Outline of the Article

1. Introduction
   • Importance of Understanding Immigration and Crime Interactions
   • Overview of Post-Conviction Relief Measures
2. Understanding Post-Conviction Relief
   • Definition and Types of Post-Conviction Relief
   • Common Forms of Post-Conviction Relief: Expungement, Vacatur, Reduction of Sentences
3. Immigration Law vs. State Criminal Law
   • Differences Between State and Federal Law
   • Importance of Federal Immigration Law in Deportation Cases
4. Attorney General Barr’s 2019 Decision
   • Overview of Matter of Thomas and Thompson
   • Impact of the Decision on Immigrants
5. Criteria for Immigration Law Considerations
   • Procedural vs. Substantive Defects
   • Effects of Rehabilitation and Hardship Reasons on Immigration Law
6. Crimes of Moral Turpitude (CMT)
   • Definition and Examples
   • How CMTs Affect Immigration Status
7. Petty-Offense Exception
   • Explanation of the Petty-Offense Exception
   • Examples of Crimes Falling Under This Exception
8. Deportation for Crimes of Moral Turpitude
   • Conditions Leading to Deportation
   • Impact of Timing and Number of Crimes
9. Determining Deportability
   • The Five-Year Rule
   • Multiple Crimes and Single Scheme of Misconduct
10. Waivers for Crimes of Moral Turpitude
    • Explanation of 212(h) Waivers
    • Conditions for Eligibility and Success Factors
11. Aggravated Felonies
    • Definition and Examples
    • Consequences of Aggravated Felony Convictions
12. Other Deportable Crimes
    • Overview of Additional Deportable Crimes
    • Intersection with CMTs and Aggravated Felonies
13. Strategies for Defense
    • Importance of Legal Representation
    • Common Defense Strategies
14. Case Studies
    • Example Cases and Outcomes
    • Lessons Learned
15. Conclusion
    • Recap of Key Points
    • Final Thoughts on Navigating Immigration and Criminal Law
16. FAQs
    • What is a crime of moral turpitude?
    • Can a vacated conviction still affect my immigration status?
    • How does the petty-offense exception work?
    • What are my options if I’m facing deportation for a CMT?
    • Can I apply for a waiver if I have an aggravated felony?

Do Crimes “Count” Against the Immigrant That Were Later Vacated, Expunged, or Changed by Other Post-Conviction Measures?

Introduction

Navigating the intricate world of immigration law can be daunting, especially when past criminal convictions come into play. For immigrants, understanding how crimes, even those later vacated, expunged, or altered by post-conviction measures, impact their status is crucial. This article delves into the nuances of how federal immigration law views such crimes and the implications for immigrants.

Understanding Post-Conviction Relief

Post-conviction relief refers to legal procedures that allow individuals to seek a reduction or elimination of the consequences of their criminal convictions. Common forms include expungement (removing the conviction from public records), vacatur (overturning the conviction), and reduction of sentences. These measures aim to help individuals rehabilitate and reintegrate into society without the burden of a criminal record.

Immigration Law vs. State Criminal Law

While state criminal law governs the initial conviction and subsequent relief, federal immigration law often takes precedence in deportation cases. This disparity means that even if a state court clears or reduces a conviction, it might still impact immigration status under federal law.

Attorney General Barr’s 2019 Decision

In the landmark 2019 decision, Matter of Thomas and Thompson, Attorney General Barr clarified that state-court orders modifying or vacating convictions or sentences would only affect immigration status if based on procedural or substantive defects in the original case. Changes based on rehabilitation or immigration hardship are disregarded for immigration purposes, emphasizing the stringent standards federal law applies.

Criteria for Immigration Law Considerations

For a state court’s order to influence immigration status, it must address fundamental issues with the initial conviction, such as violations of legal procedures or the presence of new, substantive evidence proving innocence. Orders based on reasons unrelated to the merits of the case, such as personal rehabilitation, hold no weight in immigration courts.

Crimes of Moral Turpitude (CMT)

Crimes of moral turpitude (CMT) are broadly defined as offenses involving fraud, larceny, or intent to harm persons or property. These include crimes like theft, assault with intent to harm, spousal abuse, and aggravated DUI. Convictions for CMTs can severely impact an immigrant’s ability to stay in the U.S., leading to potential deportation.

Petty-Offense Exception

The petty-offense exception provides relief for immigrants convicted of minor crimes. If the maximum penalty for the crime does not exceed one year of imprisonment and the actual sentence served was less than six months, it might not be classified as a CMT. Examples include shoplifting and simple assault, provided they meet the criteria.

Deportation for Crimes of Moral Turpitude

Immigrants can face deportation for CMTs under two primary conditions: committing a CMT within five years of admission to the U.S. or committing multiple CMTs at any time. This makes understanding the timing and nature of offenses crucial for immigrants and their legal counsel.

Determining Deportability

To determine deportability, one must consider the date of the crime relative to the date of admission to the U.S. If a CMT was committed within five years of entry, deportation proceedings could be initiated. For multiple CMTs, the offenses must arise from separate incidents to be considered for deportation.

Waivers for Crimes of Moral Turpitude

A 212(h) waiver offers a potential reprieve for some immigrants facing deportation due to CMTs. To qualify, one must not pose a national security threat and must show that deportation would cause extreme hardship to a U.S. citizen or lawful permanent resident family member. The waiver also requires proving rehabilitation and a deserving character.

Aggravated Felonies

Aggravated felonies, as defined by the Immigration and Nationality Act, include serious crimes such as murder, rape, and drug trafficking. Convictions for aggravated felonies have severe consequences, often leading to immediate deportation without the possibility of returning to the U.S. except under very limited circumstances.

Other Deportable Crimes

Besides CMTs and aggravated felonies, other crimes can lead to deportation. These include drug offenses, illegal firearms possession, domestic violence, and terrorism-related activities. Each category carries its own set of legal challenges and implications for immigration status.

Strategies for Defense

Defending against deportation requires skilled legal representation. Common strategies include challenging the classification of the crime as a CMT, proving the crime arose from a single scheme of misconduct, or applying for waivers based on hardship or rehabilitation. Each case is unique, demanding tailored legal approaches.

Case Studies

Consider the case of Maria, who was convicted of shoplifting, a minor offense, within three years of her arrival in the U.S. Despite her record being expunged, immigration authorities still initiated deportation proceedings. Her legal team successfully argued that her offense fell under the petty-offense exception, preventing her deportation.

Conclusion

Understanding the intersection of criminal convictions and immigration law is vital for immigrants seeking to navigate their legal status in the U.S. While post-conviction relief measures offer hope, their impact on immigration status remains limited under federal law. Immigrants must seek knowledgeable legal counsel to effectively manage these challenges and protect their rights.

FAQs

1. What is a crime of moral turpitude? A crime of moral turpitude involves actions that are inherently dishonest, fraudulent, or intended to harm others, such as theft or assault with intent to harm.
2. Can a vacated conviction still affect my immigration status? Yes, if the vacatur was not based on a procedural or substantive defect in the original case, it may still impact immigration status under federal law.
3. How does the petty-offense exception work? The petty-offense exception applies if the crime’s maximum penalty is less than one year and the actual sentence served is under six months, potentially preventing it from being classified as a CMT.
4. What are my options if I’m facing deportation for a CMT? Options include applying for a 212(h) waiver, proving the crime falls under the petty-offense exception, or demonstrating that deportation would cause extreme hardship to family members.
5. Can I apply for a waiver if I have an aggravated felony? Generally, no waivers are available for aggravated felonies. However, in cases where deportation would result in torture in the home country, legal defenses may be possible