Articles Posted in Deportation

The government has a removal proceeding in the United States to remove a non-citizen, or alien, from the country. There are different forms of deportation; voluntary deportation is when an alien leaves the country of his or her own accord and at his or her own expense within a certain amount of time, while deportation is when the government orders removal of an alien from the United States after the removal proceedings and at the cost of the state.

Types of Voluntary Departure

Two types of voluntary departure exist, both permits the alien to leave the United States within a time period and at their own expense.

An immigrant convicted of theft is deportable if the theft is considered an aggravated felony. These immigrants include any noncitizen of the U.S (valid visa holders and green card holders). For a case with an undocumented immigrant with no lawful status that’s convicted of theft, that alone can be the basis of deportation, not act of theft itself.

Immigration law contains a list of crimes which make an immigrant subject to deportation due to moral turpitude, and although theft is not included separately, it is included in the list of crimes that are considered aggravated felonies. Complications arise when the realization of theft, most often prosecuted under state law, are being judged using Federal statutes to determine severity. The result is that a crime of theft that may be considered a misdemeanor in the state court where it is prosecuted could be considered, and in some cases, to be an aggravated felony for federal immigration purposes. This is due to the varying standards applied by immigration law.

The benchmark for considering a crime of theft an aggravated felony is that the convictions of theft, receipt of stolen property, or burglary could have a sentence of at least one year. Immigration law can be complex when considering the interaction of state and federal statutes and it is often difficult to state any rule with certainty. A crime that is less serious in other contexts, such as a minor theft, could be elevated to an aggravated felony in the eyes of the immigration authorities and result in deportation.

In Michigan, pursuant to Michigan Compiled Law 791.234b, a prisoner who has a final order of deportation against him or her by the United States Immigration and Naturalization Service may be paroled after serving at least 1/2 of the minimum sentence imposed by the Court.  Persons who have been convicted of first degree homicide, second degree homicide, first degree criminal sexual conduct, second degree criminal sexual conduct, third degree criminal sexual conduct, and/or as a habitual offender are not eligible for this relief.

The parole board will not place a prisoner on parole under this section of the law unless it received from the United States immigration and naturalization service assurances that an order of deportation will be executed or proceedings will promptly commence for purposes of deportation upon release from the Michigan Department of Corrections and that the person will not be released from custody for any reason other than deportation, unless the United States immigration and naturalization service provides to the Michigan Parole Board a reasonable opportunity to be returned to the Michigan Department of Corrections.
A prisoner granted this relief will be placed on parole for a period equal to the remaining balance of his or her maximum sentence.  If the prisoner returns illegally to the United States at any time prior than the expiration of the maximum term of parole, a warrant shall be issued to apprehend the individual and the individual’s parole shall be revoked.  A prisoner returned under this provision of the law is not eligible for parole or any other release from confinement during the remainder of his or her maximum sentence.  Hence, the repercussions for illegally returning to the United States after being granted this benefit are potentially quite severe.

Retail fraud is classified as a crime involving moral turpitude under United States immigration law. As a permanent resident in the United States, when you have a conviction of retail fraud, your immigration status will possibly be impacted in three aspects with that conviction. First, you may be deportable.  Second, you may be inadmissible at the time of return after travelling overseas. Third, the conviction can affect your application for naturalization.

Deportability

Whether you are deportable with a retail fraud conviction depends on the maximum sentence carried under the status you are convicted and also upon how long you have been a permanent resident. If the retail fraud occurs within 5 years of your admission to the US, and the statute which you are convicted of carries a maximum sentence of one year or longer, you are deportable.

Victims of crime may become eligible for immigration benefits, such as obtaining lawful permanent residence and citizenship, through different provisions of United States Immigration Law.  To seek these provisions, if is highly recommended that you are represented by an experienced immigration lawyer, such as attorney Sufen Hilf.

1. VAWA (Violence Against Women Act), a spouse, parent, or child who is suffers extreme cruelty or battery may file a self petition for lawful permanent resident status.  This can be done without the knowledge of the abuser. Despite the name of this immigration law, it applies to both men and women
2. Cuban Adjustment Act – applies to abused spouses of Cubans

When removal proceedings commence, the success of your immigration attorney may be determined by Motions filed on your behalf.  The following is a list of potential pre-hearing motions to consider, however some or all of the following Motions may not be applicable to your particular case.  With regard to any Immigration Court proceeding your best bet is to hire an experienced lawyer, such as Attorney Sufen Hilf.
Motion to Extend Time to Submit Documents, Applications, Briefs, etc. – The Immigration Court will want an affidavit of counsel, or other proof of the reason to grant the extension.  This may be necessary if a new immigration attorney has substituted in to address issues neglected by prior legal counsel, or to supplement the case because new information became available.  Delay is sometimes necessary to give the respondent more time for another avenue of immigration relief to open.
Motion to Continue the Hearing Date – a good reason must be provided to the Immigration Court for the continuance.  As stated above, sometimes delay is necessary to give more time for another avenue of relief to open, or simply to allow the respondent more time to stay in the United States.

