*UPDATE: Recent changes to the NC expungement law will take effect December 1, 2017. Find out how these changes could affect your criminal charges to see if you will qualify for an expungement.*
The United States Immigration and Customs Enforcement (ICE) removed 315,943 non-citizens from the United States in 2014. According to www.ice.gov, 56 percent of all ICE removals, or 177,960, involved non-citizens who were convicted of a crime.
Do You Know the Immigration Consequences of Your Criminal Case?
As a Wake County, NC criminal defense attorney, I am seeing more and more noncitizen clients and it is very important that myself and other criminal defense attorneys understand the potential immigration consequences for our clients and to advise them of such. Defense attorneys are likely the only ones who will advise their clients of potential immigration consequences of their criminal cases.
Does North Carolina Require Notification of Immigration Consequences?
North Carolina statutes only require that a judge provide a general advisement to a defendant before accepting a guilty plea, warning the defendant that the conviction may carry adverse immigration consequences, which does not include any explanation of what these consequences may include.
To be honest, the only time I see a judge do this is during a felony plea, which are not the only convictions that can result in adverse immigration consequences for a noncitizen. There are certain misdemeanor convictions that can result in removal or disqualifications for citizenship and I don’t believe that I have ever heard a judge advise noncitizen defendants of these consequences.
What Penalties Will be Given for a Conviction?
In addition to removal, a criminal conviction can disqualify a person from legalizing their status, from becoming a U.S. Citizen, from obtaining a grant of asylum, and from raising various defenses against deportation.
There are different categories of criminal offenses that result in deportation, which are determined by the Immigration and Nationality Act (INA). The criminal grounds of deportation generally require that a conviction exist.
For citizens, a conviction exists once someone pleads guilty or has been found guilty; this is not necessarily the case for convictions for immigration purposes. In the state courts, there are sometimes alternatives to a conviction, such as drug treatment court, deferral of prosecution, expungement, and prayers for judgment continued, all of which can be treated as convictions for immigration purposes.
Principle Categories of Deportable Offenses
1) Aggravated Felony – includes felonies and some misdemeanors. These convictions carry the most severe immigration consequences. There are 21 broad categories of offenses considered “Aggravated Felonies”.
2) Crimes involving moral turpitude – As a general rule, a crime involves “moral turpitude” if it is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. This is a very broad category of criminal offenses and generally includes: offenses in which either an intent to steal or defraud is an element (such as theft and forgery offenses); many aggravated assaults; most sex offenses.
3) Conviction relating to a controlled substance– includes felonies and misdemeanors, as well as drug paraphernalia offenses.
4) Firearm conviction – includes purchasing, selling, offering for sale, exchanging, using, owning, possession or carrying a “firearm or destructive device.” The deportable conviction can be felonies or misdemeanors and also includes carrying a concealed gun.
5) Conviction of domestic violence, stalking, child abuse, child neglect, or child abandonment – includes felonies and misdemeanors; the domestic violence crime must be a crime of violence; the domestic violence crime must be directed against a protected party under state or federal domestic violence laws.
6) Violation of a protective order – violation of the portion of the order that protects against credible threats of violence, repeated harassment, or bodily injury; violation may be found in civil or criminal court.
Are You Facing Deportation for a Criminal Offense?
If you are facing removal from the United States due to a possible criminal conviction, it is extremely important that you contact an attorney who is aware of the consequences of such conviction.
Attorneys at Kirk, Kirk, Howell, Cutler & Thomas, L.L.P. are capable of assisting you with these charges that have serious consequences. Call 919-615-2473 or Request a case review today! We look forward to helping you with your legal needs!
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