’s deportation, but it does not prevent the Department of Homeland Security from initiating efforts to permanently remove the individual from the United States.
The Immigration and Nationality Act recognizes three categories of crimes that can place a non-citizen at risk of deportation or prevent a non-citizen from ever becoming a lawful permanent resident.
Aggravated felonies are the most serious crimes and are specifically defined by statute in the Immigration and Nationality Act. Because of the sentence imposed by the state criminal court, some common misdemeanor crimes can be considered aggravated felonies for immigration purposes. These crimes include theft and crimes of violence. For both of these crimes a non-citizen can be placed in deportation proceedings and deported from the United States, if the person is sentenced to more than one-year imprisonment, including any suspended time. A “crime of violence” is a term vaguely defined by the United States Code and could include convictions for assault in the fourth degree and felony driving under the influence.
Crimes of moral turpitude are the second category of crimes that can impact a non-citizen’s ability to remain in the United States. Federal circuit court decisions and the Board of Immigration Appeals define these crimes. Generally, a crime of moral turpitude is defined as a crime that encompasses a base or vile act. Although the case law interpreting the term is not entirely uniform, the following types of crimes have been held to involve moral turpitude:
- crimes (felonies or misdemeanors) in which either an intent to defraud or an intent to steal is an element;
- crimes (felonies or misdemeanors) in which there is an element of intentional or reckless infliction of harm to persons or property;
- felonies, and some misdemeanors, in which malice is an element;
- sex offenses, in which some “lewd” intent is an element.
Thus, murder, rape, voluntary manslaughter, robbery, burglary, theft, arson, aggravated forms of assault, forgery, prostitution and shoplifting have all been consistently held to involve moral turpitude.
A third category of crimes specifically listed in the Immigration and Nationality Act may either trigger deportation or prevent a non-citizen from attaining lawful permanent resident status. Crimes included in this category include violations of any law relating to a controlled substance, domestic violence convictions, judicial determinations of protective order violations and convictions under any law of purchasing, selling, using or possessing a firearm or destructive device.
Impact of Crimes on Non-citizens
Automatic removal from the United States is not the only immigration consequence to a criminal conviction. For example, if deported for an aggravated felony conviction, a non-citizen may be permanently barred from returning to the United States, regardless of the length of residency or the fact that the non-citizen has U.S. citizen family members, including a spouse and children. In addition, all non-citizens must prove that they are persons of good moral character when they are applying for asylum, lawful permanent residency or United States citizenship. Crimes such as driving under the influence will be considered a negative discretionary factor that can impact a non-citizen’s ability to prove good moral character and thus attain lawful permanent residency or become a naturalized citizen.
Sentences are often the most important factor in determining the immigration consequences for a non-citizen defendant. Section 101(a)(48)(B) of the Immigration and Nationality Act defines a sentence: “any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by the court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” Consequently, the Department of Homeland Security will analyze the actual sentence imposed—regardless of any time suspended—to determine whether to initiate deportation proceedings.
Deportation proceedings are civil in nature. Non-citizens have a statutory right to counsel but not at government expense. The Department of Homeland Security begins the deportation process by issuing a “Notice To Appear” to the non-citizen. If the “Notice to Appear” is issued because of criminal violations, the Department of Homeland Security can issue the charging document while criminal charges are pending, after the non-citizen has been convicted, or years after the non-citizen has served his or her criminal sentence. Criminal convictions rarely disappear from a non-citizen’s criminal record, even if the conviction has been vacated or expunged.
Immigration Remedies to Prevent Deportation
Very few immigration remedies exist for non-citizens convicted of crimes. There are almost no legal avenues that prevent the deportation of non-citizens’ convicted of an aggravated felony or a controlled substance violation. For these crimes, length of residency in the United States or the existence of spouses, children or parents with U.S. citizenship will not prevent a non-citizen’s deportation. For non-citizens convicted of crimes of moral turpitude and domestic violence offenses, limited immigration remedies exist that may prevent deportation. The viability of these immigration remedies depends on the immigration status of the non-citizen, length of residence in the U.S. and the existence of relatives with citizenship or lawful permanent residency.
Foreign migration to Alaska is increasing. According to the U.S. Census Bureau, 12.5 percent of Alaska’s population growth during the decade beginning in 1990 was due to foreign migration. According to figures published by the Alaska Conservation Foundation, during the next 25 years, Alaska is projected to have the highest foreign migration from Asia and the 11th highest migration from Latin America in the United States. Given these statistics, it is highly probable that increased numbers of immigrants will be accused of crimes. For those working within the criminal justice system, understanding the impact of criminal convictions on non-citizens may prevent the permanent separation of United States citizen children from their non-citizen parent or the forced return of a refugee to a country where there is a threat of persecution or torture.
Robin Bronen is Program Director of the Immigration and Refugee Services Program, Catholic Social Services.