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California Convictions with Adverse Immigration Effect
Whenever we represent a person, we need to know if he or she is a U.S. citizen because many convictions have adverse immigration effects. If the offense does have adverse immigration effects, we need to try to resolve the case for an immigration-neutral offense, even if it means that the client may serve more time in custody.
In doing so, when we enter the plea to an immigration-neutral offense, it may be necessary to state on the record, at the time of the conviction that the offense, for example, did not involve any specific controlled substance, that there was no traumatic injury, or that defendant did not commit any violence or make a threat of violence.
We find that a plea to “conspiracy,” Penal Code § 32, for example is often an immigration-neutral plea, but there are exceptions.
Broadly speaking, there are ten categories of crimes that have adverse immigration effects under federal law, meaning that a person who suffers one of these conviction may face deportation / removal, exclusion and / or denial of naturalization or other severe immigration consequences.
The ten categories of crimes are:
- Aggravated felonies (see 8 U.S.C. § 1227(a)(2)(A)(iii)). See list of fifteen such crimes at the bottom of this article.
- A crime of moral turpitude (see 8 U.S.C. §§ 1182(a)(2)(A)(i), 1227(a)(2)(A)(i));
- A controlled substance offense (see 8 U.S.C. §§ 1182(a)(2)(A)(i), 1182(a)(2)(C), 1227(a)(2)(B));
- A firearm or destructive device offense (see 8 U.S.C. § 1227(a)(2)(C));
- A domestic violence, stalking, or child abuse offense (see 8 U.S.C. § 1227(a)(2)(E)(i)) (note that a conviction for violation of Penal Code § 243(e)(1) is generally immigration neutral, but verify this with an immigration attorney);
- Violation of a protective order (see 8 U.S.C. § 1227(a)(2)(E)(ii));
- A human trafficking offense (see 8 U.S.C. §§ 1182(a)(2)(H), 1227(a)(2)(F));
- Multiple criminal convictions with an aggregate sentence of 5 years or more (see 8 U.S.C. §§ 1182(a)(2)(B));
- A prostitution offense (see 8 U.S.C. §§ 1182(a)(2)(D)); and
- A “serious criminal offense,” which includes any felony, a crime of violence, and reckless driving or DUI with injury (see 8 U.S.C. §§ 1182(a)(2)(E)).
Aggravated felonies are determined by federal statute and case law. See Esquivel-Quintana v. Sessions (2017) 137 S. Ct. 1562, 198 L.Ed. 2d 22. Certain offenses defined as misdemeanors under state law may be considered “aggravated felonies” under federal law. “Aggravated felonies” include, but are not limited to:
- Murder, rape, or sexual abuse of a minor;
- A crime of violence, as defined in 18 U.S.C. § 16, but not including a purely political offense if the term of imprisonment is less than one year;
- Trafficking of a controlled substance, firearms, destructive devices or explosive materials;
- Money laundering if the amount exceeds $10,000;
- An explosive materials offense;
- A firearms offense;
- A theft offense, including receipt of stolen property or a burglary offense if the term of imprisonment is at least one year;
- Child pornography;
- Pimping, pandering, or operating a prostitution business;
- Human trafficking;
- Fraud or deceit in which the loss to the victim or victims exceeds $10,000;
- Failure to appear by a defendant for service of a sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more, or failure to appear to answer or resolve a felony for which a sentence of 2 years’ imprisonment or more may be imposed;
- Commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered if the term of imprisonment is at least one year;
- Obstruction of justice, perjury or subornation of perjury or bribery of a witness if the term of imprisonment is at least one year; and
- An attempt or conspiracy to commit any one of the above offenses.
If you are not a U.S. citizen, you should consult with your attorney or an immigration attorney about the immigration consequences of your plea, particularly if your offense or offense might qualify as a “aggravated felony,” crime of moral turpitude, controlled substance offense, firearm offense, or domestic violence offense.
For more information about adverse immigration consequences of certain convictions, please click on the following articles:
