HOUSTON IMMIGRATION & NATURALIZATION ATTORNEYS
Serving Clients in Houston, West Houston, Southwest Houston, Sugar Land, Katy, Copperfield, Memorial, Spring, Northwest Houston, Northchase, Spring Cypress, Champion Forest, The Woodlands, Kingwood, Humble, Lake Houston, Midtown, Memorial, West Oaks, Royal Oaks, Clear Lake, League City, Westchase Business District, Harris County, and Galveston County.
Deferred Adjudication and Immigration Consequences
By The Houston Immigration Attorneys at Law Offices of Steven Tuan Pham
In one of my previous article, I have stated that:
"The Illegal Immigrant Reform And Immigrant Responsibility Act of 1996 (IIRIRA) stipulates crimes that are removable (deportable) for foreign nationals, including U.S. permanent residents. Among these crimes, those that are classified as “aggravated felonies” are most serious and will deprive the foreign national from many applications and waivers, including but not exclusive to Cancellation of Removal and I-601 extreme hardship waivers. "
Since that article was published over a year ago, I have had many calls related to deferred adjudication where by the reader sought to determine whether a deferred adjudication in his/her case would be deportable. Although we encourage readers to contact our U.S. immigration removal attorneys prior to accepting any plea, I hope that the following will shed some light into the matter.
Deferred Adjudication is process whereby the accused have to plea “guilty” or “no contest” to the charges. The judge would then issue an order (in many cases based on the prosecutors’ requests) that required the accused to paying certain fine, restitution, rehap, and/or community services and community supervision (probation). Once the accused have completed the required list as stated in the order, the accused can motion the court to dismiss the criminal cause of action. It is important to remember that Deferred Adjudication is sufficient to show that a person is CONVICTED of the crime under immigration removal proceeding; and thus, a person who pled guilty to certain crimes may be deportable. As such, one should avoid a plea if it is all possible (See my article regarding “Deferred Adjudication vs. Deferred Prosecution”).
In some narrow circumstances however, a deferred adjudication may not be a deportable conviction because of the nature of the crime. For example, under current U.S. immigration law, an aggravated felony within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. II 1996), includes a conviction of a crime of violence if the sentence is 1 year or more. Therefore, in the 5th circuit, including Texas, if the accused accept a deferred adjudication for a “simple assault,” and the court sentenced the person to 6 months in jail and/or a 1-3 years probation, the person is not deportable because the conviction is not an aggravated felony. That is, probation is not a “sentence,” and thus, does not meet the definition of an aggravated felony.
However, it is important to understand that certain conviction, whether it is an admission of guilt in a deferred adjudication or a conviction at trial, is an aggravated felony and is deportable. Under In Re Pedro RODRIGUEZ-RODRIGUEZ, a 1999 decision of the Board of Immigration Appeals (BIA), an offense of indecency with a child by exposure pursuant to section 21.11(a)(2) of the Texas Penal Code Annotated constitutes sexual abuse of a minor and is therefore an aggravated felony within the meaning of the Immigration and Nationality Act as amended. Other crimes that are aggravated felonies include a theft crime of $10,000 or more, robbery, burglary, murder, rape, espionage crimes, and weapon charges. As such, in these circumstances, a person should seek a pretrial-diversion program, such as deferred prosecution, or to go to trial rather that accepting a deferred adjudication.
Because every case is unique, depending on a number of issues, including but not exclusive to the nature of the crime, the statutes in your state, the jurisdiction where you live and precedent case law, you MUST contact an experienced immigration attorney prior to accepting any offer from the state or the federal government. Only after a thorough consultation and research would an experienced immigration attorney can advise you on your legal matter. This article briefly touches the surface of these important issues and should NOT be construed as legal advice or consultation. Please contact our Houston Immigration Lawyers at 713-517-6645 should you desired to speak to one of our attorneys.
Immigration Law is a vast area of law and every situation is unique. This article is intended for informational purposes only. You should NOT rely on the limited information on this article in replacing a personal consultation with an experienced Houston Immigration Lawyer. There may be legal issues, depending on the facts and circumstances, in which you may not be aware. Please feel free to give us a call or to contact us online, for more information. our Houston Immigration Attorneys and the Spring Houston Naturalization Lawyers at the Law Offices of Steven Tuan Pham. can be reached at 713-517-6645 or complete our Contact Form.