Criminal Record in Deportation Proceedings: What You Should Know

Deportation proceedings are a daunting prospect for anyone, but when a criminal record is involved, the situation becomes even more complex. Understanding how a criminal record impacts your case and what defense strategies are available is crucial. This guide will walk you through the key points you need to know and highlight the importance of having an experienced immigration lawyer by your side.

Understanding Deportation Proceedings

Deportation proceedings, also known as removal proceedings, are legal processes initiated by the U.S. government to remove a non-citizen from the country. These proceedings are handled by immigration courts, which operate under the Executive Office for Immigration Review (EOIR). The Department of Homeland Security (DHS) typically initiates these proceedings, citing various grounds for deportation, including visa overstays, unlawful entry, or criminal activity.

For individuals with a criminal record, the stakes in deportation proceedings are especially high. Crimes that might seem minor under state law can carry severe immigration consequences, leading to mandatory deportation or severely limiting your options for relief. This is where the expertise of an immigration lawyer becomes invaluable.

The Role of a Criminal Record in Deportation Cases

Criminal records play a significant role in deportation cases, often determining whether an individual will be removed from the United States. The impact of a criminal conviction on your immigration status depends on the nature of the crime, when it was committed, and the exact wording of the law under which you were convicted.

Types of Crimes That Can Trigger Deportation

1. Aggravated Felonies:

   • Aggravated felonies are some of the most serious offenses in the context of immigration law. These include crimes such as drug trafficking, murder, rape, sexual abuse of a minor, and fraud involving a loss of over $10,000. A conviction for an aggravated felony typically results in mandatory deportation with very limited options for relief. Even if you have been in the U.S. for many years or have family ties, these crimes can make you ineligible for most forms of relief from removal.

2. Crimes of Moral Turpitude (CIMT):

   • Crimes of moral turpitude are another category that can lead to deportation. This vague term refers to offenses that are considered morally reprehensible and contrary to the accepted rules of behavior. Examples include theft, fraud, domestic violence, and some types of assault. The classification of a crime as a CIMT often depends on the specific circumstances and the intent behind the crime, which can complicate your case. An experienced immigration lawyer can help determine whether your conviction falls under this category.

3. Other Offenses:

   • While aggravated felonies and CIMTs are the most common triggers for deportation, other lesser offenses can also impact your case. Crimes such as DUIs, drug possession, or even multiple misdemeanors can negatively affect your immigration status. Even if these crimes do not lead to mandatory deportation, they can still be used against you in discretionary decisions made by an immigration judge.

How a Criminal Record Affects Deportation Eligibility

The effect of a criminal record on deportation eligibility varies depending on whether the crime is considered a mandatory or discretionary ground for removal.

1. Mandatory vs. Discretionary Deportation:

   • Certain crimes, like aggravated felonies, lead to mandatory deportation, meaning the immigration judge has little to no discretion in the matter. On the other hand, crimes that fall into the category of CIMTs or lesser offenses might lead to discretionary deportation, where the judge can consider factors like your family ties, length of residence in the U.S., and overall character. This is where legal advocacy by an immigration lawyer is crucial, as they can present a strong case for why you should not be deported.

2. Impact on Immigration Benefits:

   • A criminal record can severely impact your eligibility for various immigration benefits, such as asylum, cancellation of removal, or adjustment of status. For instance, individuals with aggravated felonies are generally barred from obtaining these forms of relief. Even for those convicted of lesser crimes, the path to securing immigration benefits becomes much more complicated. A skilled immigration lawyer can help navigate these challenges and explore all possible avenues for relief.

Defense Strategies Against Deportation Due to a Criminal Record

If you are facing deportation due to a criminal record, it is essential to explore all potential defense strategies. The right legal approach can make the difference between staying in the United States and being removed.

