Criminal Convictions for Immigrants and Visa Holders

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What are the Immigration Consequences of Criminal Convictions in Massachusetts?

What can I do if I Have Already Been Convicted?

Can I be Deported if I Already Pled or Decide to Plead Guilty to A Crime in Massachusetts?

The short answer is yes, you can be deported or denied immigration benefits because of your Massachusetts criminal case. If you are not a United States citizen, you must consider the immigration consequences of many, many Massachusetts criminal offenses as you make your way through the criminal court system. This is true for people in nearly every immigration or alien category. Visa holders of all kinds, people on temporary protected status (TPS), asylum holders and lawful permanent residents (“LPRs”) all face serious immigration consequences of Massachusetts criminal cases.

You should also keep in mind that federal immigration law considers a continuance without a finding (“CWOF”) in Massachusetts to be a “conviction.” Therefore, if you plead guilty, are found guilty or if you agree to a “CWOF” in Massachusetts, you face the same immigration consequences.

The immigration consequences of criminal convictions often occur at a crossroads between the laws of the United States (federal immigration law) and the laws of the individual states where most crimes are investigated and prosecuted. This has made things complicated for criminal defense lawyers who were not well-versed in federal immigration law. The immigration consequences of incorrect advice to clients pleading guilty in criminal cases has been devastating and has led to millions of deportations or denials of immigration benefits.

As a consequence, the United States Supreme Court and the Massachusetts Supreme Judicial Court have created a set of rules to allow certain immigrants and aliens to withdraw, or take back, their convictions or their guilty pleas if they did not receive correct advice from their criminal lawyers about the immigration consequences of their decisions in criminal cases. The federal and Massachusetts leading cases in this area are Padilla v. Kentucky, 559 U.S. 356 (2010) and Commonwealth v. Clarke , 460 Mass. 30 (2011), Commonwealth v. DeJesus , 468 Mass. 174 (2014), Commonwealth v. Sylvain, 466 Mass. 422 (2013).

So What Crimes Will get me Into Trouble With the Immigration Authorities?

This is a complicated question. First, it depends on your immigration or alien status. Next, it depends on how the federal immigration authorities interpret your Massachusetts crime.

If you are a “non-immigrant” you are in the United States on a visa but do not intend to stay permanently. If you are an “immigrant,” you are a lawful permanent resident (“LPR”) or the family member of an LPR who is here on a visa sponsored by your family member and you plan to “adjust status” and become an LPR and eventually a United States citizen.

Basically, federal immigration law identifies specific crimes, as well as broad categories of crimes, as making non-immigrants and immigrants deportable (“removable”) or ineligible to adjust status. Here is a list of those crimes:

Denial of Naturalization:

LPR’s seeking to become citizens must be of “good moral character” under federal immigration law. If you fall under one of the following categories, you will not qualify to become a United States citizen:

1. A habitual drunkard;
2. A member of the class of persons described in INA § 212(a)(2)(D) (prostitution and commercialized vice), (6)(E) (alien smugglers), (9)(A) (polygamy), or § 212(a)(2)(A) (crime of moral turpitude or controlled substance crime, except for single offense of simple possession of 30 grams or less of marijuana); or (B) (multiple criminal convictions); or (C) (controlled substance trafficker, including the person whom the “immigration officer has reason to believe” is or was an illicit trafficker in a controlled substance”).

Many Massachusetts crimes are considered “crimes of moral turpitude” under federal immigration law, including theft offenses such as receiving stolen property, malicious destruction of property and an “aggravated” drunk driving conviction, which federal immigration law views as an DUI with particularly bad facts, like a serious accident or injury.

3. One whose income is derived principally from illegal gambling activities; or who has been convicted of two or more gambling offenses;
4. A person found to have given false testimony to gain any immigration benefits;
5. A person confined to a penal institution, as a result of a conviction, for an aggregate period of 180 days or more;
6. A person convicted of an aggravated felony after November 29, 1990.

A Massachusetts misdemeanor or a Massachusetts felony can be an “aggravated felony” under immigration law. A crime of violence or a theft offense is an “aggravated felony” under felony immigration law if you were punished by one year or more in jail. In Massachusetts, misdemeanors can be punished for as much as two-and-one-half-years. Under immigration law, you are still in jeopardy even if your sentence of one year was a “suspended sentence” and you did not actually go to jail. Federal immigration law also lists several specific crimes as “aggravated felonies,” including murder, demand for ransom and child pornography offenses.

Deportation or Removal

LPRs, nonimmigrant visa holders, asylum holders and TPR holders can be deported (“removed”) if they are convicted of certain offenses and, as above, certain broad categories of offenses:

1. Controlled Substance Offenses; the only exception is possession of 30 grams or less of marijuana. All other drug possession, distribution or trafficking offenses make you deportable.
2. Crimes Involving Moral Turpitude committed within five years of entry. Under this definition the offense must have a possible sentence of more than one year, whether probation or incarceration.

As mentioned above, many Massachusetts crimes are considered “crimes of moral turpitude” under federal immigration law, including theft offenses such as receiving stolen property, malicious destruction of property and an “aggravated” drunk driving conviction, which federal immigration law views as an DUI with particularly bad facts, like a serious accident or injury.

3. Two or more Moral Turpitude Convictions.
4. Aggravated Felonies.

As mentioned above, a Massachusetts misdemeanor or a Massachusetts felony can be an “aggravated felony” under immigration law. A crime of violence or a theft offense is an “aggravated felony” under felony immigration law if you were punished by one year or more in jail. In Massachusetts, misdemeanors can be punished for as much as two-and-one-half-years. Under immigration law, you are still in jeopardy even if your sentence of one year was a “suspended sentence” and you did not actually go to jail. Federal immigration law also lists several specific crimes as “aggravated felonies,” including murder, demand for ransom and child pornography offenses.

5. Firearm and Destructive Device Convictions;
6. Espionage, Sabotage, Treason, and Other Crimes;
7. Crimes of Domestic Violence, Stalking, Child Abuse, Child
   Abandonment, or Neglect;
8. Failure to Register as a Sex Offender;
9. Violating a Protective or 209A Order;
10. High Speed Flight From an Immigration Checkpoint;
11. Failure to Register or Falsification of Documents.

As you can see, the cross-section of Massachusetts criminal law and federal immigration law is tricky and requires a lawyer with expertise in both areas. If you are not a citizen of the United States, you must be extremely careful in choosing the right lawyer and making the right decisions at every stage of your Massachusetts criminal case.

Our Boston criminal defense attorney’s office always investigates and considers immigration consequences of criminal cases. We are also experts in withdrawing or vacating convictions for clients who have pled guilty or been found guilty of crimes without the proper immigration advice.

Contact Serpa Law Office if you are a non-citizen facing a criminal case. Your future is too important.