Will my spouse be deported?

May 20, 2009 4:38 AM

YouAreNotMyImmigrationLawyer-filter: How likely is it that my spouse will be deported for this crime?

My spouse, who is a permanent resident for over 10 years, was arrested approximately 1 month ago on a class B shoplifting charge in Texas and, as of yet, does not have a court date. When we went to meet with a lawyer, he told us that he could not take the case and that my spouse needs much better representation than he could provide because of the "very real possibility [my spouse] will be deported after finishing a sentence or probation."

There is one criminal background item: $partner completed deferred adjudication in 2004 for a credit card fraud charge from 1998. (I assume the details of whether or not I believe the charges to be valid is of no merit, but I don't think they were) Paperwork was received from the court stating that "the charges are ORDERED to be and are set aside" as a result of this completion. A FBI fingerprint check for a passport renewal (from $partner's home country) revealed an arrest but no conviction, so I assume the charges were actually dropped.

We are seeking the advice of the attorney recommended by the lawyer who said he could not take the case, as well as from others, but I would appreciate as much information as possible. Is it possible my spouse will/could be deported and what should we ask any potential attorney about ways to prevent this?

Throwaway e-mail: [e-mail]

posted by anonymous to law & government (8 comments total)

Yes, there is a very real possibility of deportation, even though your spouse has lived a long time in the US and was arrested for a relatively minor crime. As an example, read up on Deportation of Cambodian Americans. Get a good lawyer, right away!
posted by Etaoin Shrdlu at 5:39 AM on May 20

Is it possible my spouse will/could be deported?
IANAL, but used to be the assistant of an immigration lawyer. I don't know much about criminal situations, so take my advice with a grain of salt. Your spouse can be deported if the crime carries a potential jail sentence of one year or longer; class B misdemeanors only carry a sentence of a maximum of six months. He probably won't be deported for a single misdemeanor, but he could be for repeated offenses.

You should know that your spouse's 2004 deferred adjudication is considered a conviction when it comes to immigration purposes.
posted by halogen at 5:55 AM on May 20

Is it possible your spouse will/could be deported?

Yes.
posted by Pollomacho at 6:06 AM on May 20

I've done some work with criminal defense lawyers, which required talking to non-citizen defendants about their immigration issues. My understanding was that halogen is right, right now the law makes non-citizens eligible for deportation, if the crime carries a penalty of more than one year in jail. The problem is that this is an administrative rule that can be changed at anytime, and applied retroactively. My advice would be to get to an immigration lawyer as soon as possible.
posted by Bulgaroktonos at 6:32 AM on May 20

Without the documents and an immigration law specialization, it's not a good idea to give substantive legal advice. Immigration regulations change frequently and enforcement priorities shift all the time.

What I have noticed is that people are often poorly advised about the immigration consequences of criminal adjudications -- from not understanding deferred adjudication (yes, treated as a criminal conviction) to pleading guilty even if there's no basis to the charges because their lawyer told them they'll go home today if they plead. It sounds like there was something more going on there than an ordinary deferred adjudication. If I were advising you, I'd tell you to get a good immigration attorney as well as a good criminal defense attorney for the new charges. Be suspicious of someone who claims to have the ability to handle both aspects.
posted by *s at 7:33 AM on May 20

It looks like the Obama administration is getting aggressive about deportation of convicted criminals.
posted by Chocolate Pickle at 9:27 AM on May 20

Any fraud or theft offense is immediately deportable...
posted by Kirklander at 11:18 AM on May 20

Original Poster,
First my heartfelt empathy to you both. Our family went through a very nasty brush in this area and I know what it's like. I spent hours combing through immigration threads to find information on any cases similar to ours and it was horribly depressing to see how fragile your status can seem or read the stories of poorly advised people falling foul of Immigration & Customs Enforcement.

We lucked into something possibly worth pursuing - an extremely experienced immigration internet lawyer ( from justanswer.com) who gave us some advice (for $30) which we then hotly pursued with our own expensive immigration lawyer (because we'd had a dangerously ambiguous answer from him on one issue!) - and the internet lawyer, it turned out, was spot on.

Our problem - in outline - was the minefield area of potentially getting refused re-admission to the USA as a legal resident - even when they were no grounds to deport.

Anyway, email's in my profile.
posted by Jody Tresidder at 11:56 AM on May 20