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What happens to your immigration status if you were charged with a crime?

Posted by Arturo Angel Burga | Oct 22, 2024 | 0 Comments

Criminal Charges and Immigration Status in the 9th Circuit & California

In the Ninth Circuit (which includes California), the immigration consequences of criminal charges are governed by federal immigration law and case law, including Moncrieffe v. Holder and *Padilla v. Kentucky*. California's Penal Code is relevant when evaluating whether a conviction qualifies as a deportable offense under the Immigration and Nationality Act (INA). 

For non-citizens, certain crimes (like aggravated felonies, crimes of moral turpitude, or drug offenses) can trigger removal proceedings, denial of future immigration benefits, or inadmissibility. Under *Padilla*, attorneys must inform their clients about the potential immigration consequences of criminal convictions. Failure to do so can be grounds for ineffective counsel, which may affect criminal proceedings or post-conviction relief.

Common California Charges with Immigration Impacts

1. DUIs – While not always a deportable offense, multiple convictions or aggravating factors (e.g., injury or death) may lead to deportation.


2. Drug Offenses – Even minor drug-related offenses, except for possession of less than 30 grams of marijuana, can lead to removal.


3. Domestic Violence – Under California law, domestic violence convictions can be grounds for deportation as they often fall under the “crimes of moral turpitude” category.


4. Theft and Fraud – Convictions for fraud or theft involving moral turpitude within five years of admission can lead to removal.

Immigration Relief Options
In some cases, individuals may qualify for immigration relief, such as cancellation of removal or waivers under INA § 212(h). The Ninth Circuit has been key in interpreting the standards for qualifying for relief, especially under changing policies and executive actions.

Specific Case References from the 9th Circuit & California

1. Moncrieffe v. Holder (2013) – This U.S. Supreme Court case ruled that minor drug offenses, particularly those involving small amounts of marijuana, are not automatically considered aggravated felonies under the Immigration and Nationality Act (INA). This distinction is crucial for non-citizens convicted of low-level drug offenses in California.

2. Dimaya v. Sessions (2018) – The Ninth Circuit affirmed that the federal definition of a "crime of violence" under the INA was unconstitutionally vague. This case impacted many non-citizens facing deportation for certain criminal offenses in California.

3. California Penal Code § 273.5 – This section covers domestic violence, which can lead to deportation for non-citizens. In *U.S. v. Garcia-Jimenez (2016)*, the Ninth Circuit held that California's domestic violence statute could lead to deportation as it involves moral turpitude.

4. Padilla v. Kentucky (2010) – A landmark U.S. Supreme Court decision that emphasized the responsibility of defense attorneys to inform non-citizen clients of the immigration consequences of guilty pleas. This has wide implications in California, where defense attorneys must ensure their clients fully understand the immigration impacts of their decisions.

Here are some examples how we assisted other clients in the past:

1. DUI Conviction: A legal permanent resident (LPR) in Rancho Cucamonga is convicted of a DUI with injury (California Vehicle Code § 23153). The individual could face deportation due to the aggravated nature of the offense, particularly if the injuries are severe. Under Ninth Circuit precedent, the person may seek cancellation of removal but must show the conviction doesn't fall under aggravated felony definitions.

2. Petty Theft with a Prior Conviction: A non-citizen charged under California Penal Code § 484 for petty theft may face deportation if they have a prior conviction for the same offense. This is treated as a crime involving moral turpitude. Depending on the specific facts, an argument may be made that the crime doesn't qualify as a deportable offense under Moncrieffe v. Holder.

3. Drug Possession: A non-citizen is arrested for possession of a small amount of marijuana. Under Moncrieffe, if the amount is under 30 grams, the offense may not be considered an aggravated felony, potentially preventing removal proceedings. However, if charged with intent to distribute, deportation becomes more likely.

By examining each case's specific facts and how it interacts with 9th Circuit law, it's possible to tailor a defense strategy that aligns with both state and federal law. Working with an experienced immigration and criminal defense attorney in Rancho Cucamonga is essential to navigating these complexities.

Looking for an immigration and criminal defense attorney in Rancho Cucamonga, CA? If you've been charged with a crime, especially involving DUIs, drug offenses, or domestic violence, your immigration status could be at risk. Whether you're facing deportation or need advice on your legal options, our experienced Rancho Cucamonga criminal defense lawyer team can help. We specialize in navigating the complexities of both state and federal law, protecting your rights in California and under the Ninth Circuit rulings. Call us today for a free consultation!

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About the Author

Arturo Angel Burga

FOUNDER Arturo Angel Burga Mr. Burga began his solo practice in 2011. Since then he has grown to become a top-rated lawyer in his field. He was ranked as a Top Lawyer by Inland Empire Magazine and most recently was an invited as a speaker at the American Immigration Lawyers Association (AILA) A...

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