By: Priscila Janjua
Can a Refugee Be Deported After a Criminal Conviction?
Yes, a refugee can be deported (the legal term is “removed”) after a criminal conviction, even though the conviction does not take away refugee status itself. That sounds like a contradiction, but it is exactly how the law works. Refugee status and removability run on two separate tracks. Matter of D-K-, 25 I&N Dec. 761 (BIA 2012).
Many people, including some refugees themselves, believe that “they’re a refugee, so they can’t be touched by immigration.” That belief is half right, and the half that is wrong can cost someone their ability to live in the United States. If you or a family member is a refugee facing criminal charges, our immigration team can help you understand the stakes before it is too late.
What Is a Refugee Under U.S. Law?
A refugee is a person outside their home country who cannot return because of persecution (or a well-founded fear of persecution) based on race, religion, nationality, membership in a particular social group, or political opinion. That definition comes directly from the Immigration and Nationality Act. INA § 101(a)(42), 8 U.S.C. § 1101(a)(42).
In plain terms: a refugee is someone the United States has already agreed to protect because going home would put them in danger. Refugees are screened and approved before they ever set foot in the United States. This usually occurs while living in a refugee camp or a third country, and they are then admitted into the United States under INA § 207, 8 U.S.C. § 1157. This is what separates refugees from asylees, who ask for the same protection after arriving at or inside the U.S. border.
This is not a small population. In fiscal year 2024, the United States admitted 100,034 refugees. This was the highest number in three decades, according to the DHS Office of Homeland Security Statistics. Communities across North Dakota and Minnesota, including Fargo, have resettled refugees for decades.
One more piece of background matters for everything that follows. After one year in the United States, a refugee is required to apply for a green card. Formally, that is called adjustment to lawful permanent resident status. INA § 209(a), 8 U.S.C. § 1159(a). Many refugees never complete that step. A refugee who has not adjusted is sometimes called an “unadjusted refugee,” and that group sits at the center of the legal question in this article.
- Why wouldn’t a refugee adjust to a green card? Usually, it’s because they don’t know it’s required. The one-year adjustment rule under INA §209 is explained during resettlement, but often in the chaos of arrival. Between a new language, a new job, and kids in school, this process is easily lost in translation. Many refugees believe their refugee status is their permanent status, since they were already vetted for years abroad. Nothing forces the issue: there’s no penalty notice, no reminder from USCIS, and their employment authorization and ability to live here continue either way. An unadjusted refugee can work, get a Social Security number, and renew documents. Life functions normally, so the paperwork feels optional. Another reason is cost. Though the $1,440 filing fee to adjust is waived for refugees, they still have to pay for a medical exam with a private doctor who sets their own price, plus any vaccinations. That out-of-pocket cost is the practical barrier. The consequences of not adjusting their status on time only surface years later. Usually when they apply for citizenship (which requires green card “legal permanent residence” status first) or, as in the scenario of this blog, when they end up in criminal or removal proceedings.
Removal vs. Deportation: What’s the Difference?
Here is the short answer: today, they are the same thing. “Removal” is the official legal term, and “deportation” is the everyday word most people still use.
Before April 1, 1997, immigration law had two separate court processes. “Deportation” proceedings applied to people who had already entered the United States. “Exclusion” proceedings applied to people stopped at the border. Congress merged the two systems in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, creating a single process called “removal proceedings.” INA § 240, 8 U.S.C. § 1229a.
Even though there is now one process, there are still two different rulebooks for why someone can be removed:
Inadmissibility grounds (INA § 212, 8 U.S.C. § 1182) apply to people seeking admission to the United States. These are essentially reasons to keep someone out.
Deportability grounds (INA § 237, 8 U.S.C. § 1227) apply to people who were already inside the country and are the reasons to send someone back out after letting them in. Criminal convictions are the most common ground for deportability.
Which rulebook applies to a refugee? Refugees are formally “admitted” to the United States when they arrive under INA § 207.
Can the Government Take Away Refugee Status?
Only in one narrow situation. Under INA § 207(c)(4), 8 U.S.C. § 1157(c)(4), refugee status may be terminated only if the person was not actually a refugee at the time of admission. In practice, that means fraud or ineligibility in the original application. For example, lying about identity, nationality, or the persecution claim.