The following are summaries of different types of Immigration relief from removal that are discretionary, and is not intended to serve as the substitute from seeking the advice of a competent immigration lawyer, such as the attorneys at Hilf & Hilf, PLC.

If during Immigration proceedings an alien is found to be removable, he or she can request different forms of discretionary relief.  The alien has the burden of proving that he or she is eligible to receive the requested form of relief under United States law, and that a hearing officer or Immigration Judge should exercise his or her discretion to grant the requested relief.
Voluntary Departure – Voluntary departure is different from simply leaving the United States.  One way of receiving voluntary departure is to make an agreement with Immigration and Customs Enforcement (ICE) prior to removal proceedings.  A second option for voluntary departure involves going to the Court and requesting voluntary departure.  The Court request can be made at anytime during the deportation proceedings.  If the Court grants the relief, the alien is asked: to confirm that this is what he or she wants to do; if the alien has any arrests and criminal convictions;whether previously the alien has been removed before or voluntarily departed before; whether or not the alien has a passport; whether or not the alien has the financial ability to pay for transportation from the United States; the date that the departure will occur (it has to be within 120 days).  Voluntary departure will not be granted to person that are deportable as an aggravated felon or as a terrorist.

An allegation of a controlled substance offense against an alien can have severe immigration consequences.  Depending on the circumstances, it can result in: ineligibility to enter or re enter the United States; ineligibility to obtain a green card; inability to become a naturalized United States citizen; deportation; mandatory detention.  When such an allegation arises, it is important that the alien has an experienced criminal defense attorney that can work hand in hand with an experienced immigration lawyer.

Aliens, even those living in the United States as a lawful permanent resident, is considered to be applying for admission whenever returning from abroad to the United States.  An alien that is applying for adjustment of status is also considered applying for admission.  When applying for for admission, even the mere acknowledgment of criminal activity can deny the alien residency and permission to enter or re enter the United States.
For deportation, the Immigration Court looks as to whether the alien was convicted, and the nature of the offense.  The criminal defense lawyer’s ability to reach a plea bargain that does not impact the alien, or which makes the alien eligible for a waiver, is often the only solution.  If the alien was convicted, the criminal defense lawyer may attempt to set aside the conviction by reaching a resolution with the Prosecution, seeking relief from judgment from the criminal sentencing Court, or appealing the conviction.  One recent avenue of relief is for the alien to challenge the conviction because he or she was not adequately informed with the immigration consequences of the plea.  For these types of situations, you should hire a law firm that has experience and expertise in both criminal defense and immigration law, such as Hilf & Hilf, PLC.

The United States deported 393,000 people according to an associated press article published on July 22, 2011.  Of the persons deported, half were for criminal offenses including drunk driving.  The number of drunk driving related deportations have doubled since the last year of the Bush administration in 2008.  13,028 were deported last year for less serious traffic law violations, which is triple the number of persons deported two years earlier for the same conduct.  This contradicts claims made by the Obama administration that they were focusing on deportation for violent offenders, and not families or individuals “looking to scrape together an income”.  Under Trump, this is likely to get much worse.

The majority of the deportations last year (45,003) were for immigrants that committed drug related offenses.  Drunk driving was the third leading cause of deportations last year.  This number does not reflect immigrants that are currently incarcerated in jail or prison that will eventually be deported for criminal offenses.
Some of the persons considered as criminals were stopped for traffic offenses that usually only result in a ticket.  The lack of a drivers license (which is a misdemeanor in Michigan), results in the police officer sometimes pursuing questions related to immigration status.  These traffic offense related deportations account for 7 percent of the total criminal deportations last year.  Drug offenses comprised 23 percent, and drunk driving comprised 14 percent of the criminal deportations last year.

There are several reasons why a alien may face the possibility of deportation:

1.  Aggravated felony – there are serious felony offenses, defined by immigration law, that make the alien subject to deportation.
2.  Crimes Involving Moral Turpitude – there are statutorily designated offenses that subject a noncitizen to removal or deportation. It is defined by the Board of Immigration Appeals as conduct which 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.  Examples of crimes of moral turpitude include assault, domestic violence, drug possession and selling offenses, rape, child abuse, fraud, etc.