This article deals with the basic issues concerning the impact that a criminal conviction could have upon a resident or non- resident alien. A resident alien is an individual who, for the purposes of this article has the right to live and work permanently in the United States of America. A non-resident alien includes any other alien who is not a resident alien, such as tourists, students, temporary workers, and other holders of Visas of a definite duration, whether or not the holder of such Visa has overstayed the terms of such Visa.

8 CFR §1251(Immigration and Nationality Act §241, herein after “INA”) lists the various classes of deportable aliens. While INA §241 lists a plethora of grounds for deportability of an alien, this article concentrates only on deportation for criminal offenses as set forth under INA §241 (a)(2). Under INA §241 (a)(2)(A), an alien is deportable for general crimes, including crimes of moral turpitude, multiple criminal convictions, and aggravated felonies. An alien may also be deportable for violation of any law irregulation of a State, the Federal Government, or a foreign country relating to a controlled substance. Even a drug abuser or a addict is deportable. INA §241 (a)(2)(B). Any violation of any law concerning fire arms or destructive devices in so far as the purchase, sale, exchange, use, possession, carrying, or ownership of a fire arm or destructive device is a deportable defense. INA §241 (a)(2)(C). Finally, a “catch-all” provision, INA §241 (a)(2)(D), which lists as deportable offenses, crimes of espionage, treason, or violation of the Military Selective Service Act, among other crimes, as deportable violations.

Any criminal conviction must be final to incur deportation consequences. If the matter is an appeal, the conviction is not yet final for the purposes of deportation. Pino v. Landon, 349 U.S. 901(1955). Note also that a negotiated reduction in the degree of the offense from a felony to a misdemeanor would still have deportation consequences. For example, an alien is deportable if convicted of a crime involving moral turpitude within five years after entry, and which results in a sentence to confinement or actual confinement in prison for one year or more. Therefore, even a suspended sentence, where the alien may be placed on probation may still be considered deportable if it meets the two-pronged test of INA §241 (a)(2)(A)(i). But it gets even worse. Under INA §241 (a)(2)(A)(ii), an alien is deportable if convicted of two crimes involving moral turpitude, and those crimes did not arise out of a single scheme of criminal misconduct.

It may generally be agreed that deportation is certainly a draconian punishment, especially for those resident aliens who have established themselves and their families in the United States for years. However, assuming that a well represented alien is finally convicted, what happens next? The INS has a system whereby it issues deportation notices to convicted aliens, as and when those cases are brought to the INS’s notice. There is no time limit on the amount of time that may pass between the final conviction and the issuance of the order to show cause by the INS. Therefore, OSC’s may be issued months or even years later. How does the INS find out about an alien’s criminal conviction? The INS obviously would hear about important cases involving aliens, and may perhaps be involved in the investigative “sweep” which actually picks up the alien. Alternatively, an informant may advise the INS of an alien’s conviction, thereby triggering an investigation and an issuance of an OSC by the INS.

Once the OSC has been issued, the alien can then either voluntarily depart the United States, ask for extended departure until a specific date, or chose to respond to the OSC and deny the charge of deportability. If, perchance, a final order for deportation is issued, the alien has the ability to pursue further appeals, first at the level of the Board of Immigration Appeals and subsequently through the Federal Court System.

It is also important to understand that once an underlying criminal conviction has become final, an alien may not collaterally attack such underlying criminal conviction in deportation proceedings. Brown v. INS, 856 F 2d 728 (5th Cir. 1988). Accordingly, it is essential to insure that the alien has been accorded all rights and protections which may be accorded under the law. For example, in Ohio, it is necessary for a Court to advise a Defendant who pleads guilty or no contest to a felony or a misdemeanor charge, that conviction may result in the Defendant’s deportation, exclusion, or denial of Naturalization. O.R.C. §2943.031. Additionally, the stakes for the alien are a lot higher than the stakes for a U.S. Citizen, because if the alien is convicted, the alien faces deportation, whereas if the U.S. Citizen is convicted, the citizen faces only probation or perhaps imprisonment (which may perhaps be a form of punishment even worse that deportation, depending on one’s point of view!). Accordingly, all the way from the initial plea bargain and negotiation stage, through the trial stage and into the appellate process, the defense attorney must be aware to take such steps as would not only be to the benefit of the alien in the criminal proceeding at the State level, but must also take these steps with a view to mitigating the immigration consequences of a criminal conviction.