In Houston, an international city where more than 90 languages are spoken and with the third-largest Hispanic population in the United States,1 it is quite possible that one of your clients is not a U.S. citizen.  However, if your client gets into trouble with the police, he or she risks more than any U.S. citizen with similar problems. He or she may also face restrictions on travel to the United States or deportation.  Therefore, any legal practitioner in Houston, including criminal defense lawyers, prosecutors, family lawyers, and personal injury lawyers, among others, should be especially aware of the unique immigration consequences of criminal charges.  Sometimes the best outcome for a U.S. citizen (for instance, deferred adjudication) can mean the worst outcome for a foreign national. Thus, it is important to have an understanding of how certain crimes can affect your clients’ immigration statuses, which, in turn, may affect their ability to pursue legal remedies in civil courts, invest, and establish their businesses and lives in the United States. This article provides a basic overview of the important legal concepts and case law.

The laws governing the impact of a criminal record on a foreign national’s immigration status are very complex and involve state and federal criminal law and federal immigration laws. It is critical to understand all applicable laws because frequently, the definitions of important terms in criminal law vary from their meanings for immigration purposes. For instance, the definitions of “conviction” and “term of imprisonment” for immigration purposes differ greatly from their meanings in connection with most civil or criminal matters.

 

Conviction in the Context of Immigration Matters

The term “conviction” is defined by the federal immigration statute to be a formal judgment of guilt entered by a court, or if adjudication of guilt has been withheld, a conviction exists if a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt and the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed.2  This means that while U.S. citizens may be pleased with a judge granting deferred adjudication and can move forward with re-building their lives, non-citizens may not. Their ordeal continues. Under immigration law, deferred adjudication is considered a conviction where the deferred adjudication statute requires a plea or admission of sufficient facts to warrant a finding of guilt, or some kind of punishment is ordered. In fact, the Board of Immigration Appeals3 has held that a deferred adjudication in Texas is a conviction for immigration purposes.4

Additionally, even convictions that have been expunged may be still be considered convictions for immigration purposes, including deferred adjudications that have been dismissed and expunged. Also, foreign criminal convictions are considered and will affect the foreign national’s immigration status and eligibility for immigration benefits.

 

Term of Imprisonment in the Context of Immigration Matters

The phrase “term of imprisonment” also has its special definition under the federal immigration statute. The statute reads that any reference to a term of imprisonment related to an offense is deemed to include the actual sentence of incarceration or confinement, regardless of any probation, suspension of the imposition, or execution of that imprisonment, or sentence in whole or in part.5 Thus, either an imposition of sentence, or the execution of sentence, constitutes a term of imprisonment.  However, a sentence of probation alone (not a sentence that is probated) is not considered a sentence to confinement or imprisonment under such statute.

Thus, since immigration law provides distinct definitions of “conviction” and “term of imprisonment” from that of criminal law, it is advisable for both the criminal defense lawyer and the immigration lawyer to timely coordinate with each other. Ideally these lawyers would, immediately after the arrest and prior to charging of the foreign national, explore options in an attempt to minimize the negative impact of a criminal conviction on the foreign national’s immigration status and eligibility to remain in the United States.

 

Consequences of Crimes on Immigration Status

Inadmissibility vs. Deportability

After analyzing whether the foreign national has been convicted and/or received a term of imprisonment, it is then important to determine what effect the criminal record will have on his or her immigration status. The immigration statute sets out separate lists of grounds that make foreign nationals “inadmissible” or “deportable.” The grounds of inadmissibility generally apply to a foreign national who is seeking an immigration benefit or lawful entry into the United States.6 The grounds of deportability generally apply when foreign nationals are physically present in the United States but are not allowed to remain.7

If a foreign national is subject to any of the grounds of inadmissibility or deportability, their immigration status can be affected.8 While at first glance the grounds of inadmissibility and deportability appear to be very similar, the statutes are not necessarily parallel and a foreign national may be found admissible, which allows the foreign national to apply for certain benefits, but at the same time be found deportable, and vice versa.

 

Crimes Involving Moral Turpitude

Several of these grounds of inadmissibility and deportability are related to criminal activities, including the “crime involving moral turpitude” (CIMT) ground. This is an important concept that is listed under both the inadmissibility and deportability grounds and is unique in immigration law. The concept of a CIMT can be difficult to grasp, especially since the immigration statute does not define what can be categorized as a CIMT. Thus, through case law, a CIMT is generally defined as conduct which is inherently base, vile, or depraved and contrary to the accepted rules of morality. It is important to note that both felonies and misdemeanors can be CIMTs. Common examples include theft and fraud crimes. 

A non-U.S. citizen may be inadmissible to or barred from entering the United States if he or she has a CIMT, even without a formal conviction. As explained above, a foreign national need only have admitted the essential elements of the crime in order to be found inadmissible for committing a CIMT.9 However, formal convictions are required to make foreign nationals deportable for a CIMT if: (1) they are convicted of a CIMT within five years after the date of admission to the United States and were convicted of a crime for which a sentence of one year or longer may be imposed; or (2) after admission to the United States, they were convicted at any time of two or more CIMTs, not arising out of a single scheme, regardless of whether confined and regardless of whether the convictions were in a single trial.10

Thus, since the statute does not provide an exhaustive list of what can be considered a crime involving moral turpitude and such a crime can affect foreign nationals in different ways, applicable state or federal criminal statute must be examined and relevant case law must be reviewed in each foreign national’s case.

