A Simple Guide to “Crimmigration” Law
By Neil J. Levine
The interaction between criminal law and immigration law, otherwise known as “crimmigration” law, is dynamic and complex; and the overlap has become even more pronounced in recent years, to the point where unless you are limiting your criminal defense
practice to only United States citizens, you are bound to encounter these issues. To attempt to simplify this complex overlap, this article presents a series of memorable acronyms to help criminal attorneys better identity which crimes have immigration
consequences and what those consequences are. As you might imagine, though, this should be no substitute for a full legal analysis.
First, a preamble. “Deportable” is a term of art which has a different legal meaning from the way it is commonly used on the evening news. In general, only a person who has previously been admitted and gone through Customs is “deportable.”1 In other words, a person who walks through the desert in the night to enter the United States and is found in Illinois by the Immigration and Customs Enforcement, a.k.a “ICE,” three years later, for example, is not deportable. In such a situation, this person would still be removed from the United States, but that would happen because he or she is here without having first been admitted. This person would be legally “inadmissible” – the same as if they had shown up at Customs with their hands in their pockets with no passport or visa, and had asked to be admitted. Other examples of being legally inadmissible include: situations where people may have visas to enter the United States, but may become inadmissible based on certain convictions they have acquired;2 or situations where people may be convicted of certain crimes within the United States that do not necessarily make them deportable, but will make them legally inadmissible if they leave the United States and try to return. All this said, the crimes that trigger deportability and inadmissibility are not the same.
With that context, the next series of acronyms apply only to “deportable” people – meaning people who on their most recent entry, were admitted into the United States, either by Green Card, tourist visa, asylum, or some other way, and are subject to removal because they have been convicted of a deportable-qualifying crime.3 In order to remember which crimes qualify as deportable crimes, the following acronyms should help:
Deportable crimes include:
A = Fire“A”rms.4 An example includes the possession of a gun without a Firearm Owners Identification card, (“FOID card”).
DV = Domestic Violence.5 The Immigration and Nationality Act, (“INA”), utilizes and incorporates the federal definition of Domestic Violence. Under the INA, “Domestic Battery” rising to the level of bodily harm constitutes a deportable offense.
A = Aggravated Felonies.6 See below for a more in-depth review.
N = Narcotics.7 Notably, a deportable offense under this Section does not include the one-time possession of cannabis for one’s own use if it is 30 grams or less.8 If, on the other hand, it is a second time, or more than 30 grams, or if it is cocaine, heroin, or something else, the individual would have engaged in a deportable offense. In Illinois, however, the Seventh Circuit recently ruled that convictions under 720 ILCS 570/402(c) do not constitute a deportable offense.9 Be careful, however, because convictions under other parts of 720 ILCS 570 still make one deportable.10
C = Crimes involving moral turpitude, (“CIMT”).11 In general, CIMTs involve fraud, or premeditation, or theft, or knowingly causing bodily harm.12 Even more generally, it is the federal definition of “conviction” that governs – and, yes, “supervision” is a conviction for immigration purposes.13 What is important to distinguish, however, is that one is not deportable for one conviction of a misdemeanor CIMT. One is also not deportable by virtue of being convicted of a felony CIMT, if they have no other CIMTs and they committed the felony more than five years after being admitted to the United States.14
E = Enjoinments.15 These offenses involve the violation of orders of protection, civil no contact orders, or no stalking orders.
S = Safety of children.16 Examples include child neglect, abuse and abandonment.
As indicated above, the second “A” in ADVANCES stands for Aggravated Felonies. The following acronym explains what crimes constitute “Aggravated Felonies:”
M = Murder.17
O = Offending justice.18 The statute actually says “Obstructing Justice,” but if I were to say that you would think that a fake name to a cop would be an aggravated felony, and it is not. It is the federal definition of “Obstructing Justice” that governs here, and that is satisfied by a crime punishable by imprisonment of at least one year which endangers the judicial process – i.e.: perjury, bribing the judge, paying off the jury.
