With immigration a big topic in the news, many are confused about who exactly can be deported from the United States. It goes without saying that someone who is in the US without going through the proper channels, i.e., no visa allowing entry (undocumented), can be deported in most instances. Exceptions might be made on humanitarian grounds for example for asylum seekers and people who were born in another country but brought to the U.S. as children.
This post is about those who can be deported even though they are in the U.S. legally, whether on a visa, a resident alien, or categorized as an asylum seeker waiting approval or those who have been allowed to stay pending review of their particular case.
Recently the deportation of an Arizona woman who was in the country without a visa, but was allowed a provisional stay under an Obama-era program that allows those who came to the U.S. as children to remain in the U.S. as long as they check in with Immigration authorities on a regularly scheduled basis, hit the news. She had been convicted years ago of fraud for using a fake social security number. When she went for her regularly scheduled check-in with immigration authorities, she was detained and promptly deported.
So, what gets someone deported who might otherwise be in the United States lawfully? This is the purview of the federal government and is governed by the United States Code. The law states that anyone who is not a citizen, even a resident alien (someone with a green card) is deportable if they commit a crime of “moral turpitude.” This terminology, crime of moral turpitude, dates back to the early 1800’s and is ambiguous to say the least. It refers to crimes that are considered “contrary to community standards of justice, honesty or good morals” or “conduct that shocks the public conscience.” Sounds like a moving target.
In the case of the Arizona woman, her crime was relatively minor: using a fake social security number to get a job. But this is considered a crime of moral turpitude since the courts hold that a crime that has as an element the intent to defraud is a crime of moral turpitude.
Over the years, the federal courts have interpreted this legal standard to encompass many different crimes. There is now a list of crimes that are included, but some crimes, such as certain DUIs, fall into a gray area. Crimes that are included are any aggravated felony, drug convictions, firearm convictions, and domestic violence convictions.
The crimes that can get a person deported is a long list; it would be simpler to list the crimes that don’t trigger deportation. For example, even though the term “aggravated felony” sounds as though we’re talking serious crimes here, that is not always the case. Some misdemeanors have qualified for deportation under this category and even DUIs under extenuating circumstances such as a DUI while driving with a suspended license.
Many non-citizen residents of California who are in the United States legally, especially green card holders, believe that if they petition to have the conviction expunged under California law, they will not be exposed to potential deportation. That is not true. The federal courts have firmly held that state rehabilitative expungement of convictions are still convictions for deportation purposes. In other words, even if the state “expunges” a conviction, it is to the federal courts still a valid and actionable conviction.
Criminal defense attorney William Weinberg is available to consult with you regarding any criminal matter. You can reach him at his Irvine office at 949-474-8008 or email him at firstname.lastname@example.org.