Even if you are a “lawful permanent resident” (a green card holder), in certain situations the government can still try to deport you. One of the most common reasons green card holders get put in Immigration Court is because of a criminal conviction. Even if a person is a “permanent” resident, they can still be deported if they’ve committed certain crimes. But, as discussed below, there is a complicated legal methodology for determining whether state crimes trigger federal immigration consequences. In some cases, this methodology may prevent deportation.
The full explanation of the process is complex, but simply put, state statutes often criminalize a wide variety of conduct. Oftentimes some of that criminalized conduct in the state statute is of concern to the federal government for deportation proceedings, but some of it is not. In such case, there may be a way to avoid deportation. And even if the legal analysis does not prevent deportation, there is often still the possibility of applying for some form of relief from deportation. Accordingly, if you have a criminal conviction and are facing deportation, it is important to talk with a knowledgeable immigration attorney as soon as possible. Below is a more detailed explanation of this legal methodology.
As an initial matter, if you have a green card, only criminal convictions can get you deported. Simply being arrested or charged with a crime is not enough. A conviction does not just mean being found guilty at the end of a trial, however, and can include, for instance, a guilty plea.
What kind of criminal convictions can get you deported? A complete list of the problematic crimes is beyond the scope of this post. (They are found at Immigration and Nationality Act Section 237(a)(2)). In general though, it is only more serious convictions that pose an issue. But, even relatively minor drug convictions can present a problem, and a detailed analysis is almost always necessary. Notably, even misdemeanors can get a person deported. For instance, INA § 237(a)(2)(A)(ii) provides that two “crime involving moral turpitude” convictions lead to deportation if the crimes are not from a “single scheme of criminal misconduct,” regardless of whether or not they are felony convictions.
Assuming you’ve been convicted of a crime, what method is used to determine whether your conviction is a deportable offense? Even if a conviction appears to be problematic, in certain cases, the conviction cannot be used to deport you. This is because of something called the “categorical approach.” This is the approach used by the immigration system to determine if you are deportable or not because of your crimes. Under the categorical approach, the details of your specific crime are not relevant. Instead, courts look at the statute that you were convicted under. The first question they ask is whether there is any possibility to violate the state statute in a way that does not trigger federal removal concerns. For example, let’s say a state statute prohibits the distribution of many different drugs, only some of which the federal government also criminalizes. Because the federal removal statute only deports a person for a drug crime involving a federally controlled substance, if the state statute controls different drugs than the federal government then the state statute is referred to as being “overbroad.” That is, it is theoretically possible to violate the state statute in a way that does not pose federal issues.
If the state statute is “overbroad,” the next question is whether the state statute is “divisible.” This is a complex question. Essentially though, courts look at a state statute’s different alternatives and determine whether a jury must agree on which alternative a defendant committed in order to sustain a conviction. For instance, with the drug example, does a jury have to agree on which controlled substance a defendant used? If the jury has to agree on the particular alternative involved, those alternatives are called “elements” (in which case the statute is referred to as being “divisible”), whereas if the jury does not have to agree, the alternatives are called “means” (meaning the statute is “indivisible”). This distinction matters.
If a state statute is both “overbroad” (it includes conduct not of federal immigration concern) and is “indivisible” (its alternatives are “means” not “elements”), then the state statute CANNOT serve as a basis for deportation. This means that even some state statutes you would think would get you deported do not actually lead to that result. If the statute is “overbroad” but also “divisible,” a process called the “modified categorical approach” is then used. Under this approach, the courts look to a select group of documents, such as any charging document or plea agreement, to determine which of the elements you were charged with violating. If the elements are of federal immigration concern, the crime can serve as the basis for removal. If the elements are outside the range of federal immigration crimes, then the conviction cannot get you deported. The whole process is a complex one that involves several different considerations. Accordingly, talking about your case with a knowledgeable deportation lawyer is critical to giving yourself the best chance possible to avoid removal.
Lastly, although it’s more than this post will discuss, even if your criminal conviction(s) make you deportable, there is often the possibility of applying for at least some form of relief from removal. In certain cases, waivers may be submitted for the crimes, or something called cancellation of removal for permanent residents may be applied for. There are different rules for each form of relief depending on what crime was committed and when the crimes were committed in relation to when you became a green card holder, but they are certainly an option to explore. In addition, although a deportable crime often forecloses the possibility of applying for asylum, in certain cases somewhat similar forms of relief called “withholding of removal” and the “Convention Against Torture” may be sought. Although they have higher standards of proof, criminal convictions generally do not prevent you from applying for at least some defense to deportation if you satisfy the other eligibility requirements. Thus, even with a relatively serious a criminal record, not all hope is lost in a deportation case.
Disclaimer: Although I'm an attorney, unless I am retained by you, I am not your attorney. The information in this blog is solely general legal information. Especially in immigration law, the particular facts of your individual case are vitally important and general legal information alone should not be used to make a personalized decision. In addition, the law can change rapidly, and what is found in a particular post may not be the most current reflection of the law. Thus, please speak with an attorney before either taking or choosing not to take any action relevant to your case.