R = Rape.19 Criminal sexual assault and aggravated criminal sexual assault, as defined by statute.
E = Evading court.20 More specifically, if an individual is convicted of violating their Bail Bond for vanishing after posting on a felony, that conviction is an aggravated felony, even if the underlying felony would not have been one.
V = Crimes of Violence21 for which an individual is sentenced to one year or more in prison.
A = Artifice,22 (otherwise known as “fraud”), in which a victim has sustained damage exceeding $10,000.
C = Child pornography.23
A = Attempt24 to commit any of the crimes in this section. As an example, a conviction of first-degree murder is an aggravated felony, and so is one of attempted first-degree murder.
T = Theft/Burglary,25 punishable by one year or more of prison.
10 = This portion of the acronym harkens back to the $10,000.00 threshold applicable to crimes of fraud. See “A” for “Artifice.”
N = Narcotics.26 This applies to crimes involving drug trafficking and drug dealing.
S = Sexual abuse of a minor.27
!!! = The three exclamation points symbolize three “1’s.” They are a reminder that Offending Justice, Crimes of Violence, and Theft crimes only become Aggravated Felonies if the sentence is one year or more of prison.
Having addressed deportability, it is important to understand what crimes apply in the context of “inadmissibility.” The following acronym details the applicable crimes:
P = Prostitution.28
AN = Narcotics.29 This includes an individual’s admission of the elements constituting a narcotics crime. Notably, the exceptions discussed above in “N” of ADVANCES do not apply in the admissibility context.
AC = Admissions to the commission of a CIMT.30 Recall that a person is not deportable for committing a felony CIMT if they committed it more than five years after they were admitted. That rule has no analog in the admissibility context. On the other hand, a misdemeanor CIMT, generally, does not make a person deportable – assuming they have no other CIMTs. This rule partly applies in the admissibility context – one misdemeanor CIMT, six months or less of jail, does not make one inadmissible.31
E = Expectation.32 If the U.S. Government has reason to believe a person is involved in drug trafficking, that person will be deemed inadmissible.
A = Attempted CIMT.33
25 = Two or more convictions, CIMTs or otherwise, whose sentences add up to five years or more.34
Having addressed the applicable crimes your non-U.S. citizen client may encounter, another aspect to be mindful of is whether your client is eligible for bond. Stories are rampant that it can take years to remove someone – and it often does. It is possible that during that time, the law might change, such that a person might develop an additional form of relief from removal. It is also possible that over the years, the person’s life might change such that he or she has an additional form of relief from removal – i.e. marriage to a U.S. citizen or having a child within the United States. Not withstanding the often-lengthy bureaucratic process, however, clients should know that there are some convictions which will make them ineligible for an immigration bond. This means that they will sit in an immigration detention center for the duration of their removal case.
So which crimes make a person ineligible for an immigration bond? The answer can be found in the following memory acronym, inspired by Cubs superstar, Ernie Banks and his 512-home run record:
E = Ecstasy,35 and more generally, drug crimes.
B = Ballistics,36 meaning convictions involving guns.
A = Aggravated Felonies.37
NKS = This stands for “Not Known, See the Sentence.”38 What it means is that no bond can be given to a person who is: inadmissible and who has been convicted of a misdemeanor CIMT and was sentenced to over six months of jail; or to a person who is inadmissible who was convicted of a felony CIMT regardless of the sentence imposed.39
51 = This applies when an individual commits a CIMT less than five years after having been admitted and gets sentenced to one year or more in prison.40
2 = This applies to convictions of two or more CIMTs, regardless of how much time has transpired between them.41
Suppose you have no choice and you must plead your client guilty. Now what? It is likely best practice to structure your plea such that the client will have a defense in immigration court. The most common defense is “cancellation.” Cancellation is a waiver given by the immigration judge after having considered all evidence and determining that justice would best be served by giving your client a break and letting him or her stay here. A person is eligible for cancellation once in his lifetime, if he gets it at all.
