Getting arrested will have a decided impact on your life, but the situation may be more dire if you are an immigrant in the United States. Similarly to most states, getting arrested in Massachusetts may negatively affect your immigration status.
How an arrest will impact your immigration status often depends on the type of crime for which you were arrested. Not every criminal charge will have direct consequences on a person’s immigration status. For example. If you are arrested for reckless driving in Massachusetts it is unlikely that this will affect your immigration status, because it is not a violation of any immigration law. On the other hand, if you are arrested and charged with a minor shoplifting offense, which is an immigration violation, then you could potentially face some issues with your immigration status.
Contact our immigration and criminal defense lawyers at FitzGerald Law Company at (617) 303-2600 to learn more about how a criminal charge can affect your current and future immigration status in the US.
Will an Arrest Cause Trouble with Your Immigration Status in Massachusetts?
In general, any criminal charge may have a negative impact on your immigration status. Criminal convictions may cause the Immigration Service (USCIS) to deny an application, start deportation/removal proceedings, detain or imprison an individual. If you are not a U.S. citizen and you are facing criminal charges, you should have your case reviewed by a lawyer who understands and is experienced in both immigration and criminal law.
There are two types of criminal charges that have serious consequences under the immigration law: “aggravated felonies” and “crimes of moral turpitude”.
Crimes of moral turpitude are those involving an act of moral deficiency, for example, shoplifting, fraud, theft, domestic violence, crimes of abuse, as well as others. Aggravated felonies are generally serious drug cases, crimes of violence, gun charges, fraud, and sexual assaults.
What is an Aggravated Felony in Massachusetts?
A felony is a term for a category of crimes that are generally more serious or have punishments or sentences that are more severe. For example, under federal law, a felony is a crime for which the potential prison sentence is one year or more. Under the state law of Massachusetts, a felony is a crime for which the sentence may be served in state prison instead of a county jail.
An “Aggravated Felony”, however, is a crime defined in the Immigration and Nationality Act. In 1996, Congress expanded the definition and type of offense considered an “Aggravated Felony” under the immigration law. Any non-citizen who has been convicted of an “Aggravated Felony” will face a number of severe consequences under the immigration law, for example, any conviction for an “aggravated felony” on or after November 29, 1990, will bar the person from establishing good moral character (GMC) for naturalization, which will prevent them for becoming a U.S. Citizen.
There are numerous consequences, that range from being subjected to mandatory detention during deportation/removal proceedings under INA § 236(c) to being ineligible for various procedures to obtain residency or being ineligible for TPS or most non-immigrant visas.
What are Crimes Involving Moral Turpitude in Massachusetts?
Massachusetts does not have crimes that are defined as “Crimes Involving Moral Turpitude” as that is a definition set forth in the federal immigration law. The courts have defined a Crime of Moral Turpitude as a crime involving conduct that is base, vile, or depraved and contrary to the rules of morality accepted by society. (See Mejia v. Holder, 756 F.3d 64, 68 (1st Cir. 2014)) For an immigrant, any foreign national who is not a U.S. Citizen, being convicted of a “Crime Involving Moral Turpitude” (CIMT) will have serious consequences. There are several sections of the Immigration law that set severe penalties for non-citizens who have a conviction for this type of offense.
For example, an individual with Legal Permanent Residency can be removed/deported from the U.S. if they are convicted of even a single CIMT within 5 years of the grant of their resident status. Similarly, a conviction for a crime of moral turpitude will render an individual ineligible for DACA, most non-immigrant visas, and numerous other immigration benefits. In addition to making an individual ineligible for an immigration status they want or causing the loss of an immigration status that they have (LPR, Student, etc.), a conviction for a CIMT can be used by an immigration officer to deny an application at their discretion. It is critical to understand your circumstances and to obtain assistance from a law firm experienced in both criminal and immigration law if you are an immigrant and have been accused or convicted of a crime involving moral turpitude.
Common Types of Crimes That Could Affect Your Immigration Status in Massachusetts?
There are numerous crimes that can affect your immigration status if you are arrested. The ones mentioned below serve as a quick reference guide for what are considered Crimes Involving Moral Turpitude , Aggravated Felonies , as well as other offenses that have serious immigration consequences:
Drug Trafficking and Drug Dealing
Our Boston criminal defense lawyers have extensive experience defending the two major categories of narcotics or drug violations: possession and distribution. It is illegal to possess a substance defined under federal and state law as a “controlled substance” without authorization.
Possession includes having a “substance” physically on your person (jacket, bag, pocket, …) or in an area that you control (your house, car, apartment, yard…).
It is also illegal under federal and state law to distribute, sell, or transfer a substance defined as a “controlled substance” to another person without proper government authorization, this is considered “Trafficking.” Possession of a controlled substance may be prosecuted as distribution or trafficking if there is evidence of the person’s intent to sell or transfer. In some cases the weight or amount of drugs will be sufficient to prove the person’s intent to distribute.
Drug trafficking crimes are Aggravated Felonies, however, while the crime of simple possession of illegal drugs is not an aggravated felony, it can still cause the individual to be denied a visa, entry to the U.S., or to be deported.
Theft and Shoplifting
It is illegal to take, steal or embezzle with intent to convert the property of another. There is a wide array of penalties for theft depending upon the nature of the item stolen, its value, whether force or violence was employed, and the characteristics of the victim from whom the item was taken (penalties tend to be higher if the victim is a “weaker” person, i.e., child, elderly person, mentally disabled, etc.).
Theft offenses are almost always a CIMT, but sometimes they can even be considered an “Aggravated Felony,” under the Immigration Law, depending on the sentence that is issued (if it is 1 year or longer) or the amount of money that was taken (if it is more than $10,000.00).
Crime of Domestic Violence / Assault & Battery on a Family or Household Member
In Massachusetts it is unlawful to commit an Assault & Battery on a family member. An assault is an action that places another person in reasonable fear or apprehension of an immediate battery. Battery is the harmful or offensive touching of another person without justification or excuse. The incidents become more serious if a dangerous weapon is used, or severe injury is caused. The penalties for this type of crime range from a prison sentence to a period of probation, depending upon several factors, including the criminal history of the defendant, the nature of the force or violence, the type of injury that resulted, and the characteristics of the victim (child, elderly person, mentally disabled, sick or infirm…).
Crimes of Domestic Violence are a basis upon which a person can be deported/removed from the U.S. under the Immigration Law, INA Section 237(a)(2)(E).
Operating or Driving a Motor Vehicle Under the Influence of Drugs or Alcohol (OUI / DUI)
In general, it is unlawful to operate a motor vehicle on a public road or way while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants, or stimulant substances. The penalties for these criminal charges include probation or a jail sentence depending upon the number of times that a person has been convicted previously and whether there was serious damage to persons or property. The courts and prosecutor will routinely require the completion of an alcohol or substance abuse education program as part of any sentence.
It is rare that an OUI conviction will directly impact an immigration case but they certainly can cause delays, as many petitions cannot be completed if the person has an open criminal case or if they are on probation.
Our Immigration / Criminal Attorneys Can Help
Our Boston Immigration / Criminal lawyers have a successful track record in both areas of the law and can help you learn more about your legal options and devise an effective strategy for your case. If you are an immigrant or have been arrested the experienced attorneys of FitzGerald Law Company can assist you. Call today to schedule a consultation at (617) 303-2600.