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January 10, 2023 Guest Column

Potential Collateral Consequences for a Noncitizen with a State Criminal Conviction

Jeffrey E. Blivaiss

An individual without US citizenship, including a lawful permanent resident (i.e., a green card holder), may be subject to removal from the United States due to a state criminal conviction. Firearms possession, controlled substance possession and distribution, and the commission of “crimes involving moral turpitude” are examples of offenses that constitute grounds for removal under the Immigration and Nationality Act (Act or INA) for a noncitizen present in the United States. See INA § 237(a)(2)(A), (B), (C) (codified at 8 U.S.C. § 1227(a)(2)(A), (B), (C)). Even certain acts that evidence a crime involving moral turpitude (CIMT), or give an immigration official “a reason to believe” that a noncitizen is an illicit trafficker in controlled substances, may subject that noncitizen to removal despite no criminal conviction that constitutes a removable offense. See, e.g., id. § 212(a)(2)(A)(i)(I), (C)(i) (codified at 8 U.S.C. § 1182(a)(2)(A)(i)(I), (C)(i)). But in 2010, the US Supreme Court held in Padilla v. Kentucky, 559 U.S. 356 (2010), that a noncitizen defendant receives ineffective assistance of counsel when that noncitizen is not properly advised as to the immigration consequences of such a conviction. So how does a state prosecutor ensure that a defense attorney complies with Padilla while protecting the public interest by obtaining punishment against a criminal?

First, even lawful permanent residents (LPRs) can be subject to removal based on certain convictions that occur after obtaining LPR status. Normally, an LPR returning to the United States would not constitute an “applicant for admission,” but an LPR falls within the definition of an applicant for admission when the LPR commits an offense identified under INA § 212(a)(2) (codified at 8 U.S.C. § 1182(a)(2)). This includes offenses like simple possession of a controlled substance (even marijuana) and petit larceny.

Second, in certain circumstances, the potential term of imprisonment imposed on a noncitizen defendant affects whether that noncitizen can be charged with removability or eligibility for certain forms of relief from removal, but in other circumstances the actual term of imprisonment received by the noncitizen defendant affects removability. Compare id. § 212(a)(2)(A)(ii)(II) (codified at 8 U.S.C. § 1182(a)(2)(A)(ii)(II)) (providing an exception for removability for a CIMT conviction where the maximum penalty for the crime does not exceed one-year imprisonment), with id. § 101(a)(43)(F) (codified at 8 U.S.C. § 1101(a)(43)(F)) (defining an aggravated felony as a crime of violence in which the term of imprisonment is at least one year). Generally, a noncitizen defendant will not be removable if the term of imprisonment is less than 365 days. The New York state legislature took matters into its own hand in 2019, as part of their fiscal-year budget, by enacting the One Day to Protect New Yorkers Act, which reduced the maximum penalty for a Class A misdemeanor under New York law to 364 days. Members of the New York state legislature indicated that the enactment of this law was to benefit the large immigrant population in New York. In other jurisdictions, if prosecutors seek sentences for 365 days or more, it could render noncitizens removable from the United States for an applicable conviction.

Lastly, even if a noncitizen pleads guilty to an offense that does not render the noncitizen removable from the United States, the underlying criminal conduct may still be relevant if they seek discretionary relief from removal. See Matter of Devison, 22 I&N Dec. 1362 (BIA 2000). At issue in Matter of Devison was a youthful offender adjudication, which were previously held to not constitute a conviction under the Act. See Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981) (holding that an adjudication of juvenile delinquency is not a conviction for a crime within the meaning of the Act); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981) (same). The Board of Immigration Appeals, the appellate immigration court, reaffirmed that such offenses were not convictions and could not support a ground of removability. See Matter of Devison, 22 I&N Dec. at 1368–73. But the underlying facts of a youthful offender adjudication or juvenile delinquency charge can still be raised when the noncitizen seeks any form of discretionary relief from removal, which balances positive equities against negative factors present in the noncitizen’s life. See Matter of C-V-T-, 22 I&N Dec. 7, 11 (BIA 1998) (setting forth the standard for determining discretionary relief). The same would be true for convictions like harassment or disorderly conduct that stem from more serious offenses like assault or controlled substance possession. Similarly, very few state offenses that solely punish driving while intoxicated or impaired constitute removable offenses, but such conduct is relevant when the noncitizen needs to establish good moral character or eligibility for discretionary relief. See Matter of Castillo-Perez, 27 I&N Dec. 664, 669–70 (A.G. 2019) (holding that evidence of two or more convictions for driving under the influence during the relevant period establishes a presumption that a noncitizen lacks good moral character and may not merit a favorable exercise of discretion); Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018) (holding driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings). Thus, even though a noncitizen defendant’s ultimate conviction may not constitute a removable offense, the underlying conduct may still be considered as to whether a noncitizen merits a favorable exercise of discretion.

In sum, noncitizen criminal defendants are entitled to effective assistance of counsel such that they receive proper advice as to the immigration consequences of an offense to which he or she may plead guilty. However, even lawful permanent residents may be subject to removal for state criminal convictions. And, lastly, even if the noncitizen is convicted of an offense that does not render him or her removable, the underlying criminal conduct may be considered during an administrative immigration proceeding to determine whether the noncitizen merits a favorable exercise of discretion for a benefit sought in lieu of his or her removal.

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Jeffrey E. Blivaiss


Jeffrey E. Blivaiss is an attorney with the United States government; he has 20 years of experience in the area of immigration law. The views expressed in this article are personal and are not endorsed by or representative of any US government department or agency.