What are Deportable Offenses for Immigrants & Green Card Holders?
If you are a non-US citizen or permanent resident green card holder that needs to know crime or DUI immigration consequences, this guide is for you.
Here our Los Angeles criminal defense attorney reviews US deportation laws, deportable crimes and how DUI drunk driving affects immigration status in 2019.
All non-US citizens, green card holders, F1 & H1B visas can be deported
Foreign nationals convicted of a “deportable crime” can be deported back to their home country by the Department of Homeland Security (DHS) and barred from re-entering the US for a number of years.
The risk of deportation applies to ALL non-US citizens, including:
Permanent residents, green card holders and other visa holders who have lived legally in the US for decades and own homes or well established businesses.
Workers in the US on L1, E2, O1 and H1B visas charged with DUI or crimes.
International F1 visa students and J1 exchange visa scholars in the US.
Illegal immigrants who entered the US illegally or stayed past their visa expiration.
DACA eligible children of undocumented immigrants.
Refugees that have been granted asylum.
Non-US citizens that have a dependent child who is a US citizen.
But hope is not lost. If you are a foreign national in trouble with federal agents or the police, or have DUI green card deportation issues, you should contact our experienced immigration and Orange County criminal defense lawyer immediately.
Our skilled attorneys know how to aggressively defend you from charges with the goal of avoiding criminal conviction and deportation altogether.
List of deportable offenses & crimes
The list of deportable offenses includes:
Aggravated felonies as defined in INA § 101(a)(43) (dozens of offenses).
Violent crimes, theft or forgery with imprisonment of at least 1 year.
Trafficking in guns, illicit drugs, humans or destructive devices.
Fraud, tax evasion, or money laundering with losses exceeding $10,000.
Rape, murder, kidnapping, child pornography or sexual abuse of a minor.
While the above are the most common under US law, the Immigration and Nationality Act (INA) Act 237 and INA § 101(a)(43) outline a long list of “crimes of moral turpitude” and “aggravated felony" convictions that form the basis for deportation laws in 2018-2019.
If convicted of these crimes an immigration judge will order the foreign national onto the immigration deportation list to be deported unless they apply for and receive a waiver of grounds of removal.
Frequently asked questions
What is a crime involving moral turpitude?
As defined in immigration law, a crime involving moral turpitude (CIMT) involves an act that is depraved, dishonest, or vile. Administrative case law has characterized moral turpitude as "a nebulous concept, which refers generally to conduct that shocks the public conscience." Some examples are rape, fraud, murder, arson, and assault with the intention to rob or kill.
A person may be deported if convicted of a CIMT within five years of admission to the US or if they commit 2 or more unrelated CIMTs at any time after they are admitted. A petty offense exception may apply if the penalty for the crime is less that 1 year.
What is an aggravated felony?
The list of crimes considered deportable aggravated felonies under immigration law (which is different from criminal law) is extensive and defined under INA § 101(a)(43). Congress frequently adds or changes the offenses on the list.
The list of deportable aggravated felonies includes:
Violent crimes, bribery, counterfeiting, forgery, racketeering, or theft with imprisonment of at least 1 year
Rape, murder, or kidnapping
Domestic violence, child pornography or sexual abuse of a minor
Owning or operating a house of prostitution
Fraud, tax evasion, or money laundering with victim losses exceeding $10,000
Trafficking in guns, illicit drugs, humans, destructive devices or explosives
Disclosure of classified government information
Conspiracy or an attempt to commit aggravated felonies
Treason, espionage or terrorism
Once you are convicted of a crime on the above aggravated felony list, it is very difficult to avoid being placed on the immigration deportation list unless you can prove it is more likely than not that you would be tortured if returned to your native country. These are deportable offenses for green card holders.
Can a green card holder be deported?
Being convicted of the above deportable criminal offenses can get a green card holder deported. An aggravated felony can be grounds for deportation of permanent residents and immigrants in the US on H-1B, F1 and other visas.
Not only can green card holders be deported, a waiver to return to the US after deportation will generally be unavailable for almost any purpose.
