How can a criminal conviction record harm you? Part IV

Posted by Chris Morales on Fri, Nov 22, 2013 @ 10:50 AM

 The Morales Law Firm would like to thank NOLO Press Self - Help Law for sharing this information with us.

7. Immigration Consequences

a. Crimes of “Moral Turpitude”

Many offenses fall into the definition of a “moral turpitude” crime, which is a crime perpetrated “evil intent.” For example, most crimes that involve fraud or an intent to steal qualify as crimes of moral turpitude. An offense involving the intent to cause great bodily injury, such as assault or first-degree murder, and crimes with lewd intent, such as child molestation and rape, also are included. If you are convicted of a moral turpitude crime for which you could have been sentenced or confined in prison for one year or longer, and you have been in the U.S. for less than five years, you can be deported.. (Immigration and Nationality Act (“INA”) §241 (a)(2)(A)(i) .) If you are convicted of two crimes of moral turpitude, you are deported regardless of the potential sentences for the crimes or the length of time you have been in the U.S. (INA §241 (a)(2)(A0(ii).)

You can avoid deportation or exclusion for a conviction of a moral turpitude crime by having your conviction dismissed. Also, if the matter was handled in juvenile court and resulted in a juvenile adjudication, it does not count as criminal conviction and will not result in deportation or exclusion.

Even if you have an adult moral turpitude to conviction that has not been dismissed, it is possible to avoid immigration consequences by applying to the Attorney General to “cancel” removal as an excludable or deportable permanent resident. You may apply only if you have continuously resided in the U.S. for seven years, have been a permanent resident for at least five years, and have not been convicted of an aggravated felony or two crimes of moral turpitude. (INA §212 (c) .) The Attorney General can also “cancel” removal of an excludable or deportable permanent resident who has been continuously present in the U.S. for a period of seven years, has been of good moral character, has not been convicted of certain types of crimes, and can establish that his or her removal would result in unusual hardship to his or her family. (INA §212 (h).) The Attorney General has discretion to decide whether to grant the application. (“INA” §212 (c), 212(h).

b. Multiple Criminal Convictions

Two or more criminal convictions for any type of crime other than purely political offenses, even if within the same trial or plea, each of which results in a prison sentence of five years or more, will lead to exclusion if you leave the U.S. and try to come back, but will not necessarily lead to deportation. (Title 8 United States Code §1182 (a)(2)(b).)

c. Drug Use

If the INS or an official at a U.S. consulate or embassy has reason to believe that you are a “trafficker in a controlled substance” or a drug abuser, you may be excluded from the U.S., even if you have no arrests or convictions for trafficking or using illegal drugs.

A conviction for almost any controlled substances crime will result in both exclusion and deportation. The only exception is for a first conviction of simple possession of 30 grams or less of marijuana, which will make you excludable but not deportable. The I.N.S. will not consider any juvenile convictions for drug use when determining deportability or excludability.

There is some relief from exclusion and deportation for those who fit into the following categories:

If you were a first-time offender convicted of a simple possession crime and you qualify to have your conviction dismissed

If you have been lawful permanent resident for at least five years who can establish presence in the U.S. For at least seven years before deportation or removal proceedings begin, and your drug conviction does not count as an aggravated felony, you can apply for “cancellation of removal” from the Attorney General.

If your case resulted in the successful completion of pre-trial diversion, it will not result in deportation or exclusion.

d. Guns or Destructive Devices

A conviction for any crime involving possession, brandishing, firing, selling or trafficking in any type of firearm or destructive device can have severe immigration effects. Such convictions will result in deportation but not exclusion, and, in contrast with moral turpitude and controlled substance convictions, you cannot apply for relief from deportation if convicted of this type of offense. However, you may be able to apply for a “cancellation of removal” with the Attorney General in the future.

If you have a juvenile court adjudication involving a firearm or destructive device, it will not have immigration consequences since a juvenile court adjudication does not count as a conviction.

e. Conviction for an Aggravated Felony

The category of aggravated felonies covers a wide variety of crimes , including but not limited to: murder, rape, and sexual abuse of a minor, illicit trafficking in controlled substances, firearms, destructive devices, or explosive materials, money laundering, and certain fraud, prostitution, tax evasion, gambling and alien smuggling offenses. The 1996 Federal immigration legislation also expanded the definition of aggravated felonies to include any crime of violence, theft, or burglary for which a sentence of at least one year is imposed. “INA” §101 (a)(43).)

A conviction for any crime classified as an aggravated felony will result in deportation and exclusion. If you are convicted of an aggravated felony, you are deportable and you may not return to the U.S. for twenty years. If you do re-enter after deportation and are apprehended, you can be sentenced to twenty years in federal prison. The Illegal Immigration Reform and Immigration Responsibility Act of 1966 eliminated relief from deportation where there is a conviction for an aggravated felony. (Title 8 United States Code §1182 (c).)

f. Crimes affecting “Good Moral Character” Requirements

Convictions for two or more gambling offenses, any prostitution related offense, smuggling, or any crime which results in incarceration for at least six months can prevent you from meeting the “good moral character” requirement to become a citizen. Similarly, convictions of this nature may prevent you from suspending a deportation.

8. Chemical Castration
If you have prior conviction for any of the sexual crimes listed below involving a victim under 13 years old, a future conviction for any of these crimes where the victim is under 13 years old will result in a sentence which requires medroxyprogesterone acetate treatment. The treatment begins one week prior to being released and continues until the Department of Corrections demonstrates to the Bureau of Prison Terms that this treatment is no longer necessary. If you voluntarily undergo a permanent surgical alternative to the hormonal chemical treatment, the treatment will not be required.
The crimes covered include: Penal Code §§286 (c) or (d), 288 (b)(1), 288a (b) or (d) & 289(a) or (j).

C. Restraining Orders and Guns

Restraining orders are typically requested when there has been domestic violence in marriages, unmarried cohabitation (both straight and gay), shared living situations and even in disputes between residential neighbors or coworkers.

Most civil restraining orders last for 3 years. The Restraining Order After Hearing used by California courts warns the person being restrained that he or she is prohibited from purchasing, attempting to purchase, or otherwise obtaining a firearm.

Once again thank you NOLO Press Self - Help Law 
By: Attorney Warren Siegel

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Tags: drugs, conviction, trafficking, immigration, crime, firearm, deportation