 

Aggravated Felonies

Another concept in immigration law that differs from state and federal criminal law is that of the “aggravated felony.” A conviction for an aggravated felony can result in the removal or deportation of a foreign national,11 loss of his or her permanent residency status, or ineligibility for immigration benefits. It is also important to note that, in some cases, a crime considered to be a misdemeanor under state criminal law can still be considered an “aggravated felony” for immigration purposes.

Aggravated felonies have been defined to include more than 50 classes of crimes, “whether in violation of federal or state law.”12  Crimes that can be considered aggravated felonies range from specific “category” crimes, such as murder, rape, firearm offenses, and RICO offenses, to name a few, to “term of imprisonment” crimes, including crimes of violence, theft, burglary, commercial bribery, forgery and fraud, where there is a sentence imposed of at least one year, regardless of whether probated or not. For aggravated felonies related to crimes involving money, it is important to determine the amount in question. Money laundering, fraud offenses and tax evasion are aggravated felonies if the amount in question exceeds $10,000.13 Additionally, drug offenses can be considered aggravated felonies if it is a drug trafficking offense under the Controlled Substances Act.14 Generally, a conviction is considered a drug trafficking aggravated felony if the state offense proscribes conduct punishable as a felony under federal law.15 Importantly, conspiracies or attempts to commit of any of the aggravated felony crimes listed in the statute can also be considered to be aggravated felonies.

 

Domestic Violence

As explained above, while certain violent crimes may be aggravated felonies, the immigration statute specifically addresses domestic violence crimes separately. Thus, findings of domestic violence can be extremely detrimental to foreign nationals, as they can result in rendering the individual both inadmissible16 and deportable.17 A “domestic” relationship is defined broadly in the context of immigration law, and can include a person with whom a foreign national is not cohabiting.18 Foreign nationals can also be deportable for violating a protection order.19 Even findings of domestic violence in a final divorce decree can affect a foreign national’s immigration status. Therefore, when dealing with any allegations of domestic violence, it is also important to analyze the case from the perspective of how the issue could affect your client’s immigration status.

 

Conclusion

While criminal issues create their own problems for clients, it is extremely important for all legal practitioners in Houston, a cosmopolitan city with large immigrant populations, to be aware of the unique dilemmas clients may face when they are not U.S. citizens. As explained above, a potentially “minor” incident involving the police may affect your foreign national clients’ ability to live, work, and invest in the United States, as well as pursue legal remedies in civil courts. Awareness of the complexity of how criminal law and immigration law interact and early analysis of your clients’ cases will allow you to properly advocate for them and minimize their immigration consequences, and thus, protect their ability to remain in the United States. Due to this complexity and the potentially extreme consequences of not properly addressing how criminal matters can affect your foreign national clients, it is advisable to work with an immigration attorney experienced in criminal issues, especially since immigration laws and interpretations frequently change and are commonly applied retroactively.

Ruth Clark is an associate attorney at Foster Quan, LLP.  She received her J.D. from the University of Houston Law Center.  Andréa Fascetti is an associate attorney with Foster Quan, LLP. She is a member of the New York State Bar, Florida State Bar and Brazilian National Bar and received her J.D. from William Mitchell College of Law and her L.L.M from Loyola University Chicago. Angelique Montano is a senior attorney with Foster Quan, LLP and is board certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. She received her J.D. from the University of Houston Law Center, and she has been admitted to the State Bar of Texas, the U.S. Court of Appeals for the Fifth Circuit, and the U.S District Court, Southern District. Their practices focus on immigration law and related issues.

 

Endnotes

1.See City of Houston, Houston Facts and Figures, available at http://www.houstontx.gov/abouthouston/houstonfacts.html.   2. INA § 101(a)(48)(A) (2008).   3. The Board of Immigration Appeals (BIA or Board) is the highest administrative body for interpreting and applying immigration laws. It is authorized up to 15 Board Members, including the Chairman and Vice Chairman who share responsibility for Board management. The Board is located at the Executive Office of Immigration Review (EOIR) headquarters in Falls Church, Virginia. Generally, the Board does not conduct courtroom proceedings - it decides appeals by conducting a “paper review” of cases. On rare occasions, however, the Board does hear oral arguments of appealed cases, predominately at headquarters.   4.Matter of Punu, 22 I&N Dec. 224 (BIA 1998).   5. INA § 101(a)(48)(B) (2008).    6. The grounds of inadmissibility are found in Section 212 of the INA.   7. The grounds of deportability are found in Section 237 of the INA.   8. Please note that there may be waivers available for certain crimes, but each case must be analyzed individually.   9. INA § 212(a)(2)(A)(i)(I) (2008).   10. INA § 237(a)(2)(A)(i)-(ii) (2008).   11. INA § 237(a)(2)(A)(iii) (2008).   12. INA § 101(a)(43)(A)-(U) (2008).   13. INA § 101(a)(43)(D) (2008).   14. INA § 101(a)(43)(B) (2008).   15.Lopez v. Gonzales, 549 U.S. 47 (2006).  Even if not an aggravated felony, generally a foreign national will still be deportable.  Please also note that there is an exception for -one offense of simple possession of 30 grams or less of marijuana.   16. INA § 212(a)(2)(A)(i) (2008).  Texas state law defines “assault of a family member” to be an offense if the person intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.  Therefore, a charge of Assault of a Family Member could be interpreted as being a crime of moral turpitude since the law specifically includes the language “intentionally and knowingly.”   17. INA § 237(a)(2)(E) (2008).   18. Id.   19. Id.