Under U.S. immigration law, certain California "deportable crimes" can have serious immigration consequences.
If you are convicted of one of these so-called "deportable crimes," and you are not a United States citizen, then the Department of Homeland Security may deport you--regardless of how long you have lived in the United States or how well-established your life is here.2
The major categories of California "deportable crimes" are:
So-called "crimes of moral turpitude,"
So-called "aggravated felonies,"
California controlled substances (drug) offenses,
Firearms offenses, and
Domestic violence crimes.3
Unfortunately, far too many immigrants facing criminal charges are represented by California criminal defense attorneys who do not understand the immigration consequences of a conviction for a deportable crime.
As a result, these attorneys may not fight the charge as aggressively as they should--and might even advise the defendant to plead guilty or "no contest."
Example: Javier was born in Brazil but came to the U.S. with his parents as an infant. He has been living in Oakland ever since.
When Javier is 19, he is caught with 100 grams of cocaine in his possession. The prosecutor initially charges him with possession of a controlled substance for sale, which carries a maximum sentence of four years in jail.4
Javier's criminal defense attorney - who does not understand immigration law - advises him to plead guilty Instead to possession of a controlled substance for personal use. This is because that offense carries a much lower maximum sentence--only one year in jail.5
But after he's already pled guilty, Javier discovers that his drug possession conviction (like almost all California drug crimes) is a deportable offense.6 If Javier's attorney had understood criminal immigration law, he probably would have advised him to fight the more serious charge instead.
This is why it is extremely important for all non-citizens facing criminal charges to be represented by a criminal defense and immigration attorney who is an expert in immigration law as well as criminal law.
In order to help you better understand which California crimes can lead to deportation, our California criminal defense and immigration attorneys will address the following:
If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
The federal Immigration and Nationality Act (usually referred to as the "INA") provides that any non-citizen living in the United States may be deported - that is, removed from the country - if they are convicted of certain criminal offenses.7
It does not matter
how long you have lived in the US,
how well-established your life is here (e.g., homeownership, job, business ownership), or
whether you have a dependent child who is a US citizen.9
Similarly, it does not matter what your immigration status is. All non-citizens are subject to the deportability sections of the INA,10 whether they are
Legal permanent residents (aka "green card" holders),
visa holders (student visas, work visas, etc.), or
refugees who have been granted asylum.
Example: Jesus is born in Mexico. He is admitted to the US as a lawful permanent resident ("green card" holder) when he is only two years old and lives here continuously from then on. He marries an American citizen when he is in his 20s--but he never becomes a citizen himself.
After being convicted of several theft crimes which are deportable offenses, Jesus is deported to Mexico. It does not matter that he's lived virtually his entire life in the U.S. and has strong ties here.11
Deportation vs. inadmissibility
It is important to note that deportation is not the only thing non-citizens have to worry about if they are convicted of a crime. Inadmissibility is another potential immigration consequence of a criminal conviction in California.
Re-enter the country after leaving,
Become a U.S. citizen, or
Apply for permanent residence (a green card) or an "adjustment of status" -- that is, a change from illegal to legal immigration status.13
But--in contrast to a conviction for one of the deportable crimes we discuss below--a conviction for an inadmissible crime will not necessarily lead to you being removed from the country against your will.14
Section 237 of the INA lists the crimes for which you can be deported.15
The first major category of deportable crime consists of so-called "crimes of moral turpitude" (also known as "crimes Involving moral turpitude" or "CIMTs").16
Crimes of moral turpitude are an unusually complicated area of immigration law. That is because the INA does not define what a "crime of moral turpitude" is.17 As a result, California and federal courts have had to come up with their own definition.18
Definition of moral turpitude in California
Courts have defined moral turpitude as a corruption of the social basic duties that everyone owes to other people and to society as a whole--in other words, antisocial behavior that harms another person or the social good.19
California courts have decided that the following are crimes are crimes of moral turpitude (and hence potentially deportable crimes):
Assault with a deadly weapon,21
Cultivation of marijuana,23
Possession for sale of controlled substances,29
Receiving stolen property,31 and
Repeated felony convictions for driving under the influence (DUI).32
(On that last item, the immigration consequences of a California DUI conviction are a very complicated topic and are best addressed by an experienced California criminal immigration attorney.)
What about crimes that are not crimes of moral turpitude? California courts have decided that the following crimes are not crimes involving moral turpitude and thus do not have the same immigration consequences (i.e., deportability):
Assault (not Involving a deadly weapon),33
Indecent exposure,35 and
Crimes of moral turpitude and deportability
Just being convicted of a single crime of moral turpitude is not enough to make you deportable. Instead, you are deportable only if you either:
- Are convicted of a crime of moral turpitude for which a prison sentence of one (1) year or longer may be imposed, within five (5) years of being admitted to the U.S., OR
- Are convicted of two (2) or more crimes of moral turpitude that did not arise out of a single criminal scheme.37
Example: Sophia is originally from El Salvador and has been a lawful permanent resident of the U.S. for ten years.
