A non-US citizen may be deported for a misdemeanor offense in some situations. Conviction of a misdemeanor doesn’t qualify for automatic removal from the United States, but it should be taken seriously and discussed with an immigration attorney.
That said, the chances of a legal resident being deported over a misdemeanor are pretty low. The decision as to whether the government should pursue deportation is discretionary and depends on a number of factors, with the classification and gravity of the crime playing large roles. It’s safe to say that Immigration & Customs Enforcement (ICE) agents are looking for big cases that can advance their career, and legal residents who are charged with a simple misdemeanor don’t typically fit that bill.
However, if you are an illegal immigrant (legally referred to as an illegal alien) and you are arrested and charged with a misdemeanor, the risk of deportation increases. Local police can (and often do) share arrest information with ICE. An arrested illegal alien can be held for up to 48 hours and transferred to ICE custody. Even if you are released, ICE can arrest and detain you at a later date and initiate removal proceedings.
If you have been charged with a misdemeanor offense, you should consult with an immigration attorney as soon as possible. Even if the likelihood of deportation is small, it’s important to handle your case in a way that minimizes or eliminates ICE’s ability to initiate removal proceedings against you. In the ideal scenario, it’s best if you can find an immigration attorney with experience in criminal defense who can also represent you in court in relation to your misdemeanor charge.
Misdemeanors That May Qualify for Deportation
Under federal immigration law, an immigrant may be deported for committing a crime of moral turpitude. According to the Board of Immigration Appeals, a crime of moral turpitude is defined as “an act that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general” (USCIS).
While the definition of moral turpitude is intentionally vague, the courts have established that the following offenses may qualify an immigrant for deportation:
- Assault with vicious intent
- Gross indecency
- Tax evasion
- Transporting stolen property
If you are convicted of a crime of moral turpitude during your first five years in the United States, you may be deported. If you are convicted of two or more crimes of moral turpitude at any point during your time in the United States, that may also serve as grounds for deportation. Note that these rules apply even if you have a green card.
In addition to crimes of moral turpitude, you may also be deported for conviction of a misdemeanor or felony that involves child abuse, domestic violence, drugs, or firearms. While these don’t trigger automatic deportation, ICE may cite them as a valid reason to initiate removal proceedings against you.
If you are convicted of a crime of moral turpitude that would result in less than one year of imprisonment, and if you actually serve less than 6 months of the prison term, the crime is classified as a petty offense. Generally speaking, petty offenses don’t qualify for deportation.
When it comes to crimes that lead to deportation, committing an aggravated felony is a sure way to prompt ICE to initiate removal proceedings. ICE has openly stated that its primary mission is to remove dangerous individuals who are a threat to society, and conviction of an aggravated felony is a high priority for the agency.
Under the Immigration and Nationality Act, any non-citizen who has been convicted of an aggravated felony is statutorily barred from obtaining US citizenship. Furthermore, a non-citizen who has been convicted of an aggravated felony is statutorily barred from receiving a visa to the United States, and he or she is to be arrested and placed in removal proceedings if found within the country.
Once an immigrant who has been convicted of an aggravated felony has been detained, he or she may be eligible for expedited removal from the United States. Rather than going through the standard removal process that could take 2 – 3 years or more, expedited removal allows ICE to deport someone in 1 – 2 weeks.
The Deportation Process
Generally speaking, the United States has the right to deport foreign nationals who violate their visa, are considered a threat to public safety, or participate in criminal activity. Immigrants who illegally enter the country without travel documents or with forged documents may also be deported.
If ICE initiates removal proceedings to deport you from the United States, here’s what you can expect:
- You will be detained at an ICE detention facility or contracted prison until you post a bond, are released on your own recognizance, or are deported.
- ICE will present your case to an immigration court of the Department of Justice
- You may seek relief from deportation under certain qualifying circumstances. If the court accepts your defense against deportation, the judge will approve a cancellation of removal. If the court rejects your defense, the judge will issue a removal order.
- Should the immigration court reject your request for relief, you may appeal your case to the Board of Immigration Appeals and/or the Circuit Court of Appeals.
- Should the appellate courts reject your appeals, the US will coordinate with the receiving country to accept the deportee and acquire travel documentation. Some countries (such as Mexico) can result in a deportation in less than 2 weeks, while others can take up to 90 days.
Note that if your case qualifies for expedited removal, the standard process is suspended, and you may be deported in less than two weeks. Outside of committing an aggravated felony, this usually only applies to illegal aliens who are detained less than 100 miles from the border and within 2 years of their entering the United States.
Call our Immigration team at(480) 626-2388 to discuss your case today.