Federal Immigration Removal Defense: Criminal Consequences.

The Immigration and Nationality Act (INA) is not a single regime; rather, it consists of four (at least) distinct regulatory frameworks: (i) grounds for deportability, (ii) grounds for inadmissibility, (iii) grounds for detention and bond authority, and (iv) grounds for discretionary relief. We will thoroughly analyze the consequences of the federal government’s allegations across each of these immigration areas.

These Immigration and Nationality Act (INA) regimes overlap with, but are separate from, the INA’s removal procedures. Here, we distinguish between a case that is still in the pre-petition stage (prior to the filing of a Notice to Appear initiating removal proceedings), versus a case that has moved to the removal proceedings stage in immigration court. We similarly distinguish between these proceedings and the separate criminal case that is (or may be) pending in federal district court.

We also distinguish between ICE’s authority to detain a noncitizen during its removal proceedings and the authority of the federal district court to hold an individual in its criminal custody. Understanding this distinction is key in making informed decisions about a federal criminal case’s defense strategy.

An immigration detainer is a separate procedural step; it neither establishes removability, nor does it (on its own) present an obligation for a court to issue a removal order.

Finally, we understand that criminal bail and immigration bonds are separate procedures, each with its own unique legal standards. We address criminal bail and immigration bond issues under our distinct representation for each of these proceedings.

When Does an Arrest Become an Immigration Conviction?

An individual’s arrest does not necessarily trigger immigration consequences. In immigration law, an “immigration conviction” is not the same as a “criminal conviction,” and the criteria for what constitutes a conviction are defined in 8 U.S.C. §1101(a)(48). Under 8 U.S.C. §1101(a)(48)(A), “The term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”

This criminal law provision is so broad that it includes a “conviction” in several scenarios that would not generally result in a “conviction” in a criminal case. For example:

• A suspended sentence does not necessarily relieve an individual from immigration consequences.
• Deferred adjudication can, and often does, qualify as an immigration conviction when accompanied by a guilty plea and any imposition of a penalty.
• Even if a criminal record is expunged, a dismissal is not necessarily fatal to immigration-law-based allegations. A dismissal or acquittal usually means an immigration conviction cannot be based on the criminal charges themselves, but not that this would completely remove any relevant information that may affect eligibility for remaining in the country.

As a result, any individual facing removal needs a detailed immigration defense that is tailor-made for their specific set of circumstances.

How Do Offense Elements Decide Removal or Admission?

Immigration law divides criminal consequences based on whether an individual has already been admitted to the United States. Under the INA, admitted noncitizens can become deportable upon commission of certain crimes, as listed in INA §237(a)(2). Conversely, there are criminal grounds that can make those who have not yet been admitted into the U.S. ineligible for admission under INA §212(a)(2).

Some of these are, in turn, grouped together. For instance, “aggravated felonies” have a specific meaning in federal immigration law, and this meaning is defined in the INA itself in §101(a)(43), and not based on whether a state’s legal system applies the label “felony” to a specific offense or not.

Among the other grounds for removal for those who have been admitted to the United States are:

• Controlled substance offense under INA §237(a)(2)(B)(i), which requires: - One or more drug-related convictions, or, - The offense of possession of a controlled substance (subject to certain exceptions in certain circumstances);
• Firearms offense under INA §237(a)(2)(C), which requires: - One or more firearms convictions, or, - The offense of possessing a firearm, regardless of any intent requirement;
• And crimes involving moral turpitude or any of several other grounds listed in the INA.

We will carefully review each of these potential grounds and work to protect our clients wherever possible by both attacking the evidence that supports the grounds for removal and by defending against their admissibility in criminal court.

Why Can Illegal Entry Lead to a Federal Case?

While the federal government often pursues deportation against individuals accused of attempting illegal entry, this also carries the possibility of criminal prosecution. Illegal entry is criminalized by federal law in 8 U.S.C. §1325 (in certain circumstances), and illegal reentry into the United States after a removal is criminalized by 8 U.S.C. §1326 (with specific statutory requirements regarding prior removals).

Specifically, if an individual previously resided in the United States and then departed the U.S. either by removal, voluntary departure, or had otherwise been deported, if they then illegally returned to the U.S., this would satisfy the basic statutory requirements for a §1326 charge. Under §1326, a defendant whose removal was subsequent to a qualifying conviction described in §1326(b) will have significantly increased sentencing exposure, and this will be a key issue when resolving §1326 cases for our clients.

If the federal government is looking to hold someone accountable for human smuggling or trafficking, these offenses can also be prosecuted under criminal law. Section 1324 of title 8 prohibits bringing in, transporting, harboring, or encouraging an alien to enter or remain in the United States unlawfully; it does not prohibit bringing in a controlled substance. Section 1324 also covers multiple other offenses related to encouraging or assisting people who are under a prohibition against entering the U.S. to enter the country.

Are Parole and Bond Discretionary?

These are all very important questions that are answered differently according to an individual’s immigration circumstances. Immigration authorities have broad discretion in cases that involve parole and bonds; and they must take into account a variety of factors when making their determinations. With that being said, the government is not entitled to unlimited discretion and there are legal protections that individuals can invoke if the government makes an abuse of discretion.

Which Defenses and Review Options Survive a Criminal Case?

For individuals who are not lawfully admitted to the United States and are not lawful permanent residents (LPRs), the law provides one form of relief, Non-Lawful Permanent Resident (Non-LPR) Cancellation. This form of relief allows non-LPRs to seek cancellation of removal if they can satisfy a four-pronged statutory test: they must satisfy the requirements of 8 U.S.C. §1229b(b)(1): at least ten years of continuous physical presence, good moral character during that period, no conviction of a disqualifying offense, and exceptional and extremely unusual hardship to a qualifying U.S.-citizen or lawful-permanent-resident spouse, parent, or child

Notably, an individual’s criminal conviction history must not include a conviction for an offense described in 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3), subject to the statute’s exceptions. An aggravated-felony conviction may preclude cancellation depending on the offense and the applicable statutory provisions. While other factors may also make a Non-LPR cancellation option available, the specific requirements of each prong must be carefully examined.

Withholding of removal is another statutory defense and relief option that may remain available even if a person has an aggravated felony conviction, unless the conviction constitutes a particularly serious crime To apply for this relief, an applicant must prove a “clear probability” that they will face persecution upon removal. In determining eligibility, immigration courts must consider whether the applicant is a member of a protected group or class. This involves an in-depth examination of the applicant’s background and the risks involved with removal.

Ultimately, an individual’s background and criminal record determine the defenses that are available. At Spodek Law Group, we assess each case individually and help our clients make informed decisions.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 888 348 8028.