Can an Immigrant Fight Deportation After a Conviction?

Can an Immigrant Fight Deportation After a Conviction?

Immigrants convicted of certain crimes may face deportation proceedings, but in many cases they still have legal options to try to remain in the United States. An experienced immigration attorney can help analyze the case and identify possible defenses against deportation.

Grounds for Deportation

The main categories of crimes that can lead to deportation are:

  • Aggravated felonies – Murder, rape, sexual abuse of a minor, illicit trafficking in firearms or destructive devices, and crimes of violence with a term of imprisonment of at least one year are some examples. Conviction of an aggravated felony at any time makes an immigrant deportable.
  • Crimes involving moral turpitude – Fraud crimes, theft offenses, and crimes committed with malicious intent fall into this category. A single conviction for a crime involving moral turpitude committed within five years of admission makes an immigrant deportable.
  • Controlled substance violations – Most drug-related offenses except for possession of 30 grams or less of marijuana for personal use make an immigrant deportable.

In addition to the criminal grounds above, an immigrant can also face deportation for immigration violations like entering the country illegally, violating the conditions of their visa, or for becoming a “public charge.”

Fighting Deportation in Immigration Court

If U.S. Immigration and Customs Enforcement (ICE) initiates deportation proceedings, an immigrant still has due process rights. They can fight their case in immigration court and argue against their removal from the United States.

Some possible defenses include:

  • Cancellation of removal – Lawful permanent residents with at least 5 years of residence and other immigrants with at least 10 years may qualify. Factors like length of residence, family ties, and hardship play a role.
  • Asylum – If the immigrant faces persecution in their home country, they may qualify for asylum as a defense against deportation.
  • Withholding of removal – Even if asylum is denied, an immigrant can request withholding of removal if they establish clear probability of persecution in their home country.
  • Convention Against Torture relief – If the immigrant can establish it’s more likely than not they would be tortured in their home country, they may qualify for protection under CAT.

Certain criminal convictions can bar eligibility for these forms of relief. An attorney can provide case-specific advice after reviewing the immigrant’s full criminal and immigration history.

Post-Conviction Relief

For immigrants with convictions that make deportation virtually mandatory, vacating the conviction through post-conviction relief may be the only option. Common post-conviction motions include:

  • Writs of coram nobis – Allows the court to reconsider a conviction when there is new information showing a fundamental error that likely would have changed the outcome.
  • Writs of audita querela – Allows the court to reopen a criminal case due to new facts or legal issues not available at the time of conviction.
  • Motions to vacate – Allows reopening a case when there was a substantive or procedural defect in the underlying criminal proceedings.

If a post-conviction motion succeeds in vacating a conviction, the immigrant could then seek cancellation of removal or other relief in immigration court without that conviction standing in the way.

Waivers for Certain Criminal Grounds

For some criminal grounds of deportability, an immigrant can apply for a discretionary waiver if they meet other eligibility criteria. Some examples include:

  • 212(h) waiver for crimes involving moral turpitude
  • 212(c) waiver for certain drug offenses and crimes involving moral turpitude
  • 237(a)(1)(H) waiver for crimes of moral turpitude

However, immigrants need to take care regarding these waivers – while they provide relief from deportability, they typically require admitting to the criminal conduct. This admission could still count as a “conviction” for immigration purposes and cause other problems.

Conclusion

While any criminal conviction puts an immigrant at risk of deportation, options may still exist to fight removal depending on the specifics of the case. Consulting an experienced immigration attorney is essential to understand whether defenses, waivers, or post-conviction relief could halt a deportation order.

Useful references: