Important Notice and Warning
The following applies to any individual who is not a citizen, regardless of their
immigration status, including permanent residents:
1. If you have ever been arrested, charged, convicted, or found guilty of certain criminal offenses, even if you were placed on probation, you could be subject to a second arrest and possible detention by immigration authorities, and placed into removal/deportation proceedings because of the prior criminal offense(s).
2. The criminal offenses that can expose an individual to arrest, detention and removal/deportation are too numerous to set out forth in this article. In almost all cases, before a determination can be made regarding the effect of a criminal offense on an individual’s immigration status, it is necessary to have specific information about the offense, i.e., date of the offense, the statute (law) underlying the offense, the plea and the resulting action of the court (disposition). The foregoing information must then be examined and analyzed in order to determine if the offense or conviction is one that could subject an individual to arrest and/or detention and placement into deportation/removal proceedings.
3. Normally, it does not matter that the original offense may have occurred many years in the past, or that the sentence of the court was served or completed or that there was a total compliance with all the conditions of probation. What is important is the type of offense, and when and whether or not, any action (disposition) was taken by a court. In some cases, even a misdemeanor offense is sufficient to place an individual in jeopardy for an arrest and placement into proceedings. In addition, simply because a court did not formally convict (court withheld adjudication and placed a defendant on probation or into a program after a plea under state law), does not mean that the individual has not been convicted for purposes of immigration law.
4. Simply because an individual has a certain type of relationship, or even a status, such as, for example: marriage to a U.S. citizen/spouse, U.S. citizen children, or legal permanent residency, are not sufficient to avoid placement into deportation/removal proceedings; the foregoing can however, be of vital importance, because they are or can be, an integral and crucial requirement of a waiver (“defense”) to deportation/removal.
5. What action on the individual’s part will trigger this problem with Immigration and Customs Enforcement (the law enforcement arm of the Department of Homeland Security)? The following situations are almost certain to subject an
individual who has a prior criminal arrest, formal or informal conviction, as explained above, to possible arrest and placement into removal/deportation proceedings by Immigration Customs and Enforcement officials:
A. Departing and /or attempting to re-enter the United States (even if you are a returning lawful permanent resident);
B. Filing any type of application, petition, process, etc., with U.S.C.I.S. (formerly I.N.S.), including applications for citizenship, permanent residency, renewal of permanent resident card, and most other processes.
C. An arrest on any type of offense, when you have a prior criminal record for certain types of offenses. This is true regardless of which law enforcement authority is conducting the arrest, as all law enforcement authorities in the U.S. are under a general mandate by I.C.E., to determine the immigration status of an individual upon an arrest, and if the individual is an alien, I.C.E. may then cause a detainer notice (hold) to be placed with the local authorities, requiring that the individual be detained in their custody until custody can be transferred to I.C.E.
D. An important consideration in those situations involving an arrest, is that generally speaking, once I.C.E. issues a detainer for local, state, or federal authorities to detain an individual, the individual is unable to bond out, even if a bond is posted.
E. Additionally, if I.C.E. does take an individual into custody, there are certain situations in which no bond or bail would be available to an individual that has a record for certain types of criminal offenses, and that individual may be detained (held) until the conclusion of the deportation/removal proceedings, and in certain cases, a longer period. The rule then, is that if an individual is not a citizen and has any previous criminal
record, he or she should not take any action whatsoever, until he has conferred with an attorney that practices immigration law.