Criminal and Immigration Law in Chicago
Immigration and Criminal / Traffic Cases
You have been arrested and charged with either a violation of the Illinois criminal code, or a serious traffic violation, such as Driving Under the Influence, or having no valid license. You are worried because you know you are not a United States Citizen, and you wonder whether or not this will have a negative effect on your very right to be here in this country. While we here at Mitchell S. Sexner & Associates LLC. are not specialists in the areas of Immigration and Naturalization, we do concentrate in the areas of criminal and traffic laws and are sensitive to the concerns that our non-citizen clients have when facing charges in court. As such, we strive to achieve results that will avoid any negative impact on your legal status, or at least minimize any such effect as much as is possible under each unique case.
A natural-born United States citizen is not subject to removal (formally called deportation) and is admissible at any border crossing (with proper identification). With the exception of removal actions or admissibility objections at a border crossing predicated upon document fraud, fraud in the application process, etc. (such as Nazi war criminals that hid their status when they applied for admission and naturalization, later to be discovered by the government), naturalized citizens likewise cannot be removed or denied admission at a border crossing. It is Resident Aliens, Non-immigrant Business and Pleasure visitors, and those unlawfully present in the U.S. that have to “watch out”.
Immigration Warnings in Criminal Court
The U.S. Supreme Court decided several years back that the complete failure to advise a criminal defendant as to the Immigration consequences of a guilty plea to a drug charge constituted ineffective assistance of counsel, and an unknowing waiver of his right to a trial and to hold the government to its proof of “beyond a reasonable doubt”. Even before that decision, Illinois recognized the need to admonish foreign defendants that their guilty plea could have negative immigration consequences including removal, or that they may be denied admission at a border crossing. The law presently requires a Judge to state on the record:
If you are not a Citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of Naturalization under the laws of the United States.
Sometimes, the particular offense may have no effect whatsoever on one’s immigration status, but as the Judge is most likely unfamiliar with current immigration law or practice, he or she will likely give the admonishment because it is required by law. This often creates an awkward moment when the defendant then turns to his lawyer, with a look that says “what are you doing to me”? In circumstances where the lawyer has failed to forewarn his client of this stage of the plea, it may require the plea proceedings to be stopped until the defendant can consult with his attorney regarding this development, causing an unnecessary delay and anxiety for all concerned.
Lawful Permanent Residents (“Green Card”) Concerns
So how does one know whether or not a given case may have a negative impact on their immigration status? One needs to read the United States Code, Code of Federal Regulations and Opinions of the Attorney General; not an easy endeavor. But an effective attorney will know how your particular immigration status may be adversely affected by a criminal or traffic charge by doing so on your behalf.
If you are here in the USA as a Lawful Permanent Resident (commonly called a “Green Card” recipient), you enjoy the same rights and privileges as US Citizens do, except that you cannot vote in any election, and you are limited to how long you may travel abroad outside the US borders, territories or commonwealths (Guam, Puerto Rico, etc.). “Green Cards” are presently issued with 10 year expiration dates, in order to encourage people to seek naturalization. Of course, one may maintain LPR status indefinitely, but the card must be renewed when it expires, or when the document is no longer valid proof of status. So, card renewal or application for naturalization are events that will likely bring scrutiny from the USCIS (the United States Citizenship and Immigration Service), and possibly from ICE (Immigration Control Enforcement).
If you are here lawfully as a visitor, you are more restricted in your ability to leave the USA and then return, you cannot own real estate, or otherwise establish yourself permanently, and a criminal or traffic case may raise concerns at a border crossing the next time you try to enter the USA on a visitor visa. If you are presently here unlawfully, either by an initial entry without being inspected and without a passport and visa, or by overstaying a visa after it expired and remaining unlawfully, you have no freedom to “come and go ” from the USA, and any entanglements with law enforcement may land you in “removal” proceedings simply due to your unlawful status. Therefore, this discussion will focus entirely upon what will cause one to be either removed from a lawful status, or barred admission at a border crossing upon inspection and interview.
The Immigration and Nationality Act details the many bases for which an alien may be denied entry at a border crossing due to being inadmissible. Another section details those aliens subject to removal proceedings for their criminal conduct. Both sections detail various offenses and sentences that will result in denial of admission or removal. But all of them, with one exception, require a “conviction” as defined by the Immigration and Nationality Act. The failure of some practitioners to appreciate that what constitutes a “conviction” as defined by law in Illinois is vastly different than the immigration definition often can result in consequences not anticipated.
What is a Conviction for Immigration Purposes in Chicago?
As defined by immigration, a “conviction” involves ANY finding of guilt, whether by a trial before a judge, a jury or upon a plea of guilty. However, it does not end there, as ANY admission to fact(s) that can support the elements of a criminal offense can be used in the same way as a finding of guilty, even if no criminal charges were brought, or if the charges were amended to a lesser or other offense. Contrast that to Illinois, where we have deferred dispositions like court supervision, and deferred prosecutions such as the Offender Initiative Program, which are not considered convictions in Illinois, but will be considered “convictions” by the immigration authorities. So, it is very important to know what charges will result in automatic action, what charges will have no immediate effect, and those charges that, in cumulative effect with prior offenses, may trigger negative action.
