A minor criminal offense for U.S. citizens can mean a felony and deportation for aliens, both legal and illegal, according to immigration lawyer James Kelly.
"What's a misdemeanor to a criminal court can be an aggravated felony to immigration court and grounds for removal from the U.S.," Kelly told 14 attorneys, paralegals and court interpreters who attended Douglas County Bar Association's monthly meeting on Thursday at the Carson Valley Museum & Cultural Center.
Kelly, of Reno, was the guest speaker.
"It's not the serious crimes but the little nuanced crimes that are causing problems with immigration," said Kelly.
The majority of aliens he's seen with criminal cases were lawful, permanent residents with green cards. He said criminal defense lawyers need to identify their clients' immigration status as soon as possible, and differentiate between illegal immigrants, those with student visas and those with green cards.
Penalties, including deportation, will depend on how long someone has been in the U.S. and the nature of the offense, though there are exceptions, Kelly said.
"Any kind of crime involving drugs, the person is going to be removed from the U.S.," he said.
Kelly discussed one case where a legal alien applied for citizenship only to find that a minor drug charge he'd received more than 20 years prior qualified him for deportation.
"What's a conviction to an immigration court is different than a conviction for a criminal court," said Kelly.
He said a conviction is normally determined by the court or a jury, but that immigration law allows convictions on the admission of essential elements of the crime.
One of his clients in Humboldt County had admitted possession of a controlled substance to an immigration officer and found himself convicted of the offense in immigration court without a defense counsel. He said the man was deported, but brought back because the case was appealed and overturned by a higher court, which found the conviction unconstitutional.
Defense Attorney Jennifer Yturbide asked Kelly if juvenile offenses, records of which are sealed after a certain time frame, could be used against a defendant later in immigration court.
"Immigration law supersedes state law," answered Kelly.
He said if it's a criminal offense under federal law, it can be used against the defendant, despite protective state laws.
"Banishment is the worst punishment possible," he said. "People would rather go to jail than leave the country."