Tag Archives: crime involving moral turpitude

Lifting of INA 212(a)(2)(A)(i)(I)(Crime-Related/CIMT) Bar + J-1 Visa Approval = A True Success Story

Within 16 days of my client’s visa interview, the U.S. Embassy granted him a J-1 exchange visitor visa after it had denied his prior application under INA 212(a)(2)(A)(i)(I)(crime-related bar). In the previous visa refusal, the Embassy found him to be permanently inadmissible because he was charged with two offenses, forgery and larceny, which are normally considered Crimes Involving Moral Turpitude (CIMT).

Based on the Motion to Reconsider and Rescind Inadmissibility Determination that I prepared for the client, the Embassy lifted the lifetime bar and issued the visa without requiring a 212(d)(3) waiver of inadmissibility.

Under INA 212(a)(2)(A)(i)(I), any non-U.S. citizen convicted of, or who admits committing acts that constitute the elements of a crime involving moral turpitude (other than a purely political offense), is inadmissible.  For the CIMT bar to apply, an actual conviction is not required when the person explicitly admits to committing all elements of the offense, under oath, including to a U.S. consular officer or customs officer during an interview.

A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent. Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

The petty offense exception applies only if the person committed just one CIMT ever, the CIMT has a potential sentence of one year or less, and a sentence of six months or less was imposed (if the person was convicted of the offense).

The client contacted me to evaluate his problem and recommend a solution after he had been denied the J-1 visa due to crime-related grounds. During the consultation, I learned that while he had been arrested and charged with two offenses (forgery and larceny) for one single incident, he was not convicted of either.

The police report, however, contained the client’s written Voluntary Statement admitting he had made a photocopy of his metro-train pass and presented the fake ticket to the train conductor to save money when he was low on cash. Meanwhile, he gave his real train pass to his travel companion to use.

In the legal memorandum supporting the Motion to Reconsider and Rescind Inadmissibility Finding, I emphasized that my client was never convicted of forgery or larceny. The charges were dismissed after he was placed in an alternative rehabilitation program, which did not require him to enter a guilty plea. I also argued that his Voluntary Statement in the police report did not amount to a legally valid admission to committing a CIMT. Thus, the Embassy’s crime-related inadmissibility finding was made in error.

Although my client qualified for the 212(d)(3) nonimmigrant waiver of inadmissibility, the U.S. Customs & Border Protection, Admissibility Review Office normally takes several months to process these requests – even after the Embassy makes a favorable recommendation. The waiver is also valid for a limited period (currently, up to 60 months).

Furthermore, the crime-related bar would remain if left unchallenged. If he were to seek permanent residence in the future, he would require a Form I-601/INA 212(i) immigrant waiver as long as the crime-related bar existed. This immigrant waiver of inadmissibility has much stricter eligibility criteria and higher evidentiary standards.

My client agreed that the Motion to Reconsider and Rescind Inadmissibility Determination was the primary solution and the 212(d)(3) waiver was the alternative remedy. Within one month of accepting his request for representation, I prepared the Motion with a legal memorandum and documentary evidence demonstrating the CIMT bar did not apply or,  at the very least, the 212(d)(3) waiver should be granted.

When my client appeared for his visa interview, the consular officer refused to accept the legal memorandum and accompanying exhibits. Instead, she took only two documents showing the charges had been dismissed. The problem was the Embassy had the same or similar information when it denied the prior J-1 visa application. My client was worried the Embassy would deny the new visa request because it had received no new information since the last denial.

To fully explain the situation, I forwarded the legal memorandum and exhibits to the Embassy in a follow-up email correspondence. I pointed out that my client has no criminal convictions, did not enter any guilty plea, and did not make any legally valid admissions to committing a  CIMT. I also noted that even if his Voluntary Statement to the police counted as a formal admission (which was not the case), the most he admitted to was forgery (not larceny) and he would thus, at a minimum, qualify for the petty offense exception to the CIMT bar. 

Eleven (11) days after I submitted the follow-up correspondence, including the legal memorandum and exhibits, to the Embassy, the J-1 visa was issued to my client. This allowed him to return to the U.S. and timely begin his J-1 exchange visitor program.