Effect of Traffic & Criminal Convictions on Immigration
When it comes to traffic violations, the good news is that most of them should have no immediate effect on one’s immigration status by themselves, because they do not fall under the categories of cases that would trigger immediate action. The following types of cases will result in the removal of an otherwise lawfully present alien, even a Lawful Permanent Resident:
- Crimes involving moral turpitude, which is an offense involving fraud, dishonesty, or physical harm to another, such as theft, forgery, battery, etc. committed by a person within 5 years of his entry to the United States, or 10 years after in the case of a government “snitch” or informant that is granted adjustment of status to lawful resident in exchange for his help in prosecuting certain offenses;
- Multiple criminal ‘convictions’ involving two or more crimes of moral turpitude (separate instances);
- An aggravated felony, such as murder, rape, sexual abuse of a minor, drug trafficking, trafficking in firearms or destructive devices, money laundering, and a host of weapons and drug related offenses, child pornography, RICO/organized gambling, kidnapping/ransom demand offenses, or running a house of prostitution, etc. Also, crimes of violence where the sentence may be one year or more in prison and property crimes such as theft, burglary, and possession of stolen property, if they carry a sentence of one year or more, etc.
- A violation of Title 18, United States Code, Section 758, dealing with High Speed Flight from an immigration checkpoint; and
- Failure to register as a sex offender
It is notable that for numbers 1-4, a full Presidential Pardon of the offense will allow for a waiver of the removal proceeding, but not number 5 above.
Other offenses that will result in immediate/automatic removal proceedings are any offenses involving controlled substances (such as cocaine or heroin), with the exception of a single offense of simple possession of under 30 grams of Cannabis. A person found to be a drug abuser or addict is also subject to removal. Any sort of firearms offense (in Illinois, Unlawful Use of a Weapon, the possession of a firearm without a valid FOID, or any other violation involving the use of a firearm), any violation involving domestic violence, stalking, child abuse or neglect, child abandonment, or violating an order of protection’s proscriptions against threats of violence, repeat harassment or infliction of injury.
Crimes & Offenses May Deny Admission at Border Checkpoints
Of course, an individual may not be subject to forced removal due to their record, but he or she may be found to be otherwise “inadmissible” for entry into the United States at a border crossing. So, let us say someone here lawfully leaves the country and tries to come back. The inspectors at the checkpoint determine that you have a criminal arrest history that raises “red flags.” Upon further investigation, they determine that you are not admissible with your visa, and you are going to either be denied entry and turned back, or perhaps admitted for “parole”, which would require you to appear at the immigration offices to be “inspected” further by an officer, at which point you would get the chance to show documentation that makes you admissible, or be removed on the basis of being inadmissible.
Even a Lawful Resident Alien may be deemed “inadmissible” at a border checkpoint if he or she has a criminal record that, while it may not qualify for removal, causes the denial of entry. Among the various criminal bases for denying an alien admission under the United States Code are:
(A)(i) Anyone who is convicted, or who admits to having committed, or admits to acts which constitute the elements of:
(I) A crime involving “moral turpitude” which is not a “purely political” offense, or any attempt to commit, or conspiracy to commit such a crime; or
(II) A violation of, or attempt, or conspiracy to violate any law or regulation of a State, the United States, or any foreign country of a Controlled Substance as listed in Title 21, United States Code, Section 802
NOTE: There is a “Single Offense” exception to the above, in the case of a person under the age of 18 at the time the crime was committed, and who was released from probation or other sentence or confinement more than 5 years prior to the Visa Application OR the maximum penalty for said offense is less than one year in prison, and the actual sentence imposed was less than 6 months in custody.
(B) Multiple Criminal Convictions—2 or more convictions as defined above for which the number of years in jail sentenced to (not actually served) when you add them up is 5 years or more;
(C) Controlled Substance Traffickers—This basis is slightly different, and one can call this the “Escobar” or “Chappo” rule, where an individual may be denied admission when the Consular Officer, or the Attorney General knows or has reason to believe that he or she:
(i) is or was an illicit trafficker in any controlled substance or chemical, or is/was an aider, abettor, assister, conspirator or colluder with others to traffic illicit substances; OR
(ii) is the spouse or child of an inadmissible alien under (C)(i) above, and has, within the 5 previous years obtained financial or other benefit from the illicit activity and knew or reasonably should have known the illicit source;
(D) Prostitution or other Commercial Vice—individuals coming to the USA intending to engage in acts of prostitution, or who have done so within 10 years of the Visa application, individuals engaged in running a house of prostitution, or “pimping”, or other organized commercialized vice activity;
(E) Anyone involved in a “serious criminal offense” that asserted immunity from prosecution and who seeks reentry—this is defined as any felony, any crime of violence, or reckless driving, DWI, or DUI if personal injury to another resulted.
So, let us say that while you were here visiting Chicago in the past, you picked up a DUI case as a first offense, that did not involve an accident. Ultimately, you were found guilty, and sentenced to Court supervision, which you successfully completed. In Illinois, you were not convicted, but under Federal Law, you were. At the border checkpoint, the agent discovers your DUI record. It is not immediately known (nor could it be) whether or not your case involved “personal injury to another.” With no other criminal or other bases to deny you admission, it is most likely that you will be admitted “on parole”, and you will be required to submit to further inspection at an interview in the future. As long as your case did not involve personal injury to another, you should be fully admitted under whatever lawful basis applies.
Call Our Chicago Immigration Crime Defense Lawyers Today for a Free Consultation
The above is not an all-inclusive list of any and all possible reasons one might be denied admission into, or removed from, the United States. If you are concerned regarding your personal situation, you should seek out the individualized advice that you need from a licensed attorney that specializes in immigration matters. But you should also call the Chicago defense attorneys at Mitchell S. Sexner & Associates LLC. at (800)996-4824 for a free consultation for help addressing any underlying criminal or traffic concerns that may affect your status. Call today without obligation or cost.