Being an immigrant in the United States is more difficult now than ever in our 232 years since signing the declaration of independence. Not only is it more difficult to get a visa in a US embassy abroad because of the just-say-no mentality of the consular officers, but once an immigrant has made it to our shores the requirements for removing them are becoming easier and easier for the Department of Homeland Security to meet.

I'd like to discuss the immigration consequences of criminal convictions as they are usually more severe than whatever criminal punishment was meted out. Unfortunately, many clients come to me already with a conviction on their record. Invariably, they downplay the conviction by telling me that it was such a long time ago or that the case is closed because they paid the fine or served a few days in jail. Since the events of Oklahoma City bombing (which ironically involved no immigrants at all) and then 9/11, the list of crimes defined as “aggravated felonies” has grown to include smaller and smaller offenses.

So what is an aggravated felony? Well, for starters it doesn't have to be a felony at all. People can be convicted of misdemeanors in criminal court and then have those misdemeanors be the cause of their deportation under the “aggravated felony” classification. It is vitally important to understand the immigration consequences of each and every plea agreement a non-citizen enters into before actually making it. Sometimes it turns out that a public defender or an attorney who exclusively practices criminal law will do their job effectively an unknowingly subject their legal-permanent-resident client to deportation. Another important point to remember is that it does not matter how long someone has been residing in the United States as a resident or when they were convicted, because aggravated felonies are retroactive forever. I recently had a client come into my office with a 1985 conviction for cocaine possession. The client had been a resident for well over 20 years and wanted to finally become a United States citizen. I explained that first we had to deal with her conviction even though it happened over two decades ago.

Another problem area concerning criminal convictions for residents are when they are convicted of “crimes involving moral turpitude” or CIMTs for short. It is less clear what is and is not a CIMT as compared to what is and is not an aggravated felony, because there is no clear cut definition. Usually any type of fraud offense when the person knew what they were doing will qualify as a CIMT (for example: knowingly passing a bad check, or knowingly using a stolen credit card.) When dealing with a CIMT, there is a key distinction from aggravated felonies which legal permanent residents need to know about: a conviction of a single CIMT within the first 5 years of admission to the United States and is punishable by at least one year of imprisonment. If it is beyond the first 5 years, then it will take two convictions of CIMTs (at any time) in order to trigger deportation for the resident. So if a resident has been here for 7 years and pleads to knowingly passing one bad check, the resident won't have to fear deportation, but if there are several charges which each require their own plea agreement and there are at least two convictions classifiable as CIMTS, then the resident will find themselves in deportation proceedings even if their criminal attorney arranges it that no time whatsoever is spent in prison. This is very important, so let me put it in other words: 2 or more convictions of CIMT-offenses will trigger deportation for a resident who has been here for longer than 5 years regardless of time spent (if any) in jail, and one conviction of a CIMT offense will deport a resident of less than 5 years if the conviction carried a maximum sentence of one year or more. It might be noteworthy here to remember that here in Florida, every single cocaine-related conviction has a punishment of at least one year which makes it the drug that deports many non-citizens since the criminal judge isn't allowed by law to sentence the person to less than one year.

To conclude, defending criminal immigrants is extremely tricky. Criminal law and immigration law are two vastly different fields which intertwine now more than ever. Even with President-Elect Obama saying that he will reform our broken immigration system, a non-citizen always has to be twice as cautious when arrested because of the very real possibility of appearing before a criminal judge, then an immigration judge.