If you a green card holder and are convicted of a crime, whether or not you have served a jail sentence, you may be facing a more permanent punishment-deportation. If you are an immigrant, whether here on a visa or a green card holder, and are charged with a crime--no matter how minor--you should consult with an experienced immigration attorney along with your criminal defense attorney, or at least be sure that your criminal defense attorney consults with an immigration lawyer before pleading to any charges. Not doing so can have disastrous consequences for your immigration status. I should know, I'm a Seattle immigration lawyer.
Now, if you are a green card holder (in immigration lingo, an "LPR", which stands for lawful permanent resident) and happen to find yourself with a criminal conviction because your criminal defense attorney was not aware of the immigration ramifications or you were found guilty after a trial, and you are then put in removal proceedings in Immigration Court, you may be eligible for a discretionary waiver, in this case called "cancellation of removal." You should find an experienced immigration lawyer who has worked on cancellation of removal cases before to represent you.
Unfortunately, the immigration laws mandate that all aliens be detained pending their removal proceedings if they have been convicted of certain crimes-regardless of their criminal court sentence. Many people who find themselves in custody want to give up and accept a removal in order (deportation) in order to be released. But, before you make this decision, it is very important to know that if you are eligible for cancellation of removal and do not apply for it, then you are giving up your permanent residence and the chance to apply for cancellation at any time in the future. Finally, you will not be allowed to immigrate to the U.S. for at least 10 years, and possibly not even be permitted to visit the U.S. for several years, if ever. (If you do visit illegally, you could then face years in federal prison.)
If you choose to seek cancellation of removal, you apply with the Immigration Judge who is presiding over your case. The judge will apply the relevant immigration statute to determine if you are eligible for this waiver, which includes a three part test:
(1) Have you been lawfully admitted for permanent residence for no less than 5 years?
(2) Have you lived in the U.S. continuously for 7 years after being admitted in any status? And,
(3) Have you been convicted of any "aggravated felony"?
The definition of "aggravated felony" is found in the relevant immigration statute but it has also been expanded and changed by federal appeals court decisions. Many misdemeanors qualify as aggravated felonies. Some criminal convictions only count as aggravated felonies if a certain amount of prison time has been served, and others depend on how a crime is punishable. Now, the judge has the discretion to deny this waiver even if you qualify for it, which means that an appeal of the judge's decision will have very little chance of success-all the more reason to present the best case possible the first time.
This means showing that the crime did not qualify as an "aggravated felony" and that you deserve a second chance to live in the U.S. You must show that if you were deported it would be a hardship to your citizen or LPR family members and that you have been rehabilitated (or you have an otherwise long history of good behavior). Gathering evidence of the hardship your family would suffer if you were deported and your own involvement in the community is crucial. For example, affidavits from family members, medical records showing a family member who needs your care, children's school records, affidavits from employers, etc., can all be used to show you are deserving of a second chance and have a history as a contributing member of society.
Should you be fortunate enough to have the judge grant your cancellation of removal application, remember that this is a one-time only form of relief. There is no third chance-so make the second one count.
*This article is for information purposes only and should not be construed as legal advice. Consult with an experienced immigration attorney regarding your specific circumstances.