There are two types of cancellations. The first type applies when a legal permanent resident, (“LPR”), had the Green card at least 5 years prior to the commission of the crime, had been legally admitted to the U.S. at least seven years prior to the commission of the crime, and has no MORE VACAT10NS!!!crimes.42 Recall, however, that this person will stay in custody while fighting their removal, even if they had received no jail time in criminal court, if they had been convicted of an EBANKS512 crime.
The second type of cancellation is usually utilized by undocumented people. In this context, an undocumented person can become an LPR if he or she can show at a hearing that they had been in the U.S. for at least ten years prior to the start of removal proceedings, has had good moral character during that time, has no ADVANCES or PANACEA25 crimes, and has a U.S. citizen or Green card holding spouse, parent, or child who would suffer “exceptional and extremely unusual hardship” if the person were removed.43 As a matter of law, however, one cannot show that they have good moral character if they have been sentenced to 180 days jail in the aggregate, regardless of what the crimes were.44 Further, even if a person’s prior convictions do not add up to 180 days in jail, many judges will deny cancellation in their discretion if they see multiple convictions.
As is evident, there is much interplay between criminal law and immigration law. With these simple acronyms, criminal attorneys can stay vigilant in identifying these issues and planning litigation strategy.
1. See generally, 8 U.S.C. § 1227.
4. 8 U.S.C. § 1227 (a)(2)(C).
5. 8 U.S.C. § 1227 (a)(2)(E).
6. 8 U.S.C. § 1227 (a)(2)(A)(iii).
7. 8 U.S.C. § 1227 (a)(2)(B).
9. Najera-Rodriguez v. Barr, 926 F.3d 343 (7th Cir. 2019).
11. 8 U.S.C. § 1227 (a)(2)(A)(i).
13. 8 U.S.C. § 1101 (a)(48)(A) (other convictions include: Sections 710 and 410 probation; TASC, Second Chance Probation, Drug Court, Domestic Violence diversion programs, and anything else pled guilty to, regardless of whether the plea may get vacated after completion of a program).
14. 8 U.S.C. § 1227 (a)(2)(A)(i).
15. 8 U.S.C. § 1227 (a)(2)(E).
17. 8 U.S.C. § 1101 (a)(43)(A).
18. 8 U.S.C. § 1101 (a)(43)(S).
19. 8 U.S.C. § 1101 (a)(43)(A).
20. 8 U.S.C. § 1101 (a)(43)(T).
21. 8 U.S.C. § 1101 (a)(43)(F).
22. 8 U.S.C. § 1101 (a)(43)(M).
23. 8 U.S.C. § 1101 (a)(43)(I).
24. 8 U.S.C. § 1101 (a)(43)(U).
25. 8 U.S.C. § 1101 (a)(43)(G).
26. 8 U.S.C. § 1101 (a)(43)(B).
27. 8 U.S.C. § 1101 (a)(43)(A).
28. 8 U.S.C. § 1182 (a)(2)(D).
29. 8 U.S.C. § 1182 (a)(2)(A)(i)(II).
30. 8 U.S.C. § 1182 (a)(2)(A)(i)(I).
31. 8 U.S.C. § 1182 (a)(2)(A)(ii).
32. 8 U.S.C. § 1182 (a)(2)(C).
33. 8 U.S.C. § 1182 (a)(2)(A)(i)(I).
34. 8 U.S.C. § 1182 (a)(2)(B).
35. 8 U.S.C. § 1226 (c)(1)(A); 8 U.S.C. § 1226 (c)(1)(B).
36. 8 U.S.C. § 1226 (c)(1)(B).
37. Supra at note 35.
38. 8 U.S.C. § 1226 (c)(1)(A).
40. 8 U.S.C. § 1226 (c)(1)(C).
41. Supra at note 35.
42. 8 U.S.C. § 1229a(a).
43. 8 U.S.C. § 1229a(b).
44. 8 U.S.C. § 1101(f)(7).
Neil J. Levine is a 1990 graduate of Georgetown University Law Center, was a member of the DuPage County Public Defender’s Office from 1992 to 2007. He is now in private practice and concentrates in criminal defense matters and immigration law.