What does the election of Donald Trump mean for immigrants with California criminal records?

Posted on November 30, 2016

President-elect Donald Trump campaigned on a platform that called for deporting large numbers of immigrants.

We still don’t know how committed Trump will be to those campaign promises once he takes office. But we do know that he will need to work within the confines of U.S. criminal immigration law–which spells out exactly when a non-citizen may be deported for a criminal conviction.

At the outset, it is important to note that Trump’s campaign pledges to deport non-citizens living in the United States apply to two distinct groups:

• Illegal immigrants (those who are living in the country without the necessary immigration status to do so), and
• Legal non-citizen immigrants (visa holders, green card holders, etc.) who have criminal convictions.

Illegal immigrants

The deportation of illegal immigrants is a matter of immigration law only. Illegal immigrants have always been subject to deportation, even if they obey all laws, hold jobs, and contribute substantially to American society–as many illegal immigrants do.

For illegal immigrants, the only guarantee against deportation is to apply for an “adjustment of status”–a conversion of their status to legal immigrant. This option is available only to illegal immigrants who fit into a few select categories.

That said, the criminal justice system does impact the experience of illegal immigrants. When local or state police search or arrest a person on suspicion of criminal activity, and suspect that that person may be undocumented, they may share that information with U.S. Immigration and Customs Enforcement–possibly flagging that person for deportation.

But local law enforcement in many of the country’s major cities have decided not to cooperate with federal immigration authorities and no longer inform the feds when they encounter an undocumented suspect. These so-called “sanctuary cities” include:

• Long Beach,
• Los Angeles,
• Oakland,
• San Bernardino,
• San Diego,
• San Francisco, and
• San Jose.

Legal immigrants deportable due to criminal convictions

In contrast, the deportation of legal immigrants with criminal records concerns the intersection between immigration law and criminal law.

Under criminal immigration law, legal immigrants may be deported if they are convicted of certain criminal offenses–known as “deportable crimes.”

The major categories of deportable crimes are:

1. So-called “crimes of moral turpitude” (including crimes like assault with a deadly weapon, burglary, forgery, arson, receiving stolen property, and grand theft),
2. Aggravated felonies (including crimes like rape, murder, sexual abuse of a minor, and fraud that defrauds the victim of at least $10,000),
3. Firearms offenses,
4. Domestic violence offenses, and
5. Controlled substances offenses (i.e., drug crimes).

For all of these categories except crimes of moral turpitude, one conviction is enough to make you deportable. For crimes of moral turpitude, you are deportable only if you are convicted of two (2) or more crimes of moral turpitude, OR a single crime of moral turpitude for which a jail sentence of one (1) year or more may be imposed within five (5) years of your entry into the United States.

Not all crimes are deportable crimes

The list of deportable crimes is long. And the fact that it includes virtually all drug crimes means a huge number of legal immigrants become subject to deportation for offenses that most Americans probably don’t consider all that serious (such as possession of a controlled substance for sale).

But it is important to remember that many of the most common California crimes, particularly misdemeanor crimes, will not affect the immigration status of someone who is in the country legally.

To list just a few prominent examples, you will not be deportable if you are in the country legally and are convicted of:

• A standard DUI,
• Petty theft, or
• Shoplifting.

What is an inadmissible crime, and can I be deported for it?

Another category of crimes that are relevant for one’s immigration status is “inadmissible crimes.”

A conviction for an inadmissible crime will NOT get you deported if you are an illegal immigrant. But it can keep you from:

• Re-entering the country after you leave,
• Becoming a U.S. citizen, or
• Obtaining a green card (permanent resident status) or an adjustment of status.

The major categories of inadmissible crimes are:

• Crimes of moral turpitude (only one conviction needed for inadmissibility, in contrast to deportability),
• Controlled substances offenses,
• Conviction of multiple offenses with sentences totaling five years or more, and
• Prostitution-related activity.

The bottom line…

The election of Donald Trump is definitely a cause of concern for immigrants, both legal and illegal.

That said, it is unclear how committed he actually is to deporting large numbers of immigrants. Countless campaign promises have been broken or subject to compromise once a candidate is elected.

Even if Trump is determined to deport two or three million immigrants, as he has recently promised, it is not clear that the federal government will have the resources to carry this out–particularly since sanctuary cities, like the largest cities in California, will refuse to lend their resources to this project.

All that said, immigrants with criminal records should strongly consider speaking with a criminal defense lawyer who has expertise in immigration matters as soon as possible. An attorney can help you determine whether your conviction actually poses a threat to your ability to remain the United States.

S/he may also be able to help you obtain post-conviction relief (possibly including the well-known Padilla motion) that could–in the best case scenario–save you from the prospect of deportation.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.