Under United States immigration law, if a noncitizen is in the process of being deported, they are in removal proceedings. If the basis of the removal proceedings involved a criminal conviction, the removal case is often a called criminal deportation case.
If you are facing deportation due to criminal charges, contact Tucker, Nong and Associates immediately. Our experienced immigration defense lawyers will be able to advise you on your best options and can help defend your rights in court. To learn more about how Tucker, Nong and Associates can defend your rights in immigration court, visit our page:
Crimes Involving “Moral Turpitude”
A resident alien can be deported for committing a crime involving moral turpitude within five years of their date of entry into the United States. If they commit two or more crimes involving moral turpitude not arising out of a single act after entry, they can also be subject to removal proceedings.
What is Moral Turpitude?
Under U.S. immigration law, moral turpitude is not defined. Since there’s no statutory definition of what constitutes moral turpitude, it’s based on the facts of each particular case.
Serious crimes such as murder, kidnapping, sexual assault or fraud would qualify because they gravely violate accepted moral standards.
Crimes such as DUI or criminal trespassing may not be considered a crime of moral turpitude. In making the decision in a case on whether a crime involved moral turpitude, the courts will look at the statutory elements of the crime, and then compare them with a generic definition of moral turpitude.
Since most criminal deportation cases involve convictions of state statutes, and what constitutes moral turpitude varies from state to state, immigration courts will look to their generic definition of the term.
Why You Should Hire an Immigration Lawyer
“Moral Turpitude” is a very unique legal subject. Criminal cases involving crimes of moral turpitude are typically extremely complicated. These cases require specific legal training. An experienced immigration lawyer understands moral turpitude at a level that ordinary individuals do not. Therefore, it is strongly advised that you work with an immigration lawyer in order to have the best results possible.
Section 101(a)(43) of the Immigration and Nationality Act provides a very long list of specified crimes and other felonies for which a noncitizen can be deported. These crimes include but aren’t limited to murder, rape, sexual abuse of a minor, controlled substance and firearm convictions, money laundering, ransom, a crime of violence for which a term of imprisonment is at least one year, and other specified crimes.
Domestic violence crimes
Any noncitizen who is convicted of domestic violence, child abuse, stalking, child neglect, or child abandonment is subject to removal proceedings. Domestic violence and protected people are very broadly defined. If an order of protection is entered against a noncitizen, and a court finds that they have violated that order, that person is then deportable. An order of protection is also broadly defined and also includes any temporary orders.
What is a conviction?
The actual sentence imposed for most of these crimes is irrelevant. The alien need not be imprisoned, nor is an actual conviction required to trigger removal proceedings. If the noncitizen pleads guilty, or is found guilty of a crime involving moral turpitude, or a specified crime or penalty, that alone is a sufficient basis with which to file a petition for removal. This also applies to deferred sentences where a dismissal results after successful completion of a term of supervision or conditional discharge. A conviction that is on appeal is not a final conviction. It can’t serve as the basis for triggering a criminal deportation proceeding.
Notice of Deportation Proceedings
The notice to appear is served on the alien and starts the deportation proceedings. It can be served personally, by mail, or mailed to one’s attorney. There must be ten days between date of service and the first scheduled court appearance. The factual allegations in the notice to appear are the basis of the alien’s deportability. The alien will be required to admit or deny these allegations. If the allegations are denied, evidence and argument must be presented as to why the petition for removal should be denied.
The Master Calendar Hearing
The Notice to Appear bears the date, time and location of the Master Calendar Hearing. It’s in the nature of a scheduling conference. The noncitizen has certain rights. First and foremost, courts have acknowledged that they are entitled to the benefit of an attorney. Should the court not appoint counsel on their behalf, they are given time to retain an one. The services of an interpreter are also important in the proceeding. Many interpreters are on staff. The hearing must be held in the district of their residence or of their arrest. The function of the judge is to determine whether the noncitizen can be deported. A determination is also made on what country the alien would be deported to.
The Individual Hearing
In the individual proceeding, the court will hear the issues on the alien’s particular case and their eligibility to raise certain defenses. A determination will be made on whether the individual will be permitted to remain in the United States. Individual hearings take much longer than Master Calendar Hearings and are ordinarily allotted four hour blocks of time. In these hearings the judge hears evidence from both the government and the alien. In many cases, issues arise that will require longer than a four hour block of time.
The judge will then order the matter continued to a future date. If a case involves complicated issues of evidence and law, it could easily take over a year for a decision. After all evidence has been received and testimony heard, the judge makes a decision. In the large majority of cases, the judge will render a decision at the close of all of the evidence and testimony in court. In some cases, the judge might continue the case for purposes of formulating a decision.
Post decision filings
After a decision has been made, either side can challenge the judge’s decision by alleging error. This can be done by filing a Motion to Reopen, Motion to Reconsider, or by bringing an appeal before the Board of Immigration Appeals. The appeal is most commonly filed, and it must be filed within 30 days of the date of the lower court’s decision. Board of Immigration Appeals decisions can be appealed to the federal appellate courts, but the appellate process becomes quite costly.
Waiver for a crime involving moral turpitude
Under Section 212(h)of the Immigration and Nationality Act, the noncitizen may be able to apply for a waiver of deportation for commission of a crime of moral turpitude. This waiver is only available to those who have not committed an aggravated felony and are not a threat to national security, so long as they have lived in the United States continuously for at least seven years. Other limited exceptions also exist under Section 212(h). Proof of rehabilitation and lack of violence operate in favor of the person seeking a 212(h) waiver.
How we can help you
Criminal charges that could result in deportation is a very complicated area of United States immigration law. It is strongly recommended that a person not attend deportation proceedings without the benefit of an experienced immigration attorney.
If you are facing criminal charges that could result in deportation, contact Tucker, Nong and Associates by phone or online contact form immediately to learn how we can help you negotiate your case in court so that you receive the best result possible. Don’t go into court alone, contact us so we can start helping you right away.