DUI, "Moral Turpitude" Crimes, May Result In Deportation for Noncitizen Clients

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A criminal defense counsel's knowledge and understanding of immigration consequences when defending a noncitizen in a criminal case is not only mandatory but beneficial. Several U.S. Supreme Court cases over the last six years have clarified the role of criminal defense counsel and the warnings that defense counsel must provide a noncitizen client.

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the U.S. Supreme Court held that defense counsel must advise a noncitizen client of immigration consequences arising from a guilty plea or conviction. The importance of understanding such consequences was further analyzed in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013). These cases clarified when a conviction may have adverse immigration consequences for a noncitizen.

Whether a Connecticut or federal conviction will result in the deportation or removal of a noncitizen depends on whether the conviction falls into one or more categories defined by the Immigration and Nationality Act, the governing statutory regulations for immigration law. The most damaging conviction for a noncitizen is an "aggravated felony." An "aggravated felony" is a term of art under the INA and is also a misnomer because currently the category includes many misdemeanors and other offenses that are not particularly "aggravated."

In any case, a conviction that is determined to be an "aggravated felony" will result in deportation or removal of a noncitizen and permanently bars the individual from admission into the U.S. Some common "aggravated felonies," as defined at INA §101(a) (43), are: (A) murder, rape, or sexual abuse of a minor; (B) trafficking in a controlled substance; (C) trafficking in firearms; (F) a crime of violence; (G) a theft or burglary offense with a imprisonment term of 365 days or more; (I) an offense relating to child pornography; (L) fraud or deceit when the loss exceeds $10,000; (N) an offense committed by an alien who was previously deported; (P) failure to appear if the underlying offense is punishable by five years or more; (S) an offense relating to a failure to appear before a court for which a sentence of 2 years or more is imposed.

Another deportable or removable offense is a conviction relating to a controlled substance. The only exception is for a single offense of possession of 30 grams or less of marijuana for one's own use. A conviction for a drug paraphernalia offense may also relate to a controlled substance violation under this provision.

Moral Turpitude

A noncitizen may be deportable or removable for committing a crime involving moral turpitude. "Moral turpitude" is not defined in the INA but generally refers to conduct that is inherently dishonest, base, vile or depraved. Examples include: murder, voluntary manslaughter, kidnapping, rape, fraud, spousal abuse, child abuse, incest, aggravated assaults, lewd conduct toward a child, possession of child pornography, DUI without a license, theft, robbery, forgery, embezzlement, extortion, perjury, and willful tax evasion.

Offenses that may not be considered crimes of moral turpitude include: simple assault, unlawful entry, damaging private property, escape, possession of an altered or fraudulent document, and indecent exposure. Other offenses that set off a red flag and could result in removal or deportation are: domestic violence, stalking, child abuse, child neglect, or child abandonment. A conviction for knowingly failing to register or update a registration as a sex offender as well as a violation of a protective order that involves threats of violence or repeated harassment may be deportable.

Padilla requires that a defense attorney know whether the immigration consequences of a guilty plea "could easily be determined from reading the removal statute," which is "succinct, clear, and explicit in defining the removal consequence." The Supreme Court held specifically that when the risk of removal resulting from a guilty plea is "clear," counsel must advise the client that "deportation [is] presumptively mandatory." When that consequence is not clear, counsel need only advise the client that "pending criminal charges may carry a risk of adverse immigration consequences." The court acknowledged that a "lack of clarity in the law ... will affect the scope and nature of counsel's advice."

Moncrieffe clarified that to determine a conviction's immigration consequences, the inquiry under the established categorical approach is whether a conviction "necessarily" involved "facts equating to the generic federal offense." The inquiry is purely a legal determination, focused on a legal presumption that the conviction "rested upon nothing more than the least of the acts criminalized." When the record of conviction is merely ambiguous, the conviction does not "necessarily involve facts that correspond" to a deportable offense and the noncitizen is not convicted of that qualifying offense as a matter of law.

Representing a noncitizen requires an inquiry on whether the statutory language of the conviction, under the categorical approach, could be an aggravated felony, a crime involving moral turpitude or another deportable or removable offense. Warning the noncitizen of all potential risks of a conviction is paramount. Additional ways to protect a noncitizen criminal defendant is to keep the record of conviction "clean" by avoiding facts that may make a particular conviction worse for immigration purpose, such as "defendant used a firearm"; "the victim was a minor"; or "the victim was a spouse." This is important because the record of conviction for purposes of immigration law includes the statutory definition of the offense, the charging document, a written plea agreement, the transcript of a plea colloquy, sentencing minutes and any factual finding by the trial court to which the defendant assented.

Certain convictions may not result in deportation or removal but can harm a noncitizen's eligibility for permanent residency, deferred action, naturalization and may place the noncitizen in jeopardy from being detained by immigration. That is why understanding aspects of immigration law are important when defending noncitizens. As the Supreme Court noted in Padilla, "informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the parties may not only preserve the finality of pleas, but may also negotiate better agreements on behalf of the State and the noncitizen defendant."

Maya Murphy P.C. has the resources and expertise to offer you the best possible representation throughout the criminal process. If you are facing criminal charges or wish to appeal your case, please call the offices of Maya Murphy, P.C. today at (203) 221-3100 or Joseph C. Maya, Esq. atJMaya@Mayalaw.com.

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Source: Erin O'Neil-Baker, Defense Counsel's Role in Representing Noncitizens; Rulings Clarify Duty to Warn Clients of Immigration Consequences, 42 Conn. Law Tribune 16, Apr. 18, 2016, at S2.