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Detained and Criminal Immigration

Criminal Convictions and Deportation

If you are facing removal or deportation because of a criminal conviction, our office can help you. We have experience and expertise in criminal cases representing non-citizens facing deportation if convicted.

What is a Conviction when it comes to Immigration?

One of the most difficult things for a foreign national who has been charged with a criminal offense to understand is that in the world of U.S. Immigration (Inmigracion) a conviction is different than one would normally think.  Many times individuals believe their case was dismissed, or expunged and is no longer a problem.  However, I have to explain that per the Immigration & Nationality Act at 101(a)(48)(A), a conviction occurs in situations even when guilt has been withheld "a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed."

This means even if a "conviction" is later ultimately dismissed, dropped or expunged, the Immigration authorities will still deem it a conviction if their was a finding or admission of guilt AND some sort of punishment, probation, fine or penalty was imposed.

However, there may be room to argue that it is not a conviction or qualify for a waiver with a competent attorney.
  See Blog Entires: (1) Crespo, (2) Esposito, (3) Eslamizar

Post Conviction Relief

When options are limited before the Immigration Judge, a foreign national facing deportation before the Immigration Courts that are not able to forgive for past transgressions, can seek what is commonly known as Post-Conviction Relief (a.k.a. Corum Nobis, Writ of Audita Querella, Habeas Corpus Petitions).  These concepts have gained traction in recent times, especially after the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996.  The Immigration Courts were stripped of many powers, and Judges were no longer able to exercise discretion and grant many types of waivers or pardons.  As a result, immigration practitioners have sought to modify criminal convictions where the original intent of the Criminal Court Judge was to cause the foreign national to be banished from the United States.

There has been a tremendous amount of activity in this area, particularly with two recent Supreme Court Cases:  United States v. Denedo, and the  Padilla v. Kentucky (holding that the 6th Amendment requires criminal defense counsel to advise clients of the immigration consequences of criminal convictions, and a failure to do so constitutes ineffective assistance of counsel).

The Law Offices of Ricky Malik, P.C. can seek post conviction remedies, in other words trying to reduce or modify the criminal defense or will aggressively try to fight the government's efforts to remove you from the United States.

Trying to find a loved one or family member arrested or imprisoned by Immigration (ICE)

Try the online detainee locator system:  Find Me 

Some common problem areas

The Most Horrific: Mandatory Detention 

Section 236(c) of the Immigration and Nationality Act (INA) allows for the mandatory detention of foreign nationals who have committed crimes (or are inadmissible) when the alien is released from non-immigration custody.  The "when released" has been heavily litigated and the Board of Immigration Appeals (BIA) most recent interpretation eases on its prior harsh interpretation of the INA.  A foreign national can now only be taken into custody if he is "released" from detention that is directly tied to his ground of inadmissibility or deportability. Matter of Garcia Arreola, 25 I&N Dec. 267 (BIA 2010). 

Assault and Battery (including Domestic Violence)

Generally not a Crime of Violence, nor a Crime of Domestic Violence, unless evidence is admitted under modified categorical approach  (a method whereby the Court looks beyond the final conviction).  Assault and Battery is addressed by Board of Immigration Appeals in Matter of Velasquez

, 25 I&N Dec. 278 (BIA 2010), Fourth Circuit in United States v. White, 606 F.3d at 155, and the Supreme Court in Johnson v. United States, 130 S. Ct. 1265. 

Drug Crimes

The Supreme Court in Lopez v. Gonzales, 549 U.S. 47 (2006) held that in order for a drug crime to be an aggravated felony as defined in INA 101(a)(43)(B), the conduct, even if a felony under state law, as long as it was a misdemeanor under the Controlled Substances Act, it is not an Aggravated Felony.
Drug Paraphernalia

The Board of Immigration Appeals in Matter of Martinez Espinoza, 25 I&N Dec. 118 (BIA 2009) has determined drug paraphernalia offenses can render an alien inadmissible, but has left open the possibility for a foreign national to seek a 212(h) waiver as the language of the waiver section only requires a "relating to" 30 grams or less of marijuana.


The Board of Immigration Appeals in Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008) held that a single act of soliciting prostitution on one's own behalf does render one inadmissible under INA 212(a)(2)(D)(ii) which provides for the inadmissibility only for an alien who "procured . . . prostitutes or persons for the purpose of prostitution."  This is good news for an unfortunate many who may find themselves convicted of a single act of soliciting a prostitute.


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