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Crimes Leading To Deportation Your Dream is My Dream

Deportation Defense Attorney In Tampa

Deportability deals with the inability of a person to remain in the United States. Deportability is basically the ability to remove someone who is undocumented from the United States. There are several grounds of deportability, including convictions for certain crimes, controlled substance offenses, aggravated felonies, crimes of violence, firearms offenses, and crimes involving moral turpitude (CIMTs). We will discuss these grounds in this page. Deportability is a very serious concept and you should have a competent immigration attorney on your side to defend you.

Deportability and Removal Proceedings

An immigrant in removal proceedings faces charges of deportability and inadmissibility. Deportability deals with the ability of an immigrant to remain in the United States. The government will charge an immigrant using the Notice to Appear, the charging document, with the alleged deportation grounds. The government bears the burden of proving deportability in removal proceedings.

Convictions for Immigration Purposes

Under INA § 101(a)(48), a conviction for immigration purposes is defined as:

The term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where:

  • a judge or a jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted enough facts to warrant a finding of guilt, and
  • the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

For immigration purposes, a withhold of any type still counts as a conviction.

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The Categorical and Non-Categorical Approaches

The categorical and non-categorical approaches are methods used for inadmissibility and deportability in immigration law. The categorical approach compares a state statute to the federal equivalent to determine whether it is a deportable offense. This takes place without resorting to any outside records. The determining factor is whether the state statute is broader than the federal statute. If the state and the federal statutes match, then the statute is a deportable offense. If not, the modified categorical approach will be used.

A divisible statute is a law that includes various offenses. A divisible statute allows a court to reach beyond the statute to determine whether a statute is deportable. The court would go beyond the statute, to the record of conviction and police reports, to determine the individual’s conduct to ascertain deportability.

Criminal Convictions

Under INA 101(a)(48)(B), any crimes or conviction after September 30,, 1996 may form a basis for removal. Any time of incarceration or confinement ordered by a judge may subject someone to deportation. Even suspended sentences may be used for immigration purposes. A sentence that is vacated, even for immigration purposes, the new sentence will be used to determine deportability. Matter of Cota, 23 I&N Dec. 849 (BIA 2005). However, an immigrant may not collaterally attack his conviction in immigration court and should do so in criminal proceedings.

In Padilla v. Kentucky, the United States Supreme Court ruled that a criminal attorney must inform a client of the immigration consequences of his plea.

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