Ans:

The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 "IIRIRA" and the Anti-Terrorism and Effective Death Penalty Act of 1996 "AEDPA" expanded the criminal grounds for which an alien could be found inadmissible or deportable and reduced the avenues of relief.

Every alien who attempts to enter the United States must apply for admission at the border. An alien is defined as "any person not a citizen or national of the United States" in INA § 101(a)(3). Aliens are denied admission into the U.S. for a wide range of reasons from medical to criminal. INA § 212(a)(2) lists the criminal and related grounds for inadmissibility. The criminal grounds for inadmissibility are similar to the criminal grounds for deportability found in INA § 237(a)(2).,

Aliens who fall into one of the categories listed below are now inadmissible to the United States unless they obtain a waiver or they can claim an exception.

1. Convicted of a crime involving moral turpitude or a violation relating to controlled substance;
2. Convicted of two or more offenses for which the aggregate sentences to confinement were five years or more; or
3. Engaged in prostitution, procure or attempted to procure prostitutes or engaged in any other unlawful commercialized vice.

An alien can claim an exception to the crime involving moral turpitude if:

1. she was under the age of 18 when the crime occurred, and
2. where the crime occurred more than five years ago.

An alien of any age can also claim an exception if the maximum penalty possible for the crime of moral turpitude did not exceed a prison sentence of one year and the alien was not sentenced for more than six months.

A lawful permanent resident can not obtain INA § 212(h) relief from deportation if:

1. He/she has been convicted of an aggravated felony or
2. He/she has not lawfully resided continuously in the United States for at least seven years immediately proceeding the initiation of proceedings to remove the alien.

If permanent resident is convicted of a criminal offense, he can be deported from the United States. For violent crimes and narcotics offenses, the I.N.S. will typically pick up the alien after he has completed his jail sentence and place him in an I.N.S. hold. Deportation proceedings would then begin immediately. INA § 237(a)(2) lists the criminal offenses for which permanent residents can be deported. The offenses can be grouped as follows:

1. Conviction of a crime involving moral turpitude, for which the maximum possible sentence is one year or longer;
2. Convicted of two or more crimes of moral turpitude regardless of possible sentence;
3. Convicted of an aggravated felony;
4. Convicted of high speed flight from an immigration checkpoint;
5. Convictions relating to controlled substances other than a single offense involving possession for one's own use of 30 grams or less of marijuana;
6. Convictions for most firearms offenses; or
7. Conviction for a crime of domestic violence and violation of protective orders.

In order to qualify for relief from removal from the United States under INA § 240A(a), if the alien must :

1. Have been a green card holder for at least five years;
2. Have continuously resided in the United States for seven years after having been "admitted in any status;" and
3. Have no conviction for any aggravated felony.

Please note that relief is discretionary, not mandatory. The term "aggravated felony" is defined in INA § 101(a)(43) and covers many common offenses such as theft or burglary for which the term of imprisonment is at least one year. A careful study of the definition of "aggravated felony" is necessary in order to assist permanent residents in pleading to lesser offenses and thus avoid possible deportation consequences.

In conclusion, if an alien comes to your office seeking representation in a criminal matter, you must determine what, if any, immigration consequences would arise from a criminal conviction. Once all possible immigration consequences have been determined, you must fully informed the alien of the possible consequences and assist her in determining whether to plea bargain to a non-immigration affected offense or to risk going to trial on the merits.