Criminal Convictions and Immigration

Criminal Convictions and Immigration

As a criminal lawyer serving Columbia and Chesterfield, South Carolina, I deal with how a criminal proceeding in South Carolina can intersect with a noncitizen’s immigration status in a number of complex ways, which can result in serious consequences for that individual’s future in the United States. Non citizens charged with even the most minor offenses are vulnerable to negative immigration actions such as detention, deportation, and permanent bars to re-entry. The United States Supreme Court has issued a decision stating that criminal defense attorneys are required to advise those whom they are defending about the potential consequences of criminal pleas on a client’s immigration status. Therefore, immigrants facing criminal charges should seek the immediate assistance of an experienced criminal defense attorney who is well-versed in both criminal law and the complex immigration-related issues that may arise. If you are a noncitizen facing a criminal charge, Li Law Firm can provide you the expertise that you need to mount a proper defense and avoid or mitigate any negative immigration actions that follow.

Immigration Status in South Carolina

There are several categories of immigration status that non-citizens facing criminal charges commonly belong to or are in the process of acquiring:

  • Lawful Permanent Resident status is granted to a noncitizen to permit him or her to reside and work permanently in the United States. Individuals with this status are often known as green card holders, and those who apply for this status must indicate that they intend to reside permanently in the country. Applicants for this status are often granted either family-based visas because they satisfy the requirements for familial relationships with other lawful permanent residents or citizens, employment-based visas, or diversity-based visas.
  • Refugee or asylee status is granted to non citizens who have arrived in the country and possess a well-founded fear of persecution on the basis of race, religion, nationality, membership in a social group, or political opinion if they return to their country of origin. After satisfying certain requirements, those with refugee or asylee status may later request for adjustment and gain lawful permanent resident status.
  • Violence Against Women Act (VAWA) Self-Petitioner status may be granted to certain spouses, children, and parents of U.S. citizens and certain spouses and children of lawful permanent residents who have committed abuse. Similar to refugees and asylees, approved VAWA self-petitioners may also later file an application for lawful permanent resident status.
  • T or U Visas may be granted to individuals who have been the victim or a severe form of human trafficking or who have suffered severe physical or mental abuse as a victim of criminal activity and have been of help to a Federal, state, or local investigation of the criminal activity causing the abuse.
  • Undocumented Immigrants are the most vulnerable group when it comes to criminal proceedings. These are individuals who entered the country with legal temporary visas and have overstayed the length of time they were supposed to stay, or those who entered without any form of inspection or application.

Criminal Convictions or Pleas in South Carolina as Grounds for Deportation

Non citizens may face an enforcement action called a removal proceeding initiated by the Department of Homeland Security because of a criminal conviction or plea. Removal proceedings are initiated against non-citizens whom the government proposes to deport back to their home countries due to a variety of possible reasons, including a criminal conviction or a plea. For the purpose of removal proceedings, a conviction means that a court has entered a formal judgment of guilt, the noncitizen charged with the crime has entered a guilty plea or no contest (nolo contendere) plea, or the noncitizen has admitted enough facts to support a finding of guilt. In addition, the judge must have somehow punished the noncitizen for his or her actions, such as a penalty, fine, community service, or jail time.

If a noncitizen is convicted of one of the following types of offenses, or admits that he or she committed one of these offenses even without a conviction, that noncitizen may be deportable and subjected to removal proceedings:

  • Aggravated Felonies can result in the most severe consequences for non citizens. A conviction of these crimes (as defined by the Immigration and Naturalization Act (INA) and not as defined by state criminal laws) may make non citizens ineligible for many forms of immigration relief and may result in mandatory detention. Aggravated felonies under the INA include crimes of violence that involve the use of a physical force for which the penalty was at least one year, murder, rape, sexual abuse of a minor, drug trafficking, firearms trafficking, theft or burglary which carries a possible prison term of at least one year, child pornography, prostitution, failure to appear for service of sentence, etc.
  • Controlled substance violations may also result in a noncitizen’s deportability. This includes a conviction or plea for a conspiracy or an attempt to possess, distribute or manufacture a controlled substance. In other states, possession for personal use of up to thirty grams of marijuana is exempted from the list of deportable proceedings. However, this exception does not apply in South Carolina because under South Carolina statute, possession of marijuana exceeding 28 grams is considered possession with the intent to distribute.
  • Crimes involving “moral turpitude” may also render a noncitizen deportable. These often refer to crimes that shocks the public conscience as being inherently vile or depraved and are contrary to general rules of morality and the duties owed between people. These are generally categorized as crimes with an intent to steal or defraud, crimes in which bodily harm is caused or threatened by a willful or reckless act, and sexual offenses. Whether a crime involves moral turpitude will depend on how it is defined under South Carolina statutes, and if certain elements are present, an immigration judge will decide if it meets the criteria. Whether a crime involves moral turpitude requires complex legal analysis, and the assistance of a seasoned attorney such as the advocates at the Li Law Firm is crucial to achieving a positive outcome.
  • Domestic violence, such as violating a protective order, stalking or crimes against children, may render a noncitizen deportable.

A criminal charge by itself already carries the potential for harsh consequences that may forever change your life. If you are a noncitizen, a criminal charge may even more severely impact your future as it could result in your detention, deportation, or being permanently barred from re-entering the United States. If you find yourself in this situation in South Carolina, do not hesitate to contact the Li Law Firm. Having an experienced attorney by your side as early as possible in the process is crucial to ensure that you have the right strategy for defending your rights.

By |2017-07-10T21:29:06+00:00January 20th, 2016|Felonies, Misdemeanors|0 Comments

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