Removal based on a criminal conviction
Removal, or deportation, is not limited to those who have entered the country illegally, violent criminals or drug traffickers. All non-citizens, including permanent resident Green Card holders, who are convicted of crimes will be removed from the United States.
Most crimes, regardless of the severity, will lead to removal and repatriation. While aggravated felonies, such as money laundering and drug trafficking, carry harsh consequences in immigration court with absolutely no relief, less severe crimes may offer the possibility to fight for a waiver of deportation. These cases include crimes of moral turpitude (CMT) and, depending on the specifics of the case, relief in immigration court may be available. However, the only way to secure relief from deportation is to have the original conviction vacated, modified or rendered void.
Likelihood of removal
If you are a permanent resident and have committed a crime, you are in danger of being removed. You may not realize you are facing deportation or are the subject of a United States Immigration and Customs Enforcement (ICE) investigation until you enter into the judicial system or have contact with immigration, such as when requesting a change of status, or border inspection, for instance when re-entering the U.S. after traveling to another country. There is no immunity or protection for specific nationalities or those who have been granted asylum. Even those on immigration probation or under an order of supervision now face the possibility of detention and removal if they have been convicted of committing a crime. This is especially true now that the Trump administration has made it a priority to deport any non-U.S. citizen with a criminal conviction.
It is important to understand that a non-citizen can be deported based on any criminal conviction, even those which took place many years in the past.
Consult with a criminal lawyer to understand the consequences of a criminal background on immigration status and to evaluate the possibility of having a conviction vacated in order to prevent deportation.
Removal proceedings
Removal stemming from a criminal conviction is a long, drawn-out process. Once a person is in deportation proceedings, the only way to get relief is to have the conviction vacated, which can take 30 to 90 days with the right approach.
After removal
While difficult, under some circumstances it is possible to get a case vacated after deportation, if the basis was a criminal conviction. Should a motion to vacate be secured, it is then possible to re-enter the United States even after removal. To do so, one must apply to return at the consulate of his or her country once the grounds for removal have been eliminated. However, it is important to note that upon vacating a conviction, your return is at the discretion of the immigration services, which will ultimately decide whether or not you are admissible.
Relief from deportation
In some circumstances, permanent residents or Green Card holders, may be able to fight removal based on a criminal conviction. Notwithstanding, this is limited to cases in which new information has been identified. By studying and evaluating past convictions, a lawyer may be able to identify possible grounds for a conviction to be vacated, which may include:
- Ineffective assistance of counsel or affirmative misadvice, such as when a lawyer erroneously informs the defendant that he or she will not be removed from this country; this has recently become particularly true with Cuban nationals due to new enforcement policies
- Lack of factual or legal basis for a conviction
- Newly discovered evidence
- Recantation of testimony by a material witness
- Victim acquiescence, in which a victim agrees or petitions to modify charges
If successful in filing a motion to vacate a judgment or sentence, or modifying or dismissing a charge, a lawyer may ultimately be able to provide relief from removal.
Jay White is an established lawyer in Southern Florida, having practiced exclusively in Miami-Dade County for 30 years.
If you are afraid of being deported because you committed a crime, clean your record and get rid of your charges now, while there is still time to act. Consultations with an attorney are always confidential.
Removal / Deportation FAQ
If you are a non-U.S. citizen and permanent resident and have committed a crime, you are in danger of being deported. To avoid removal, it is vital to investigate the possibility of cleaning your record. The risk for removal is highest when re-entering the country, requesting a change of immigration status, having contact with the judicial system or being the subject of a U.S. Immigration and Customs Enforcement (ICE) investigation.
If you are a permanent resident and have been convicted of a crime, you may be eligible to file a motion to vacate the conviction and ultimately find relief from removal. This will depend on the specifics of your case. Possible grounds for vacating or modifying a criminal conviction include affirmative misadvice or ineffective assistance of counsel, lack of factual basis for a conviction or newly discovered evidence. It is important to highlight that the type of crime you are convicted of impacts the impact possibility of changing the outcome.
No. All crimes will subject you to removal. While aggravated felonies, such as money laundering and drug trafficking, carry harsh consequences in immigration court with absolutely no relief, in some cases it may be possible to vacate a conviction if the crime is of a less severe nature. These cases include crimes of moral turpitude (CMT) and, depending on the specifics of the case, both bond and relief in immigration court may be available. Some crimes, such as possession of under 30 grams of marijuana, are excludable.
Yes, if you have been convicted of a crime, you will be deported. The only way to prevent removal from the U.S. to vacate the conviction and/or negotiate a new charge.
Yes, any permanent resident who has been convicted of a felony or two or more misdemeanors will be removed even if the crime and conviction took place many years ago. The risk of removal is highest when entering into the judicial system, re-entering the country or requesting a change of status, such as when applying for naturalization.
A plea colloquy refers to the statements that a judge issues to a person prior to entering a guilty plea; in the case of a non-citizen, this includes knowledge the fact that the accused will be deported as a result of his or her guilty plea. As such, it is extremely difficult to vacate a motion, though in certain situations, it may be possible depending on the specifics of the case, for instance the type of advice given by lawyer regarding the immigration consequences of a guilty plea.
Once you are in deportation proceedings, the only way to get relief from removal is to have your criminal conviction vacated. It is important to consult with a lawyer as soon as possible.
While difficult, under some circumstances it is possible to get a case vacated after deportation if the basis was a criminal conviction. If a lawyer can vacate the conviction, the grounds for removal no longer exist and it is then possible to re-enter the United States. To do so, one must apply to return at the United States consulate in his or her country.
Yes, even though they are Green Card or visa holders with legal permission to stay the country, residents can be removed if they have been convicted of a crime.
No. Upon returning to the US, you are always subject to inspection by an immigration officer and your criminal record will be available for review. If you have been convicted of a crime, consult with a lawyer before traveling.
Any family members who are legally in the country may remain in the U.S., provided they have not committed a crime.
Businesses and personal belongings are not confiscated upon removal from the United States of America. However, the U.S. government provides no assistance or services and it is up to the person removed to organization a solution.
Under the right circumstances it can be possible to fight removal from the U.S. if its basis was a criminal conviction that can be vacated or modified to a charge that is non-deportable. Possible grounds for vacating or modifying a criminal conviction include affirmative misadvice or ineffective assistance of counsel, lack of factual basis for a conviction or newly discovered evidence.
Affirmative misadvise or ineffective assistance of counsel is, in essence, bad advice or erroneous information which a defendant relies on when deciding whether or not to plead guilty. For instance, if an attorney incorrectly informed you that you would not be deported if you pled guilty, it may serve as a legal argument as to why you took the guilty plea. As such, it may provide legal grounds for vacating or modifying a criminal conviction and ultimately secure relief from removal.
No. If a lawyer promised you at the time of your plea that you would not be removed, this is no longer the case and may serve as legal grounds to vacate a charge.
No. No foreign national, including those seeking asylum, is protected from deportation based on a criminal conviction. If you are not a U.S. citizen and have a criminal conviction, you can and will be deported.
No. No foreign national is protected from deportation based on a criminal conviction. If a lawyer promised you in the past that you would not be removed due to your nationality, this is not the case and may be affirmative misadvice. If you are not a U.S. citizen and have a criminal conviction, you can and will be deported.
U.S. Immigration and Customs Enforcement (ICE) has an Enforcement and Removal Operations (ERO) division, which is responsible for the identification, arrest and removal of foreign nationals who are in the country illegally or who pose a risk to national security or public safety.
Miami is not a sanctuary city.
While most immigration cases are best addressed by an immigration lawyer, those facing removal based on a criminal conviction should consult with a criminal lawyer who is an expert in the criminal courts.
Yes. All consultations with a lawyer are confidential.