PORTLAND, Ore. – Two immigrants in the Portland area had very different outcomes when dealing with immigration officials. One, a husband of a U.S. citizen and loving father, was deported even though he had no criminal record. Another, convicted of sexually abusing a teenage girl with autism, was allowed to stay in the country.
The two stories struck a nerve with KGW viewers, who wondered why a man convicted of a serious crime was allowed to stay, while another who dutifully provided for his family and paid his taxes was removed from his home.
The two cases show what can happen to immigrants living in the U.S. who have different documentation with the government.
Last year, 226,000 immigrants were deported from the United States. But thousands of other immigrants weren’t deported, even though they committed crimes as serious as sex abuse.
What is and isn’t a deportable crime can be difficult to determine, as U.S. immigration law is rife with conditions and often needs to be interpreted by a judge. In addition, a person’s legal status can subject them to deportation even if they haven’t committed a crime.
Crimes can have different outcomes based on circumstance. Immigration rights advocates say anyone facing deportation should consult a lawyer.
“How a criminal conviction can affect someone’s status is an incredibly complicated area of the law,” said immigration attorney Tim Warden-Hertz. “I think people very much need to consult with an expert in the field to understand what the consequences of certain things are.”
Deportable offenses are vastly different between two classes of immigrants: Undocumented and documented.
Deportations: Undocumented immigrants
Undocumented immigrants can be deported just because they are living in the United States. Because they are not here legally, if Immigration and Customs Enforcement (ICE) picks them up, they can be removed from the country. No other crimes need to be committed for undocumented immigrants to face deportation.
Many, however, are deported after being charged with low-level crimes. That’s because the crimes alert federal ICE officials to their undocumented status.
“That’s frequently what happens in the DUII context,” said John Schlosser, a public defender who works in Multnomah County. “It’s generally not the DUII that gets you in trouble. It’s that you’re now on ICE’s radar.”
Furthermore, if an undocumented person pleads guilty to a low-level crime, that guilty plea is automatically viewed as a conviction in immigration court. Even if the crime is expunged from someone’s record, immigration judges still see that initial plea as a conviction. And that conviction will increase likelihood of deportation.
“Once you’ve entered the plea to the charge, it’s considered an admission, which immigration treats the same as a conviction,” said Schlosser.
For example, DUII is not a deportable crime. But many undocumented immigrants held in federal ICE detention are charged with DUII. Although they could plead guilty to DUII and do diversion, immigration courts will still see that guilty plea.
In addition, immigration judges view DUII as a public threat, so people who were charged with that crime usually face high bond prices or no bond at all and can’t leave detention centers.
“We see a huge portion of people with DUIIs stuck in detention,” Schlosser said.
Immigrants also face deportation if they fail to maintain their residency status, violate their conditions of entry into the U.S., have their visas revoked, or marry someone for residency status.
In addition, helping other immigrants illegally enter the country is a deportable offense, unless the person helped an immediate family member before May 5, 1988.
Once a person is deported, they usually have a very difficult time of returning to the U.S.
Schlosser said undocumented immigrants who file a valid U visa application before deportation have a better change of returning. That visa is reserved for immigrants who were victims of crimes involving significant mental or physical abuse, and who would be willing to help the government investigate the criminal activity.
Deportation: Documented immigrants
Immigrants who have a valid green card or other documentation that allows them to live in the U.S. legally usually must commit more serious crimes to face deportation. But those crimes vary state to state and whether they are deportable offenses is often up for interpretation by a judge.
Federal immigration law lists dozens of deportable offenses, including serious crimes such as aggravated felony, espionage, child abuse, genocide, torture and trafficking.
Other crimes are far less serious for U.S. citizens but could still get documented immigrants deported. Those include failing to register as a sex offender or violating any gun laws.
Immigration courts view drug charges far more harshly than other courts. Documented immigrants can be deported if they have been convicted of a violation involving a controlled substance, unless it was marijuana for personal use.
Furthermore, documented immigrants can be deported if they are a drug abuser or addict, or have ever abused drugs after coming to the U.S.
Documented immigrants must also follow the local, state and federal constitution. They can be deported if they’re in violation of any constitutional provision, statute, ordinance, or regulation.
The most confusing section of deportable offenses is that of “moral turpitude.” Documented immigrants can be deported if they commit one crime involving moral turpitude within five to 10 years of getting residency status, or commits multiple crimes involving moral turpitude at any time.
The issue is that the definition of moral turpitude varies from state to state and judge to judge. The term was first used in the 19th century and means a crime that goes against standards for morals, justice, or honesty.
Even immigration attorneys have a hard time defining moral turpitude.
“It has changed so much and it keeps changing,” said Tim Warden-Hertz. “It generally is things that kind of involve theft or fraud or things that are more serious in some vague way. Generally, there has to be some intent – negligent things usually aren’t crimes involving moral turpitude.”
Crimes such as treason usually involve moral turpitude. But some states have also determined that minor crimes are moral turpitude, too. In Oregon, shoplifting is considered a crime of moral turpitude.
With any crime, Warden-Hertz says, the specifics can impact how a judge views the case or how a lawyer argues it, and whether a person ends up facing deportation.
Other crimes considered deportable offenses for documented immigrants:
-High-speed flight from an immigration checkpoint
-Violating the Military Selective Service Act or Trading with the Enemy Act
-Violating protection orders
-Falsely claiming citizenship
-Recruitment or use of child soldiers
-Crimes against children