Federal Deportable Offenses: How to Avoid Being Deported

If you are not a citizen of the United States, and you are convicted of a deportable offense, you stand more to lose than someone born in this country. In addition to any criminal penalties you may suffer as a result of certain convictions, you could be stripped of your legal U.S. status (if you are here legally) and deported back to your original country.

If you are an immigrant in the United States and you are facing criminal charges, speaking to a criminal defense attorney from Wallin & Klarich experienced in defending those accused of deportable offenses is your best chance to avoid the life-altering consequence of being removed from this country. We can explain all of the options available to you and help you protect all of your U.S. rights.

Who can be deported?

You can be deported if you were born in a foreign country, but you are United States legal alien and permitted to live in this country for a specified period of time including:

• “Green Card” holders (Legal Permanent Residents or “LPRs”);
• Visa holders, such as individuals under visitor, student, or employment visas; and
• Refugees or asylum seekers.

You are in the country illegally, because:

• You are undocumented; or
• You overstayed your visa.

What crimes qualify as deportable offenses in the United States?

An alien may be deported and/or deemed inadmissible upon a conviction for dozens of violent and nonviolent offenses, such as:

• Crimes of Moral Turpitude, which means:

• The crime is punishable by one year or more in jail or prison, whether you serve any time or not; and

• The crime was allegedly committed within five years of being admitted into the United States; or

• Two or more crimes of moral turpitude were committed out of different events regardless of when they allegedly occurred.

• Aggravated felonies, including but not limited to:
  • Murder (PC 187);
  • Rape (PC 261);
  • Sexual abuse of a minor (PC 288, 288(a), 288(b), 288(c), 288a, 647.6, among others);
  • Child pornography (PC 311);
  • Certain theft crimes, including burglary (PC 459) and receiving stolen property (PC 496) if punishable by at least one year in jail;

• Certain fraud crimes;
• Drug crimes, other than possession of 30 grams or less of marijuana for personal use;
• Firearm crimes;
• Domestic violence crimes including:
  • Corporal injury upon a spouse (PC 273.5);
  • Child abuse (PC 11164-11174.3);
  • Child neglect or abandonment (PC 270);
  • Domestic battery (PC 243(e)(1));
  • Elder abuse (PC 368).

• Trafficking crimes, including but not limited to:
  • Prostitution (PC 647(b));
  • Pimping (PC 266h); and
  • Pandering (PC 266i).

• Money laundering crimes (18 U.S.C. 1956 and 1957); and
• Failure to register as a sex offender (PC 290).

You have the right to know if your charge is a deportable offense before you are convicted

In 2010, The U.S. Supreme Court decided a case called Padilla v. Kentucky 559 U.S. 356 (2010) which is of significant importance to any noncitizen facing conviction for a deportable offense.

The defendant, Jose Padilla, was originally born in Honduras in 1950 but later immigrated to the United States and had had been a lawful permanent U.S. resident for over 40 years. He served this country as a member of the U.S. Armed Forces during the Vietnam War and receiving an honorable discharge. In 2001, Padilla was arrested in Kentucky for transporting large quantities of marijuana.

Relying on incorrect advice from his defense attorney that he “did not have to worry about immigration status because he had been in the country so long,” Padilla agreed to a plea bargain, virtually guaranteeing his deportation. He sought post-conviction relief in 2004. He alleged that he would have insisted on going to trial if he had not received incorrect advice from his attorney.

The Supreme Court ruled that criminal defense attorneys must advise non-citizen clients about the consequences of a guilty plea to a deportable offense. The case extended the Supreme Court’s prior decisions on criminal defendants’ Sixth Amendment right to effective counsel when facing immigration consequences. You are entitled to know in advance of a guilty plea or verdict:

• Whether your conviction will result in deportation where the law is clear;
• Whether your conviction may result in deportation where the law is uncertain; and
• Some advice about deportation – your attorney cannot remain silent about immigration. For example, your attorney should refer you to an immigration lawyer if you could face deportation by the federal government.

How can you avoid deportation or inadmission for a removable crime?

The consequences to a deportable offense is often of much greater concern to an alien than any criminal punishment he or she faces.

If you are a noncitizen facing deportation or inadmission after a criminal conviction, options are available to you that may prevent you from being removed from or denied entry into this country.

If your attorney failed to advise you of the possible consequences of a guilty plea to a deportable offense, you may be able have your plea vacated. Contact Wallin & Klarich now if you wish to attempt to have your prior guilty plea withdrawn. Our law firm has successfully had our clients convictions set aside in many of these cases.

Cancellation of Removal and Waiver of Inadmissiablity

You may also qualify for what is known as a “waiver” that may allow you to remain in, or be admitted into the United States. There are two types of waivers: Cancellation of Removal and Waiver of Inadmissibility.

A Cancellation of Removal is a waiver that allows you to remain in the country, depending on the following:

• How long you have been in the country; and/or
• How long you have maintained Permanent Legal Residence status.

A Waiver of Inadmissibility applies to non-permanent residents who have a criminal conviction barring them from being admitted into the United States. This type of waiver differs from a Cancellation of Removal waiver in the following ways:

• No residency requirement is necessary; but
• A conviction for possession of a controlled substance cannot be waived, unless the conviction was for 30 grams or less of marijuana.

A Waiver of Inadmissibility is not required for a single 90-day misdemeanor conviction.

However, a conviction for an aggravated felony is an absolute bar to a Cancellation of Removal waiver and a virtual bar to a Waiver of Inadmissibility (8 U.S.C. § 1182(h); INA section 212(h).)

Hardship to your U.S. relatives – your spouse or children, for example – may also be factor allowing you to avoid deportation. This type of waiver is most commonly used today for aliens convicted of non-aggravated felonies.

Are you facing deportation for a criminal conviction? Wallin & Klarich can help you.

If you or someone you love is a noncitizen and has been charged with a deportable offense, your best chance to avoid criminal penalties and possible deportation is to contact the law firm of Wallin & Klarich immediately. The attorneys at Wallin & Klarich have over 40 years of experience successfully representing our clients facing charges for a deportable offense.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, Wallin & Klarich has attorneys knowledgeable in the potential consequences of a deportable offense. We will give you the personal attention you deserve so that your constitutional rights are protected. We will spend the time and effort necessary to develop a strategy that gets you the best result possible in order to help you avoid being deported.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation We will get through this together.