Immigration Consequences and Criminal Cases in Massachusetts

Many defendants who are not United States citizens often do not realize that certain dispositions, even for seemingly minor offenses, can have an effect on their ability to stay in the United States or to re-enter in the event that they leave the country. Defendants who are non-U.S. citizens may be deported from Massachusetts if they are convicted of certain crimes. Even cases in which a defendant is not convicted and receives an alternative sentence of a "Continuance Without a Finding," he or she may face immigration consequences, including deportation and denial of admission into the country at a future date. The legal action that will be taken against the defendant will depend on the nature of the crime committed and the sentenced ordered.

Massachusetts criminal defense attorney Kathleen McCarthy has tremendous experience in representing clients who are not citizens. Even individuals who are "permanent legal residents" do not enjoy the protections of a person with full citizenship. It is important to know what effect, if any, any type of disposition will have on one's citizenship status. Recently, Massachusetts immigration and law enforcement agencies have begun working together to share information to ensure that deportation proceedings are initiated in appropriate circumstances.

Immigration Consequences of Criminal Convictions

In the immigration arena, a conviction is defined as either a formal judgment of guilt, a plea of nolo contendere, or if the defendant admits sufficient facts to warrant a finding of guilt. The Immigration Court examines if an individual's liberty is restricted to determine if a disposition qualifies as a conviction. In most circumstances, if pre-trial probation or pretrial diversion is ordered, immigration consequences usually do not occur. If a non-citizen defendant is convicted of any of the following crimes, he/she may be deported:

  1. Aggravated Felony Conviction

    If a non-citizen is convicted of the following types of aggravated felonies, he/she may be deported:

    1. Murder
    2. Rape
    3. Sexual abuse of a minor
    4. Drug trafficking
    5. Firearm trafficking
    6. Prostitution ring
    7. Fraud or tax evasion in the loss of $10,000 or more

    If a non-citizen is convicted of the following types of aggravated felonies, and is sentenced to serve one year or more in prison, he/she may be deported:

    1. Crime of violence
    2. Theft offense
    3. Obstruction of justice
    4. Passport fraud

    An aggravated felony conviction may result in serious consequences. The U.S. government can detain a non-citizen without bond and expeditiously deport him/her. If the non-citizen is deported as an aggravated felon, he/she will be banned from entering the U.S. for life.

  2. Crimes Involving Moral Turpitude

    Non-citizens, including lawful permanent residents, may be removed/deported if convicted of a crime involving moral turpitude. The prosecution must prove that the non-citizen defendant intended to commit a reprehensible crime. Additionally, a non-citizen can be deported if he/she is convicted of a crime for which a sentence of one year of longer may be imposed. (8 U.S.C. 1227(a)(2)(A).

    Crimes of moral turpitude include the following:

    1. Crimes against the person such as murder, manslaughter, and aggravated assault
    2. Sex crimes such as rape and prostitution
    3. Crimes against property such as arson, robbery, larceny, and any type of fraud that involves the intent to permanently deprive a person of his/her property
  3. Controlled Substance Offense

    If a non-citizen is convicted of a Massachusetts controlled substance offense, he/she may be deported. A non-citizen can also be deported if he/she is found to be a drug abuser or addict.

  4. Firearm Violation

    Common firearm violations that can result in deportation upon conviction consist of buying, selling, using, owning, possessing, or carrying a firearm. Firearm violations typically include crimes for which possession or use is an element. 8 U.S.C. § 1227(a)(2)(C).

  5. Domestic Violence

    A non-citizen may be deported if he/she is convicted of a domestic violence crime, such as domestic assault and battery, stalking, child abuse, child neglect, child abandonment, violation of criminal or civil protection orders. 8 U.S.C. § 1227(a)(2)(e). It is important to remember that even a case disposed of with a continuance without a finding can trigger immigration consequences for any crime that involved "domestic violence."

Motion to Vacate Guilty Plea

Before a non-citizen defendant enters a guilty plea or admits sufficient facts regarding the elements of the crime, the judge must warn the defendant of the immigration consequences of that plea or admission. Failing to do so may provide grounds to file a motion to vacate a guilty plea.

Motion to Revise and Revoke

Under Massachusetts Criminal Procedure Rule 29, a motion to revise and revoke may be used to have a criminal sentence revised or revoked if it appears that justice was not served. This motion must be timely filed in order to be considered by the judge. This type of motion is usually filed if a non-citizen defendant's sentence is greater than one year. For example, if a non-citizen defendant commits a non-violent crime and is sentenced to serve 400 days in jail, then he/she should consider filing a motion to revise and revoke their sentence. The defense attorney can argue that a sentence of 279 days is in the best interest of justice. If granted, since the sentence is less than a year, the non-citizen defendant will not be subjected to deportation.

Hire Boston Immigration Criminal Defense Attorney Kathleen McCarthy

If you are a non-U.S. citizen and have been charged with any type of crime in Massachusetts, it is important that you know the ramifications any type of disposition may have on your opportunity to stay in the country or re-enter. Attorney Kathleen McCarthy has successfully represented clients in this position. Attorney McCarthy represents clients with collateral immigration issues in throughout Massachusetts. If you want experience and good results on your side contact Attorney McCarthy at 978-975-8060 for a free phone consultation.