- CBP will give your client a hard time at the border once the pending charge appears on their screen (which it will when your client presents his alien card and places his thumb on the scanner.)
- They will place him/her in secondary inspection (a small room away from the rest of the traveling public) for an indefinite period of time.
- The law provides no right to an attorney at the border and your client will be on his or her own.
Common Criminal Law Immigration Questions:
My client is a non-U.S. citizen and is charged with a felony. He is out on bond and the case is pending trial. He needs to travel out of the country on business. Will having an open case cause him to be detained at the airport?
My client, a non-citizen, has been convicted of felonies in the past but has never been subjected to deportation. He has a new felony charge. If he hasn’t been deported before and he is already a convicted felon, does it matter if he accepts a guilty plea to another felony? Or does that depend on what the felony charge is?
It depends on what the felony charge is. Certain crimes will cause “inadmissibility” or “deportability” regardless if it was for a felony or misdemeanor. Other convictions require at least a year or more imprisonment.
Will a misdemeanor conviction subject my client to deportation?
The criminal classification between misdemeanors and felonies is irrelevant for immigration purposes. One could make the argument that fewer misdemeanors are classifiable as crimes involving moral turpitude (CIMTs) or Aggravated Felonies (Ag. Fels.), but I have seen people deported for crimes as small as DWLS and Domestic Violence even where the case didn’t even make it to trial.
Will a withhold of adjudication as opposed to an adjudication prevent my client from being subject to deportation?
Absolutely not. Here the law is quite clear, a withhold of adjudication is a conviction for immigration purposes if some fine (even $1) or restraint on liberty (one day in jail or even reporting probation) has been imposed by the court.
Is there a list of crimes that are black-letter-law deportable offenses or Crimes Involving Moral Turpitude (“CIMT”)?
Unfortunately, no, and the criminal or immigration lawyer who relies on such a “cheat-sheet” flirts with malpractice each time he or she represents a client. The definition of a CIMT is anything “base, vile, or depraved” which couldn’t be more vague or subject to the shifting mores of American society.
Are there exceptions to CIMTs?
Broadly, there are three exceptions to CIMTs: Political, Petty Offense, and Youthful Offender.
If my client doesn’t fall into one of the three exceptions above, will he or she be deported regardless of my efforts?
Not necessarily. There are many waivers of inadmissibility as well as waivers of deportability (remember, the two terms are never to be used interchangeably.)
My client was charged with a bondable offense but the jail won’t release him due to an “immigration hold.” What is an “immigration hold” and how can I get my client out of jail?
Once bond is posted, criminal custody ends. ICE then has 48 hours to pick your client up. If ICE does not pick your client up, speak with the jail and threaten to (1) sue the jail for false imprisonment, and (2) go to the presiding criminal-court judge with the appropriate motion. A federal habeas corpus motion might be needed in the most extreme cases.