Criminal defense lawyers are expected to be able to accurately advise their clients on many possible collateral consequences of a criminal conviction. It is important to know things like driver's license consequences, professional licensure, insurance premiums, parole consequences, and many more. One of the most important issues is whether a conviction will effect the ability of a person to remain in the United States. These can be be people who are in the country legally and those without documentation.
The issue is whether the noncitizen has been convicted of a crime or crimes involving moral turpitude. Moral turpitude “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general.”
Those offenses can include offenses including an intent to defraud or steal, bodily harm as an intentional or reckless act, and various sex-related offenses. In the past, in some contexts, DUI has been treated as an offense which could involve serious bodily harm as an intentional or reckless act. At other times, it has been rejected as such unless in the particular case there was such an injury.
From 2008 through April 2015, immigration judges were empowered to consider not only the crime of conviction but facts or allegations outside the criminal conviction. For instance, a defendant might be charged with a more serious charge, but the State and the Defendant might negotiate for resolution to an offense that would not, on its face, trigger deportation. However, those efforts might be for naught because the immigration judge could look at the original charge and base his or her decision on deportation on the facts of the original charge.
In short, there has been a great deal of uncertainty. Even if a case was resolved to an offense which was not a crime involving moral turpitude, immigration judges could second guess that resolution and look to other facts about the case.
The New Directions
On April 10, 2015, Attorney General Holder signed an order vacating the prior order and setting a new standard. This order essential limits the evidence to be considered by the immigration judges to the record of conviction. This restores the analysis that had been in place for almost 100 years
This is referred to as the categorical approach. Under the categorical approach, the judge examines the essential elements of the offense of conviction to determine whether the offense qualifies as a crime involving moral turpitude. That means that all offenses of the same type will be treated the same regardless of the facts in the individual case.
Although it will not bring about absolute certainty, it will certainly enhance the ability of competent counsel to give good advice to their clients.
The information in this post is drawn from a Practice Advisory of the Immigration Defense Project and the National Immigration Project.