Criminal Convictions & Removal of Permanent Residents
Permanent residents or those with “green cards” are authorized to live and work in the United States. This is a permanent status but it may also be conditional with restrictions. Even those with permanent status with no conditions can find themselves in a situation where the government is seeking removal.
The government often seeks the removal of those convicted of certain crimes. This raises difficult questions as immigration removal laws are Federal laws, yet most criminal convictions are for crimes set out in state laws. Not all state law crimes can trigger removal.
The recent Diaz-Rodriguez v. Garland, No. 13-73719 (9th Cir. 2022), case provides an opportunity to consider these rules.
The Diaz-Rodriguez Case
This case involved a native and citizen of Mexico who entered the United. States in 1990 as a legal permanent resident.
While residing in the U.S., Mr. Diaz-Rodriguez was arrested several times for driving while intoxicated (DWI). This case stemmed from a traffic stop involving a DWI charge in which Mr. Diaz-Rodriguez’s five-year-old son was in the vehicle. Six years later he was charged with the same offense while driving with his minor daughter. He was convicted both times–both for DWI and under section 273a(a) of the California Penal Code for willfully permitting a child under his care or custody to be “placed in a situation where his or her person or health is endangered” “under circumstances or conditions likely to produce great bodily harm or death.”
The government started removal proceedings, alleging that Diaz-Rodriguez had been convicted of the offense of child abuse in violation of section 273a(a) and was therefore removable as an alien convicted of a “crime of child abuse, child neglect, or child abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i). In December 2012, Diaz-Rodriguez appeared before an immigration judge (IJ) with counsel and denied the charge of removability. He also filed an application for cancellation of removal.
State Criminal Crime & Comparable Federal Crime
Our immigration laws define when a criminal offense makes a permanent resident removable. This is set out in 8 U.S.C. § 1227(a)(2)(E)(i). This statute sets out Federal crimes. When state crimes are involved, one has to compare them to Federal crimes by looking at the elements of each. If they are similar to Federal crimes, then removal is permitted under the statute.
The court had to determine whether the offense under section 273a(a) of the California Penal Code was equivalent to a Federal crime. The comparable Federal statute is “child abuse, child neglect, or child abandonment” under § 1227(a)(2)(E)(i). The court concluded that the two are comparable.
The Takeaway
Permanent residents charged with crimes under state law can be removed if convicted of the state crime. For this to trigger removal, the state crime has to be comparable to a Federal crime as in this case. Crimes that have no comparable Federal criminal statute do not trigger removal. One has to analyze the statutes to determine whether they are comparable. This can be a difficult legal analysis–one that an experienced immigration lawyer should be hired to assist with. If you have been charged with a crime, we can help you determine whether the crime may result in removal.