It is key for immigrants charged with crimes on the aggravated felony list to consult a top Newport Beach criminal defense attorney early on to seek all possible options to fight criminal charges to avoid deportation after felony conviction.
How do criminal charges affect DACA?
Any felony offense (jail time in excess of 1 year).
Driving under the influence (DUI).
Any domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or drug trafficking crime.
3 or more separate misdemeanor offenses.
Any other significant misdemeanor sentenced to more than 90 days jail.
The 90 days jail is calculated based on time served and would not include any suspended sentence.
USCIS statistics show that out of 888,765 DACA requestors:
53,792 DACA requestors were approved with a prior arrest (6%).
20,694 DACA requestors were denied with a prior arrest (2.3%).
What to do if charged with a deportable crime
It is critical to obtain both criminal and immigration legal counsel to develop your defense strategy and avoid a conviction that will permanently render you inadmissible to the United States. The US government has become more focused on deporting criminal immigrants. Depending on the facts, our Santa Monica criminal defense attorney will:
Work to get the charges dismissed,
Fight the charges in trial, or
Negotiate reducing the sentence or charge to a lesser crime that doesn't have the risk of deportation.
If you have been charged with a crime or DUI, contact us for help
Call 844 325-1444 for a Free confidential case review. It is critical to quickly evaluate both immigration and criminal defense strategies for best results.
DUI and immigration: Can you be deported for DUI?
The short answer has historically been no if you are lawfully in the US. In the 2004 US Supreme Court Leocal v. Ashcroft case, the court determined that a DUI or DWI is not a “crime of violence” and, therefore not an aggravated felony.
The Court also ruled that a crime of violence includes “a higher degree of intent than negligent or merely accidental conduct.” Therefore, a DUI conviction has generally not been a crime for which a legal alien has been deported. Crime of moral turpitude DUI deportation should not apply.
However, recent rule changes are causing serious DUI immigration consequences for nonimmigrants charged with a DUI or related offense if not handled properly.
DUI DACA deportation
DUI arrest causes visas to be revoked
In November 2015, the US Department of State (DOS) enacted a policy authorizing consular officers to automatically revoke the nonimmigrant visas of individuals (such as H1B, F1, O1 and L1 visas) arrested for, or convicted of DUI, DWI, or similar alcohol-related crimes. The DOS has issued guidance on this policy to clarify how it is to be implemented.
Prudential revocation of visas for DUI arrests
According to DOS Foreign Affairs Manual 403.11-5(B), DOS is authorized to "prudentially revoke" nonimmigrant visas such as H1B, F1, J1 and L1 visas on the basis of potential ineligibility for health related reasons when it is notified that a visa holder is subject to a "Watchlist Promote Hit" due to an arrest or conviction for a DUI or related offense.
How Visas are Revoked:
1) DOS notified of DUI arrests.
Under the DHS Secure Communities Program, when a nonimmigrant is arrested for a DUI or other crime and booked by local law enforcement, their fingerprints are submitted to the FBI for criminal history and warrant checks. Data is also sent to ICE and the DOS is notified if the person is in the US on a nonimmigrant visa. This process now typically occurs quite rapidly.
2) Arrest triggers visa revocation.
Depending on the nature of the arrest, consular posts can choose to revoke the foreign national’s visa by simply sending a mailed letter or email with a notification similar to the following:
"Please be advised that your (F1, H-1B, L-1A) visa has been revoked by the US Department of State in accordance with the US Immigration and Nationality Act.
This action is based on the fact that subsequent to visa issuance, information has come to light indicating that you may be ineligible to receive a visa, such that you should be required to reappear before a US consular officer to establish your eligibility for a visa before being permitted to apply for entry to the United States.
Note that you will be unable to travel on your current US visa. If you would like to travel to the United States, you must re-apply for a new visa."
It is important to note that DOS may revoke a visa simply on the basis of an arrest and determination of guilt is NOT required.
3) A revoked visa prevents reentering the US.
