Sex crimes are serious crimes. Depending on the alleged act involved, the age of the alleged victim, the age of the defendant or even the role of the defendant in the victim’s life, a person may be facing a misdemeanor conviction with probation, or a felony conviction with lifetime sex offender registry. In the most serious cases, a defendant will face life in prison, regardless of registry requirements.
A person who is not a U.S. citizen and is jailed for a sex crime will almost always have an ICE detainer on his or her case. Even if a person faces no jail time, if he or she is not a U.S. citizen, it is more than likely a Notice of Appear (NTA) in immigration court will be issued. Most sex crimes are considered aggravated felonies: this will mean permanent removal from the United States, and a permanent ban from ever returning.
No matter what stage of the criminal process you are in, there are certain circumstances that may help your personal situation, especially if you are not a U.S. citizen. There are things to consider; they are not ways to prevent a conviction or deportation. In most circumstances, preparation is the best thing a non-citizen can do.
If you have not been charged yet with a sexual offense crime
If you are eligible – get a green card or naturalize as soon as possible. The government does not need a criminal conviction to prevent you from obtaining a green card. The government only needs facts or admissions sufficient to determine if a crime was convicted. If you wait too long and charges are filed, you may not be able to obtain a green card. Even if charges are dropped before a green card interview, a USCIS officer will question you extensively about the charges. During this questioning, you might accidentally admit to an inadmissible sex crime. An inadmissible sex crime will permanently bar you from getting lawful status, and you will be deportable from the U.S.
If you already have a green card and are eligible for naturalization, file immediately. A criminal investigation will not per se bar you from getting citizenship. You must be honest when answering the naturalization questions. If you genuinely believe you have not committed a crime, then indicate this on the form. However, if there is a criminal investigation and police have detained, interviewed, fingerprinted or otherwise actively named you as a suspect in a criminal sexual investigation, USCIS will likely be notified and your naturalization put on hold until the investigation wraps up.
If you have been charged with a sexual offense crime
If you are not a U.S. citizen and you have been charged with a serious sex crime, it is important to follow the advice of your criminal defense attorney. Sometimes, if evidence is overwhelming or likely passes the threshold of reasonable doubt, it is more important to plead to an offense that will not result in your permanent removal from the United States.
For example, let’s say you have a green card and you are charged with sexual assault. Rather than risk going to trial and being found guilty of clearly-deportable conduct, it may be better to plead to a subsection of the statute that incorporates the least possible conduct and lowest amount of jail time.
If you are undocumented and charged with a serious sex crime, your options may be few to none. In most states, including Pennsylvania, almost all sexual offense crimes are aggravated felonies, crimes of moral turpitude and/or crimes of domestic violence (if a spouse, partner or co-parent is involved). You may want to take your case to trial, but almost any verdict could result in permanent inadmissibility. In this case, it will be important to consider other non-green card forms of relief from removal. However, if you can plead to a sexual offense that allows for a waiver – in order to apply for a visa or green card – this may be your best option to remain in the United States and obtain lawful status.
If you have been convicted of or pleaded to a sexual offense crime
Almost a decade ago, the Supreme Court ruled that criminal defense attorneys must advise their clients of the immigration consequences of defendants’ cases. Unfortunately, even to this day many attorneys forget, or simply do not know, a defendant’s immigration status. It may be possible to reopen a criminal case that involves serious sexual conduct. This is often times referred to as Post-Conviction Relief. Reopening and re-negotiating criminal cases is the best possible solution in most cases.
If you have been detained, charged and convicted of a serious sexual offense, but you fear returning to your home country based on torture or persecution, you may be eligible for a very limited form of relief under the Convention Against Torture. If an immigration judge grants your request, your removal will be ‘withheld’ or stopped for the foreseeable future. This does not result in a green card, but you may be eligible for work authorization.
Adam Walsh Act (AWA) Limitations
Since 2006, any U.S. citizen or legal permanent resident who has been convicted of a certain ‘crime against a minor’ will be barred from petitioning and sponsoring family members, including spouses, who want to immigrate to the United States. These crimes include sexual offenses, kidnapping, solicitation, voyeurism, among others. A person does not need to be convicted of a particularly violent or dangerous crime to be considered an AWA violator. An AWA determination is left to the sole discretion of the USCIS or DHS officer who has the case.
AWA determination is not appealable. However, an AWA petitioner may seek to obtain a waiver (or a ‘no risk’ determination) to show he is not a current or future danger to his or her non-citizen spouse. A waiver request is long, costly and time-consuming, usually taking months and years to receive an answer.
Talk to an attorney NOW!
Too many factors are involved in evaluating sex crimes and immigration clients. Every state has different laws, and every person has different status; thus, while one person may be able to remain in the United States, another person may be permanently removed. If you are not a U.S. citizen and you face criminal sex offense charges, you must speak to an immigration attorney as soon as possible. Do not rely on the internet for answers!