The statute directs that refugee status be terminated only for “any alien . . . who was not in fact a refugee within the meaning of section 1101(a)(42) of this title at the time of the alien’s admission.” 8 U.S.C. § 1157(c)(4).
Notice what is missing from that list: crimes. A conviction, even a serious felony, committed after admission cannot terminate refugee status, because it says nothing about whether the person was a genuine refugee on the day they arrived. This is where the popular intuition “he’s a refugee, they can’t touch him” comes from. And it is half right: the refugee status itself survives the conviction.
The problem is the other half.
What Really Happens When a Refugee Commits a Crime
In Matter of D-K-, 25 I&N Dec. 761 (BIA 2012), the Board of Immigration Appeals (“BIA”) (the highest administrative court in the immigration system) answered the question directly. The Board held that the Department of Homeland Security may place a refugee who has not adjusted to permanent resident status directly into removal proceedings on deportability charges under INA § 237, without first terminating refugee status. In plain terms, if the refugee has not applied for and been approved for their green card, they can be placed directly into removal proceedings despite keeping their status as a refugee.
The logic tracks the statute. A refugee’s arrival under INA § 207 counts as an “admission.” The deportability grounds in § 237 apply to any noncitizen who was admitted. So a refugee convicted of a qualifying crime fits squarely within § 237 whether they are in refugee status or not. Termination of that status under § 207(c)(4) is a separate tool for a separate problem (fraud at admission), not a prerequisite for removal.
The result is two parallel tracks. On one track, refugee status remains in effect because, absent something like fraud to obtain the status, the government can never revoke it. On the other track, an immigration judge decides whether a deportability ground is proven and whether any relief or protection applies. If a ground is proven and no relief is granted, the person is ordered “removed” while still, technically, a refugee. The status is intact; the person is gone. Status and removability simply never touch.
Which crimes trigger removal?
The criminal deportability grounds in INA § 237(a)(2), 8 U.S.C. § 1227(a)(2), cover more conduct than most people expect. The major categories are: a crime involving moral turpitude committed within five years of admission and punishable by at least one year; two crimes involving moral turpitude at any time; any “aggravated felony”; nearly all controlled substance offenses; firearm offenses; and crimes of domestic violence, stalking, child abuse, and violations of protection orders.
The “aggravated felony” category, defined in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), is the most dangerous and the most misleading. It is a term of art in immigration law, as an offense does not need to be “aggravated” or even a felony under state law to qualify. A theft or crime of violence with a one-year sentence (even fully suspended) can be an aggravated felony. So can a fraud conviction where the loss exceeds $10,000. Some state misdemeanors qualify. An aggravated felony conviction strips away almost every form of relief discussed below.
Defenses and Relief: What Can Still Be Done
Being placed in removal proceedings is not the same as being removed. A refugee facing criminal charges or removal proceedings may still have strong options, but they shrink quickly as convictions become more serious.
Adjustment of status with a humanitarian waiver
A refugee in removal proceedings can often apply (or re-apply) for a green card under INA § 209 and ask the government to waive many criminal grounds under § 209(c) “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” 8 U.S.C. § 1159(c). This waiver is one of the most generous in immigration law, but it is discretionary, and for violent or dangerous crimes, it is available only in extraordinary circumstances. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).
Withholding of removal and protection under the Convention Against Torture
Even when removal cannot be avoided entirely, the law may forbid removal to the specific country where the person faces persecution or torture. Withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), is barred for anyone convicted of a “particularly serious crime,” which automatically includes an aggravated felony with an aggregate five-year sentence. Protection under the Convention Against Torture remains available regardless of criminal history, but it only blocks removal to the country of feared torture. It is not a path to a green card. This means they could be deported to some third country, but they are not staying in the United States.
The criminal case is the immigration case
For a refugee, the most important immigration decisions often happen in criminal court, not immigration court. The difference between a 364-day sentence and a 365-day sentence, or between one charge and another, can be the difference between keeping a future in the United States and losing it. Defense counsel has a constitutional duty to advise noncitizen clients about the immigration consequences of a plea. Padilla v. Kentucky, 559 U.S. 356 (2010). If you are a refugee facing charges, make sure your defense lawyer and an immigration lawyer are talking to each other before any plea. Contact SW&L Attorneys early in the process.
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