AT the National Federation of Filipino American Associations Region 10 Regional Empowerment Conference in National City on March 25, 2017, I was asked this question: There are many in our community who are non-US citizens who are in fear of deportation. May you clarify for us what it means to be in deportation? What would you say to our community regarding the slew of immigration orders and policies that have been on the news lately? Below are what I would say, as an introduction, to what it means to be in deportation according to current immigration laws.
What does it mean to be in deportation? Firstly, let’s talk about when is a person deportable? Pursuant to the Immigration and Nationality Act (INA), even a green card holder is removable or deportable if that person – (i) has been convicted of a crime involving moral turpitude within 5 years of admission into the United States; (ii) has been convicted of a crime for which a sentence of one year or longer may be imposed; (iii) is convicted of two or more crimes involving moral turpitude at any time after his/her admission into the U.S.; (iv) is convicted of an aggravated felony at any time after admission into the U.S.
The Notice to Appear. Typically, deportation proceedings begin with the issuance of the Notice to Appear (NTA). The Notice to Appear is a charging document issued by an authorized agent of the U.S. Department of Homeland Security to noncitizens who the government believes are inadmissible or removable. The NTA is issued to place a noncitizen in a full removal proceeding before an immigration judge, who will determine whether the noncitizen will be removed or allowed to remain in the United States.
When an individual is issued with an NTA, there is a court-date. It is imperative that the noncitizen attend this court date. Then, the individual will have to plead – that is, admit or deny the charges as stated in the NTA, and state some sort of relief that s/he will pursue as a defense.
So, in most cases, deportation does not happen in an instant. There is a process that is followed, and it is important to know how to navigate the proceedings.
The Kelly Memorandum of February 20, 2017. On February 20, 2017, the Department of Homeland (DHS) Security Secretary John Kelly issued a new policy memorandum, announcing that DHS will no longer exempt classes or categories of removable aliens from potential enforcement. Pursuant to the Kelly Memorandum of February 20, 2017, noncitizens are removable if they – (i) have been convictted of any criminal offense; (ii) have been charged with any criminal offense that has not been resolved; (iii) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; (iv) have abused any program related to receipt of public benefits; (v) are subject to a final order of removal but have not complied with their legal obligation to depart the U.S.; (vi) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Negative Consequences of Criminal Conviction. The best advice I can give anyone is that prevention is always better than trying to find a cure. The Record of Conviction details an individual’s criminal history. More importantly, the relief(s) available to an individual facing deportation will depend largely on that individual’s record of conviction. Thus, even “just a misdemeanor” can make a non-citizen deportable, even if that person is a long-time green card holder and has lived in the United States for 20 years. Therefore, it is very important to understand that before taking a plea deal, consult with a deportation defense attorney.
No two cases are exactly the same. Consult with an experienced and competent immigration attorney immediately, and more importantly prior to filing any applications with the USCIS, or prior to pleading to anything in any court, in order to explore their options and possible legal ramifications that they might be facing. As always, be wary of online tools that offer immigration help or notarios who are not licensed to practice law.
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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; [email protected]. For general information visit www.chuatinsayvega.com.
