Seattle Immigration Lawyer | Permanent Residents Convicted of Crimes

A good immigration attorney should know how to obtain a waiver for his or her client from deportation when the client has been unfortunate enough to be convicted of a crime. Even though a client may be deportable based on the criminal conviction, qualifying lawful permanent residents (LPR) may be eligible for the LPR cancellation of removal waiver (INA 240A(a)), and keep their LPR status. The time to apply for this waiver is when you are in removal proceedings. The Immigration Judge has the discretion to deny the waiver even if the client meets the statutory requirements.

Here’s the statutory test: removal may be canceled if the alien—(1) has been an alien lawfully admitted for permanent residence for not less than 5 years; (2) has resided in the US continuously for 7 years after having been admitted in any status; and, (3) has not been convicted of any aggravated felony.

Assuming the first two requirements are not at issue, the key issue is whether the conviction qualifies as an “aggravated felony” as defined by the federal immigration statute, INA 1101(a)(a)(43). It is crucial to understand that many misdemeanors are “aggravated felonies” under immigration law and not all felonies are “aggravated felonies.” If you are shopping for an immigration lawyer and he or she does not know this, do not even think about hiring that attorney.

When an immigration attorney analyzes your conviction, there is no substitute for a close reading of the statutory definition and current court decisions, as offenses are reclassified frequently by federal appeals courts. They are not all obvious; in fact, sometimes even clients that have served long prison sentences may still be eligible for cancellation of removal. Some of the more popular aggravated felonies are crimes of violence, theft offenses, and fraud. Some of the offenses listed in the statute specify monetary amounts of funds stolen, the term of imprisonment served, or, the term of imprisonment that the offense is punishable by—notice the distinction here. Also, a good immigration attorney will consider the possibility of reopening a client's criminal court case, as any changes will be binding on the Immigration Court.

Now, just because you pass the aggravated felony test does not mean you are safe from deportation due to a criminal conviction. Coming up, I will discuss how to tell if a conviction qualifies as a “crime involving moral turpitude,” which can also be grounds for deportation of an LPR.