Deportable offenses are crimes that mean a non-citizen offender may be eligible for removal from the country. The laws and processes for a typical criminal deportation procedure differ significantly from those of extradition to another state or country. This isn’t about an external entity requesting the return of an individual to face trial. Rather, it’s the consequences of unlawful behavior for non-citizens as outlined in Title 8 of the U.S. Code.
If such a crime has been committed, an arrest will usually be made by Immigration and Customs Enforcement (ICE). Detainees are then held at an immigration facility run by the Department of Homeland Security or a private entity. The final determination on deportation will then be handled by federal immigration courts under the Executive Office for Immigration Review (EOIR).
Let’s take a look at some of the crimes that are eligible for deportation along with some other key considerations.
1. Crimes of Moral Turpitude
A crime of moral turpitude describes behavior that is committed with clear criminal intent or could be described as morally reprehensible.
Deportable crimes in this category include:
- Theft by unlawful taking or disposition;
- Driving under the influence;
- Money laundering;
- Voluntary manslaughter;
- Prostitution;
- Welfare fraud.
When it comes to removal proceedings, a single crime of moral turpitude can be considered a deportable crime. Even an isolated instance of shoplifting can have an impact on the immigration status of the offender.
However, there are some potential exceptions, such as a single crime of moral turpitude is considered to be petty. For instance, a non-citizen might commit a single theft carrying a maximum sentence of less than a year. If they receive a sentence of under six months, this may be considered a petty crime.
There are also time-related exemptions. If a crime of moral turpitude was committed more than five years after legal admission to the country (or 10 years for lawful permanent residents), such crimes aren’t automatically deportable.
2. Aggravated Felonies
Aggravated felonies are the most serious criminal charges. Immigration legislation outlines an extensive list of circumstances under which a felony might be considered to be aggravated, most of which result in eligibility for deportation.
Some examples of these include:
- Murder;
- Rape;
- Fraud of over $10,000 value;
- Drug trafficking;
- Kidnapping;
- Violent crimes.
The most serious of these — homicide convictions defined as murder and sexually violent crimes like rape among them — can result in expedited deportation.
Some non-citizens who have served their time may consider themselves safe from deportation because their offense was not defined as aggravated at the time of the charge. Even if their crime is added to the definition years after the event, they could then be subject to removal proceedings.
3. Drug Offenses
Drug offenses relate to the illegal possession, use, and distribution of controlled substances. The U.S. government has little tolerance for these crimes, with deportations a common result for non-citizens offenders.
Common deportable crimes include:
- Drug trafficking;
- Drug manufacturing;
- Simple possession of a controlled substance;
- Possession of drug paraphernalia.
U.S. drug laws are some of the strictest in the world. However, there is some leeway for possessing less than 30 grams of marijuana. Though this conviction isn’t a deportable crime, it is grounds for inadmissibility. For instance, if a non-citizen offender receives a conviction for possession of 20 grams of marijuana, they won’t be deported. But if they leave the U.S. for a vacation they may not be allowed back in the country.
Often, the best way to avoid deportation for drug charges is to avoid a formal conviction. This could be due to illegal search and seizure by law enforcement or seeking a plea diversion on the condition they meet rehabilitation program requirements.
4. Firearms Offenses
A firearms offense involves the illegal possession, use, trade, or manufacture of weapons designed to fire projectiles via an explosive action.
Some of the firearms offenses considered to be deportable crimes include:
- Unlawful possession of a firearm;
- Unlawful discharge of a firearm;
- Aggravated unlawful use of a weapon;
- Possessing a firearm during the commission of an aggravated battery;
- Aggravated assault with a firearm;
- Carrying a concealed weapon.
Most firearms offenses are considered to be deportable, as they are often connected to crimes of moral turpitude or aggravated felony. A single instance of this on your criminal record can make you eligible for removal. As such, it can be challenging to establish areas of deportation defense or exemption in such cases.
Usually, the best approach is to seek alternative charges, such as arranging a change to the charge from unlawful possession of a firearm to unlawful possession of a weapon. This is ambiguous enough to be considered more neutral concerning deportable crimes. Further, the burden of proof that it is a deportable offense generally falls on ICE.
5. Crimes Related to Domestic Violence
A crime of domestic violence is one in which a current or former partner is subjected to threats or acts of violence. This includes both felony and misdemeanor crimes, such as:
- Felony assault;
- Stalking;
- Child neglect;
- Child abuse;
- Violation of a protection order.
The primary reason these are considered eligible for removal proceedings is, again, their links to crimes of moral turpitude. Indeed, in some circumstances, they may be considered aggravated felonies — in which case, a single crime within five years could see a non-citizen automatically deported.
The key to avoiding deportation here is to negotiate a lesser, non-deportable charge, such as by seeking to downgrade a charge of stalking to the immigration-neutral charge of trespassing.
Exceptions and Waivers
In most cases, an exception to deportation applies when there are grounds to consider an offense to be petty and not a crime of moral turpitude.
Certain circumstances allow immigration judges to issue a waiver for deportation proceedings. If a non-citizen can be confirmed as not posing a threat to national security, they may be protected from removal under Section 212(h) of the Immigration and Nationality Act. This is subject to the discretion of the judge and offenders must meet certain eligibility requirements, including:
- The crime of moral turpitude occurred more than 15 years before the application for a visa or lawful permanent resident (LPR) status.
- A non-citizen convicted of prostitution-related crimes has been rehabilitated and is not a threat to national security.
- A non-citizen is an immediate family member of a U.S. citizen or LPR and deportation would cause the relative extreme hardship.
Waivers are also often available for those who committed crimes as juveniles. This will usually not apply to most aggravated offenses. However, those relating to drug abuse, prostitution, and delinquent behavior tend to fall under eligibility.
Expunged Crimes and Other Post-Conviction Measures
Expungement occurs when a convicted person applies to the court to have a conviction removed from their criminal record. However, an expunged record doesn’t make a non-citizen immune from deportation. The record is still viewable by immigration authorities and an application for a visa or LPR status must still declare the conviction.
Some post-conviction measures that can offer relief from deportation include:
- Resentencing to a lesser conviction;
- Overturning a conviction due to the behavior of law enforcement or counsel;
- Reducing the sentence to a form that is more immigration neutral;
- Withdrawing a plea due to incomplete legal advice.
The Role of Executive Measures and Enforcement
The process of deportation and the extent to which it’s enforced is often dependent on the current government administration. This was particularly evident in respect of the Trump administration, which issued executive orders prioritizing the arrest and deportation of undocumented immigrants and immigrants with criminal convictions. In the first 4 months of 2017, ICE arrested more than 41,000 individuals.
This type of executive action and enforcement puts non-citizens with criminal convictions in a particularly vulnerable position. Those who may not be fully aware of their eligibility for deportation may find themselves unexpectedly facing removal proceedings.
As such, it’s vital to collaborate with an experienced immigration lawyer. This is not just key during removal proceedings, but also at the time of an arrest for a potentially deportable crime. The earlier experts in the field can get involved, the better chance there is of establishing relevant protections and representation strategies.
