Is an Immigrant Convicted of a Felony Always Deported From the U.S.?

If you are a foreign national in the United States who has been convicted of a felony, you have cause to worry that you might be deported (removed) from the country. There are actually two issues to worry about, depending partly on whether or not you were in the country in valid, documented legal status to begin with. These include:

• whether you will come to the attention of U.S. immigration authorities, and
• whether your crime is on the list of offenses that make a foreign national deportable.

Here, we will discuss both issues, and acquaint you with your rights and possible next steps.

How Criminal Acts Come to the Attention of U.S. Immigration Enforcement Authorities

Once you have been arrested, jailed, or imprisoned in the United States, regular communication between law enforcement personnel and immigration authorities make it likely (though not guaranteed) that the latter will learn of your arrest and that you are not a U.S. citizen.

Upon so learning, they might put an immigration "hold" on you. This means that as soon as you were about to be released from jail or prison, you will instead be transferred into U.S. immigration custody. There, you are likely to face immigration court proceedings in front of a judge, and dealing with an attorney who represents the U.S. government in seeking your deportation.

If you are not in the United States with a valid visa or green card, your removal (voluntarily or otherwise) is highly likely at this point—but consult an attorney just in case.

If you do have a green card already, you might be able to defend yourself in court, but see the next discussion for more detail.

When Crimes Can Lead to Removal of Foreign Nationals

If you are in the United States without permission (you are undocumented or overstayed a visa), there will be little need for U.S. immigration authorities to analyze how serious your crime was. They can simply place you into removal proceedings because you are not supposed to be here.

However, even if you already have a U.S. green card, or are here with unexpired permission under the terms of a nonimmigrant visa or something similar, a number of types of crimes can make you deportable. This could potentially lead to your forced departure from the United States and revocation of your visa or lawful permanent resident status. U.S. immigration statutes (I.N.A. § 237) both list a few specific crimes and broadly describe other categories of offenses that can lead to deportation.

For example, some crimes of "moral turpitude" (CIMTs) and crimes involving controlled substances, firearms, and domestic violence, as well as "aggravated felonies," are among those that make a foreign national removable. What is an aggravated felony? It can include everything from murder, rape, and sexual abuse of a minor to other crimes involving violence, theft, drug trafficking and weapons trafficking, and more.

Many of the crimes that U.S. immigration authorities have interpreted as "aggravated felonies" were actually called "misdemeanors" by the state court that convicted the person. State and federal law don't always match up nicely, leading to arguments between lawyers defending immigrants and the government attorneys trying to deport them. The message here is that you will need an attorney's help to figure out whether your crime is, indeed, a ground of deportability.

See an Immigration Attorney

The specifics of what constitutes a deportable offense are often based individual facts and recent case law within a particular state or federal jurisdiction. If you have been convicted of a felony, or indeed any crime, you would be best served to contact an immigration attorney for a full analysis and possible defense against removal from the United States.

And if you are still facing criminal charges, call an immigration attorney right away. Your criminal defense lawyer might not realize the various ways in which your conviction, guilty plea, or sentencing will impact your immigration status. The attorney might, for example, urge you to plead guilty to a crime in exchange for a low sentence, forgetting that the guilty plea might get you deported as soon as you've served your time. With an immigration attorney's help, you might be able to negotiate a result that is less harmful to your rights as a U.S. immigrant.