Her personal life takes a turn for the worse, and she is convicted of grand theft auto under Vehicle Code 10851 for attempting to steal a car. She receives a misdemeanor sentence and serves some time in county jail.38
Even though this is a crime of moral turpitude, Sophia is not deportable. She's been convicted of only one crime of moral turpitude--and the conviction occurred more than five years after she was admitted to the U.S.
Example: Let's say that, a few years later, Sophia is arrested for California burglary.
If she is convicted, she will be deportable--because this would be her second conviction of a crime of moral turpitude, and it is not part of the same criminal scheme as her grand theft auto conviction.
Therefore, it is in Sophia's best interest to aggressively fight this charge--to avoid being deported o El Salvador if she is convicted.
In contrast to crimes moral of turpitude--which have to be identified as such by courts--the phrase "aggravated felony" has a specific definition in the INA.40 Some of the most important aggravated felonies under criminal immigration law are:
Sexual abuse of a minor,
Illicit trafficking in firearms,
Theft crimes for which the sentence is more than one (1) year in prison,
Crimes related to the operation or supervision of a prostitution business (such as pimping), and
Example: Ahmed moved to the United States as a refugee from Somalia eight years ago. He is arrested and charged with rape-which is a crime of moral turpitude AND an aggravated felony.
Normally, a single conviction of a crime of moral turpitude that occurred 8 years after he entered the U.S. would not make Ahmed deportable. But rape is also an aggravated felony. Therefore, if Ahmed is convicted, he will be deported.
"For a criminal defendant who is not a U.S. citizen, an aggravated felony conviction is very bad news. Not enough criminal defense attorneys understand this right off the bat. For me, the most Important goal for a non-citizen client is avoiding an aggravated felony conviction--whether this is best done by pleading guilty to a non-deportable crime or by fighting the charge with all we've got."
Another major category of deportable crimes is controlled substances offenses. Under the INA, almost all California drug crimes can lead to deportation.44
This includes both serious and not-so-serious drug crimes. You may be deported if you are convicted of
Drug transport / sale,
Possession of drugs for sale, or
There is one exception. You may not be deported if your drug crime conviction is for a single charge of simple possession of marijuana - as long as the amount possessed is thirty (30) grams (the equivalent of just over one ounce) or less.46 (In 2016, Proposition 64 legalized simple possession of small amounts of marijuana in California, so this exception will not have much impact going forward.)
This provision of the INA have incredibly harsh results for many immigrants -- just because convictions for drug offenses are so common, and happen so frequently to otherwise law-abiding people.
A few years back, almost one-third of the non-citizens who were deported for deportable criminal convictions were deported because of drug offenses.47 In 2009, almost 40,000 immigrants were deported after a drug conviction.48
Another group of deportable crimes is offenses related to firearms or destructive devices.49
Specifically, you can be deported if you are convicted of illegally
In practice, this means that virtually any conviction for violating California gun laws can lead to deportation. Common deportable firearm crimes are California's "felon with a firearm" law and assault with a firearm (which is also a crime of moral turpitude51).
You need only a single conviction of a domestic violence offense to be deportable.53 For purposes of the INA, a "domestic violence offense" means not just a classic domestic abuse crime like domestic battery on a spouse or partner--but also child abuse and even violating a restraining order.54
Example: Rajiv is from India. He is a graduate student at the University of California and is living in the U.S. on a student visa. He and his girlfriend have a tumultuous relationship, and she ends up obtaining a restraining order against him.
Rajiv is unfamiliar with the concept of an American restraining order, and he contacts his girlfriend repeatedly--thereby violating the order. He is arrested and convicted of violating a restraining order. This means that he may now be deported.
In addition to the deportable crimes we just described, another common cause of deportation is a section of the INA that allows the government to deport you for being addicted to drugs--even if you are never convicted of a crime related to this! 55
Specifically, section 212(a)(2)(B) of the INA provides that you may be deported if you either
currently are a drug addict or abuser, or
have been a drug abuser or addict since you were admitted to the U.S.56
Many of our clients want to know if there's any way to save their immigration status--and their life in the United States--even if they have a conviction for a California deportable crime on their record.
The answer may be yes. An experienced California criminal and immigration attorney can offer you advice on the possibility of receiving some kind of post-conviction relief. If you are eligible for the right form of post-conviction relief, your conviction may not lead to you being deported.
Some of the most common forms of post-conviction relief are:
Reduction of a felony to a misdemeanor,
A motion to vacate a conviction based on a guilty plea if you were not advised of the immigration consequences of the plea,57
Re-sentencing so that your new, lesser sentence does not trigger immigration consequences, and
Even if you are unable to obtain any form of post-conviction relief, you may still be eligible for something called "cancellation of removal."59 An application for cancellation of removal would be dealt with in US Immigration Court, not in a criminal court.
