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Immigration and Crimes
This article will give you a brief overview of the consequences of a criminal conviction or activity on a person's immigration status and what can be done to prevent a crime from making someone deportable from or inadmissible to the United States.
People who are subject to criminal grounds of removal and inadmissibiity are:
1. Lawful Permanent Residents ("LPR"),
2. Nonimmigrant visa holders (H-1B, F-1, J, L, etc.),
3. People whose adjustment of status applications are pending,
4. Asylumees and refugees,
5. People outside the United States awaiting their immigrant visa numbers to become available,
6. People who are paroled into the United States.
Consequences of removal for criminal convictions apply to LPRs living legally in this country for many years. This includes even people with businesses, family members and other strong ties to the United States. Therefore, it is very important for all non-citizens to be aware of what is at stake for them if they are convicted of criminal activity.
The Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA") of 1996 significantly broadened the number of crimes that make a person deportable and/or inadmissible to the United States. The definition of an Aggravated Felony ("AF"), the most serious type of crime for immigration purposes, is very complicated and is beyond the scope of this article. However, I will try to simplify so a lay person can have some understanding of what an AF is.
An AF is a serious crime for any non-citizen living in the United States because there is no discretionary relief available in removal proceedings for a person convicted of such a crime. IIRIRA greatly expanded the definition of an AF to include relatively minor crimes such as theft or falsifying a document where a sentence of 1 year is imposed. IIRIRA also eliminated many types of discretionary relief available to LPRs in removal proceedings, such as the INA212(C) waiver that was available to LPRs convicted of AFs prior to April, 1996.
Even though the United States Supreme Court in INS v. St. Cyr 121 S.Ct. 2271 (2001) held that LPRs who pled guilty to AFs prior to April 24, 1996 were entitled to 212(C) relief in removal proceedings: it is imperative for a non-citizen, in criminal proceedings to avoid an AF conviction at all cost. If convicted of an AF, an LPR's only hope lies in post-conviction relief in criminal court based on constitutional or statutory grounds. To vacate a conviction under these circumstances is a daunting task even for a skilled criminal defense attorney.
The Immigration Nationality Act ("INA") 101a(43) defines what crimes are classified as AF for immigration purposes. Some crimes such as murder, rape and sexual abuse of a minor are AFs regardless of any sentence imposed; while other crimes such as theft, perjury, obstruction of justice, forgery, document fraud, domestic violence, etc., become AFs only if a sentence of 1 year or more is imposed. Many crimes can be prevented from becoming an AF if criminal defense attorneys draft careful plea agreements that avoid a sentence of 1 year or more. One important thing to remember is that a one-year sentence, regardless of whether it is suspended is still a one-year sentence for immigration purposes and can make a crime an AF. Extreme care and skillful lawyering is required to make sure that a crime does not fall into an AF category.
Besides an AF, there are numerous crimes that can make a person removable from and/or inadmissible to the United States. These crimes are called "crimes involving moral turpitude" ("CMT"). There is no definition of CMT in INA but these crimes are crimes that a person is a bad person who steals, lies, deceives, etc. The crimes listed in preceding paragraphs are generally considered CMT and have immigration consequences.
The general rule is that one CMT committed within five years of admission for which there is a "potential" sentence of one year is a ground of removability from the United States. Note that it is not the actual sentence but rather the potential sentence that controls here.
Moreover, two crimes of moral turpitude, regardless of the sentence, committed anytime after the admission into the United States, are also grounds of removability. However, LPRs convicted of CMT are generally entitled to discretionary relief in removal proceedings from an immigration judge. Relief such as "212(h) Waiver" and "Cancellation of Removal" is available to LPRs if they have maintained an unrelinquished domicile in the United States for at least seven years and have not committed an AF. Similarly, people seeking admission into the United States or adjusting their status while within the United States are also entitled to seek criminal inadmissibility waivers under INA 212(h) or Cancellation of Removal for Non-LPRs. People seeking admission the United States or adjusting their status may also have access to a "Petty Offense Exception", discussion of which is beyond the scope of this article.
Criminal immigration practice is extremely complicated and requires a through knowledge of both criminal (state and federal) and immigration laws. Immigration attorneys specializing in criminal immigration should try to prevent a crime from becoming an AF for a non-US citizen client through careful plea agreements, researching statutes and case law for alternative safe pleas etc. Sometimes it may not be possible for a crime to not be classified as CMT but as long as an AF conviction is avoided, a non-citizen could still seek discretionary relief in an immigrant court.
I will conclude by saying that the consequences of criminal conduct are extremely severe for any non-citizen. Great care must be taken to minimize the immigration consequences for a non-citizen in criminal proceedings as well as in immigration court during removal proceedings. One should consult an Attorney for a more thorough and detailed analysis of any particular case.
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