Challenging the Criminal Conviction

1. Post-Conviction Relief:

   • One possible defense strategy is to seek post-conviction relief. This might involve vacating or reducing the conviction, especially if you can prove that your original trial was flawed or that your legal rights were violated. If successful, this can remove the basis for your deportation or at least mitigate its impact. However, this is a complex legal process that requires the expertise of both a criminal defense attorney and an immigration lawyer working together.

2. Appealing the Deportation Order:

   • If you have been ordered deported based on a criminal conviction, you may have the option to appeal the decision. Appeals can be made on various grounds, such as procedural errors during the trial, incorrect application of the law, or new evidence coming to light. An immigration lawyer can guide you through the appeals process, ensuring that your case is presented effectively.

Seeking Relief from Removal

1. Cancellation of Removal:

   • Cancellation of removal is a form of relief available to some individuals who have been in the U.S. for a significant period and have established strong ties to the community. However, a criminal record can complicate this process. To qualify, you must demonstrate that your removal would cause exceptional and extremely unusual hardship to your U.S. citizen or lawful permanent resident family members. An immigration lawyer can help build a compelling case to meet this high standard.

2. Adjustment of Status:

   • Adjustment of status allows certain non-citizens to become lawful permanent residents (green card holders) without having to leave the U.S. However, a criminal record can be a significant barrier. Depending on the nature of the conviction, you may still qualify if you can demonstrate good moral character and meet other eligibility requirements. An immigration lawyer can evaluate your case and determine whether adjustment of status is a viable defense.

3. Asylum or Withholding of Removal:

   • Even with a criminal record, you might still qualify for asylum or withholding of removal if you can prove that you face persecution in your home country based on race, religion, nationality, political opinion, or membership in a particular social group. Certain criminal convictions, especially those considered particularly serious, might disqualify you from asylum, but withholding of removal could still be an option. An immigration lawyer can assess your eligibility and help you prepare a strong application.

Prosecutorial Discretion and Deferred Action

In some cases, requesting prosecutorial discretion or deferred action can prevent deportation. This involves asking the DHS to prioritize other cases and essentially place your deportation on hold. Prosecutorial discretion is often granted based on humanitarian grounds, such as serious medical conditions, family ties in the U.S., or community contributions. An immigration lawyer can help craft a persuasive request for prosecutorial discretion, increasing your chances of staying in the country.

Importance of Legal Representation

Navigating the intersection of criminal and immigration law is notoriously complex. The laws are constantly evolving, and the stakes are incredibly high. Having an experienced immigration lawyer on your side can make all the difference.

Complexity of Immigration Law

Immigration law is one of the most complicated areas of U.S. law, and when criminal convictions are involved, the complexity only increases. The consequences of a criminal record on your immigration status can vary widely depending on the specifics of your case. An immigration lawyer understands these nuances and can guide you through the legal maze, ensuring that you take the right steps to protect your future.

Role of an Immigration Lawyer

An immigration lawyer plays a critical role in defending against deportation. They can help by:

• Evaluating your criminal record and its potential impact on your immigration status.
• Advising on the best defense strategies, whether it’s challenging the conviction, seeking relief from removal, or requesting prosecutorial discretion.
• Representing you in immigration court and during appeals, presenting a compelling case on your behalf.
• Collaborating with criminal defense attorneys to pursue post-conviction relief when necessary.

Whether you are facing deportation or simply concerned about how your criminal record might affect your immigration status, it’s essential to seek legal advice as soon as possible.

Contact Us

Deportation proceedings are a serious matter, and when a criminal record is involved, the challenges multiply. Understanding how your criminal history affects your case and exploring all available defense strategies is crucial to achieving the best possible outcome. With the guidance of an experienced immigration lawyer, you can navigate these challenges and fight for your right to remain in the United States.

If you or a loved one is facing deportation due to a criminal record, don’t wait to seek help. Contact the Alex Martinez Law Firm today for expert legal assistance. Our team is ready to fight for your rights and help you secure the best possible outcome for your case.