Once a foreign national’s visa is revoked, they cannot use the visa to enter the US without first reappearing before a US consular officer and re-establishing their visa eligibility. If a foreign national attempts to enter the US with a revoked visa, they will be flagged prior to boarding a flight, or denied entry into the US upon landing.
4) DOS requires physician review to consider reissuing visa.
DOS policy is to refer anyone with a single DUI arrest within the past 5 years, or two or more DUIs in the past 10 years, to a panel physician for evaluation. The prudential revocation policy serves as an extension of this practice, revoking a person’s visa if a DUI occurs after the visa is issued.
If the individual then leaves the US and wishes to return, a new visa application will be required, at which point the consular post abroad typically will refer the applicant to a panel physician for examination and certification.
Does a Prudential Visa Revocation Invalidate Status?
If a foreign national is already within the US, they may stay until the visa expires. Once a person enters the US, their immigration status is determined by their I-94 record. DOS, however, has issued notices to foreign nationals arrested for DUI related offenses requiring them to immediately depart the US and report to their consular office abroad. A visa revocation can be grounds for court ordered removal by Immigration and Customs Enforcement.
DOS policies raise concerns for foreign nationals
DOS’s prudential revocation policy causes significant potential concerns and risks for foreign nationals:
If a foreign national is arrested for a DUI, they need to work with a DUI defense lawyer to resolve the charges before leaving the country.
What happens if a foreign national no longer uses the email address provided to DOS when they applied for a nonimmigrant visa and they don't receive a revocation notice?
What if the foreign national was mistakenly arrested but the consular post was notified of the arrest anyways?
What if the foreign national is not guilty of the criminal charge and the charges are dismissed? Determination of guilt is not required by DOS in order to trigger a visa revocation.
J2 dependent visas subject to revocation as well
The DOS directive also states that “if a J1 visa is revoked, the DOS will usually revoke any J2 dependents’ visas as well.” This can cause serious issues for J visa families.
Can a DUI affect getting a green card?
If you are applying for a green card or permanent residence, a California DUI conviction can cause problems when trying to change immigration status. Immigration lawyers will tell you a DUI conviction can under some circumstances bar you from receiving a green card or from eventually becoming a US citizen. There can also be issues with DUI and green card renewal.
Can a permanent resident be deported for a DUI?
Aggravating factors can make a DUI deportable. The facts around each person's DUI can vary dramatically and will be taken into account during any immigration evaluation.
Some DUIs also involve an accident, reckless driving, injury to others, driving on a suspended license or other aggravating factors that lead to multiple convictions that could make you removable.
Another aggravating factor would be if the DUI was due to driving under the intoxication of illegal drugs such as those on the DEA list of controlled substances.
DUI arrests with severe aggravating factors risk creating deportable offenses for green card holders. Federal immigration interpretation of state criminal convictions can vary as many determinations are subject to the interpretation of different agents and judges. Each case needs to be carefully evaluated for risks in how an immigration evaluation would look at the conviction and immigration status.
Our experienced immigration and DUI defense attorneys will evaluate the specific facts to your case and know how to advise and defend you for the best possible case outcome.
Can a DUI prevent me from becoming a US citizen?
The process of going from having a green card to becoming a US citizen includes an application and examination process that includes a test of “good moral character” for the 5 years prior to the application. A DUI conviction on your record can complicate that, especially if there are aggravating factors.
It is generally a good idea to allow some time to pass from the DUI with a clean driving record and to follow any court instructions carefully. That includes any prescribed treatment. It is advisable to consult with an experienced attorney to review the specific facts for your case.
Last updated 9.3.19
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About the Author
Tsion Chudnovsky is a criminal defense and immigration lawyer and founder of Chudnovsky Law, a California criminal defense law firm. Chudnovsky Law offers a rare team of experienced multi-lingual immigration attorneys and top criminal defense attorneys.
The intersection between immigration and criminal law is one of the most complex and technical areas of US law. Tsion is recognized as a leader in criminal defense for non-US citizens from all countries and addressing the immigration consequences of criminal charges, H1B visa deportation, green card deportation risks and problems from having visas such as H-1B revoked.