You may be eligible for cancellation of removal only if you are a lawful permanent resident--that is, a "green card" holder--and you meet all of the following requirements:
You have had your green card for at least five (5) years,
You have lived in the U.S. continuously, with wome legal immigration status, for at least seven (7) years, AND
You have not been convicted of an aggravated felony.60
Call Us for Help ...
If you or a loved one is charged with a crime that could lead to deportation and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group.
We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
To learn more about deportable crimes in Nevada, please visit our page on deportable crimes in Nevada.
¿Habla español? Visite nuestro sitio Web en español sobre los delitos que dan lugar a la deportación en California.
1 Immigration & Nationality Act ("INA") 237, 8 USC 1227 - Deportable aliens [key section of criminal immigration law].
2 See same.
3 See same.
4 Health and Safety Code 11351 HS - California's law against possession of a controlled substance for sale [a deportable crime].
5 Health and Safety Code 11350 HS - California's law against possession of a controlled substance for personal use [a deportable crime].
6 See INA 237, endnote 1 above [deportable crimes].
7 See INA 237, endnote 1 above [deportable crimes].
8 See Saw-Reyes v. INS, (5th Cir. 1978) 585 F.2d 762.
9 Encis-Cardozo v. INS (2d Cir. 1974), 504 F.2d 1252.
10 See INA 101, 8 USC 1101 - Definitions.
11 Based on the facts of Sierra-Reyes v. INS, endnote 8 above.
12 212 INA, 8 USC 1182 - (a) Classes of aliens ineligible for visas or admission [key section of criminal immigration law].
13 245 INA, 8 USC 1255 - Adjustment of status of nonimmigrant to that of person admitted for permanent residence [can be affected by inadmissibility, which is distinct from deportability].
14 See CEB California Criminal Law Practice & Procedure § 52.18: Grounds of inadmissibility [contrast to consequences of deportable crimes].
15 See INA 237, endnote 1 above [deportable crimes].
16 See INA 237 (a) (2) (A)(l) -- Crimes of moral turpitude [one category of deportable crime].
17 101 See INA, 8 USC 1101 - Definitions [for purposes of criminal immigration law].
18 See Nunez v. Holder, (2010) 594 F.3d 1124, 1124.
19 In re Craig, (1938) 12 Cal.2d 93, 97.
20 People v. Miles, (1985) 172 Cal.App.3d 474, 482.
21 People v. Cavazos, (1985) 172 Cal.App.3d 589, 595.
22 People v. Castro (1986) 186 Cal.App.3d 1211.
23 People v. Gabriel, (2012) 206 Cal.App.4th 450, 459.
24 People v. Parrish (1985) 170 Cal.App.3d 336, 349.
25 People v. Boyd (1985) 167 Cal.App.3d 36, 45.
26 People v. Rodriguez (1986) 177 Cal.App.3d 174, 178.
27 People v. Zataray (1985), 173 Cal.App.3d 390, 400.
28 People v. Johnson, (1991) 233 Cal.App.3d 425, 459.
29 People v. Castro (1985), 38 Cal.3d 301, 317.
30 People v. Mazza, (1985) 175 Cal.App.3d 836, 844.
31 People v. Rodriguez (1986) 177 Cal.App.3d 174, 179.
32 People v. Forster (1994) 29 Cal.App.4th 1746, 1756.
33 People v. Cavazos, endnote 21, above.
34 People v. Sanders (1992) 10 Cal.App.4th 1268, 1274.
35 Nunez v. Holder, (9th Cir. 2010) 594 F.3d 1124.
36 People v. Solis, (1985) 172 Cal.App.3d 877, 883.
37 See INA 237 (a) (2) (A) [deportable crimes], endnote 16, above.
38 Vehicle Code 10851 VC - Joyriding / grand theft auto [a potentially deportable crime of moral turpitude].
39 See INA 237 (a) (2) (A) (iii) [deportable crimes].
40 101 INA, 8 USC 1101 (a) (43) - Definitions [of aggravated felony, a form of deportable crime].
41 See same.
42 See same. See also People v. Johnson, endnote 28, above, and People v. Mazza, endnote 30, above.
43 Santa Ana criminal and immigration attorney John Murray represents both citizen and non-citizen clients in matters ranging from DUI to homicide, in courthouses across Los Angeles and Orange counties.
44 See INA 237 (a) (2) (B) [deportable crimes].
45 See same.
46 See same.
48 See same.
49 INA 237 (a) (2) (C) [deportable crimes].
50 See same.
51 See People v. Cavazos, endnote 21, above.
52 INA 237 (a) (2) (E) [deportable crimes].
53 See same.
54 See same.
55 INA 237 (a) (2) (B) (ii) [deportable crimes].
56 See same.
57 Penal Code 1016.5 PC - Advisement concerning status as alien [immigration consequences of California criminal convictions, including deportability].
58 See People v. Lucas (1995) 12 Cal.4th 415, 436.
59 8 USC 1229b.
60 See same.