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Can ICE detain a lawful permanent resident (green card holder) because of a past criminal conviction?

Posted by Neil Shouse | Sep 11, 2018 | 0 Comments

Yes. Unfortunately, undocumented immigrants are not the only non-citizens subject to detention by US Immigration and Customs Enforcement (“ICE”). Any non-citizen can also be detained if they have a past conviction for a “removable” (deportable) crime. This includes:

  • Lawful permanent residents (also known as “LPR”s or green card holders),
  • Visa holders, and
  • Refugees (including those who have been granted asylum).

Can a green card holder be deported for any crime?

No. “Deportable” crimes are set forth in Section 237 of the U.S. Immigration and Nationality Act, which is codified at 8 U.S. Code § 1227.

There are dozens of offenses that can subject non-citizens to removal from the United States. But the major categories of California "deportable crimes" include:

  • So-called "crimes of moral turpitude,"
  • So-called "aggravated felonies,"
  • Drug offenses (other than possession of small amounts of marijuana for personal use),
  • Firearms offenses,
  • Domestic violence crimes, and
  • Fraud against the government.

Does INA 237 require an actual conviction?

In most cases, INA 237 requires an actual conviction. But there are also a number of situations in which a non-citizen can be deported without a conviction. These include when:

  • The non-citizen has abused or been addicted to any drug at any time since admission to the U.S.,
  • The non-citizen is a “habitual drunkard” (though simply being an alcoholic is not enough), or
  • The government has “reason to believe” that the non-citizen has engaged in drug trafficking or prostitution.

What if I have been crime-free for many years?

Unfortunately, the passage of time will not necessarily protect a green card holder against ICE detention.

But that does not mean that someone who is detained will be deported. Options available to green card holders can include:

  • Cancellation of removal, which is available to non-citizens who:
    • Have lived in the U.S. continuously and lawfully for at least seven (7) years,
    • Have had a green card for at least five (5) years, and
    • Have not been convicted of an aggravated felony; and
  • Naturalization as a U.S. citizen, which is available to non-citizens who:
    • Are not inadmissible to the U.S. (because of an “aggravated felony” conviction or otherwise), and
    • Can show “good moral character” for the five-year period preceding their application.

How does ICE decide to deport a green-card holder with a criminal past?

When a green card holder is convicted of a removable crime, ICE agents inform an agency lawyer. The lawyer then decides whether to put the green card holder into removal proceedings.

In the past, as a matter of government policy, non-citizens convicted of relatively low-level offenses were typically not placed into removal proceedings. But under the Trump Administration, the Department of Justice is following a “zero tolerance” immigration policy.

Because green card holders are “in the system,” ICE typically has their address. This makes them easy targets for an arrest.

But again, being deportable does not mean someone will be deported. The key is to contact an experienced immigration/criminal defense lawyer immediately. A skilled lawyer can help a non-citizen explore the available options for keeping him or her in the country.

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About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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