While my client was stuck overseas, waiting for his J-1 visa problem to be fixed, he and his wife communicated with me through emails and video calls.  Despite being in separate countries, we formed a strong attorney-client relationship and effective partnership that resulted in a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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What should you do to get an I-601 waiver for criminal grounds?

Section 212(a)(2) of the Immigration & Nationality Act (INA) permanently bars you from adjusting to permanent residence or being lawfully admitted to the U.S. (either as an immigrant or nonimmigrant) on criminal and related grounds. When you have a lifetime ban due to a Crime Involving Moral Turpitude (CIMT) or controlled substance violation, for example, you need an I-601 waiver, available under INA § 212(h).

What Must You  Submit When Requesting an I-601 [INA § 212(h)] Waiver?

A section 212(h) waiver applicant must submit a completed and signed Form I-601Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.

The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing hardships and/or rehabilitation; expert opinions; medical documentation; and reports of conditions in your home country.

Evidence of extreme hardship 

If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, son or daughter, or K visa petitioner, will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”

The agency considers a variety of factors when determining whether there is extreme hardship. They include:

  • Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
  • Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).
  • Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
  • Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

Evidence of rehabilitation| Evidence that your admission would not be against the national welfare, safety, or security of the United States

Evidence of your rehabilitation and evidence that your admission would not harm the national welfare, safety, or security of the U.S. are especially important when you are filing for the waiver on these grounds. Such evidence is also essential to showing the positive factors outweigh the negative factors in your case.

The agency considers several factors when determining whether there is rehabilitation. They include:

  • Passage of time since the last conviction
  • The court order regarding sentence imposed and whether the applicant is likely to commit another offense
  • The applicant’s participation in a rehabilitation program, such as alcohol or drug treatment program, if alcohol or drug use contributed to the crime
  • The applicant’s active involvement in community activities and volunteer work
  • A grant of expungement or pardon
  • A psychological evaluation confirming the crime resulted from a mental problem for which the applicant is being treated

Does Having an Immigration Attorney Make a Difference? 

Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.

Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation.  A good lawyer will help you prove your qualifying relatives would suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you.

The presence of aggravating factors (e.g. conviction for a serious offense, recent convictions) and lack of mitigating factors (e.g. participation in a rehabilitation program) can lead to a denial of your waiver request. Needing another waiver, such as a section 212(i) waiver (for immigration fraud/willful misrepresentation) or a section 212(a)(9)(B)(v) waiver (for unlawful presence), further complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.

It’s much harder to get an I-601 waiver [INA § 212(h) waiver] when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.

A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.

For more information on when the crime-related bar applies, who qualifies for the I-601 [INA § 212(h)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 Waiver due to criminal grounds (and how do you get it)?

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Tiago Pinheiro

When do you need an I-601 Waiver due to criminal grounds (and how do you get it)?

Certain criminal offenses bar you from adjusting to permanent resident status or from entering the U.S. as a permanent resident or an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa holder.

To overcome crime-related bars to reentry, prospective immigrants or permanent residents seeking admission to the U.S. must file for and receive an I-601 waiver when available under section 212(h) of the Immigration & Nationality Act. If the I-601 waiver is granted, you may then adjust status, enter the U.S. on an immigrant, K-3 or K-1 visa, or be admitted as a permanent resident.

 

When Are You Inadmissible Due to Criminal and Related Grounds [INA§ 212(a)(2)]? 

Crime-related grounds of inadmissibility are permanent bars to adjusting to permanent residence within the U.S., obtaining a visa for entry to the U.S., or being lawfully admitted to the U.S.

Crime Involving Moral Turpitude

Section 212(a)(2)(A) (i)(I) of the Immigration & Nationality Act (INA) states foreign nationals are inadmissible to the U.S. if they have been convicted of – or admit to committing – (at least) one Crime Involving Moral Turpitude (CIMT), other than a purely political offense.

Even when there is no conviction, there is a valid admission of a crime when the USCIS officer or U.S. consular officer follows formal procedures to obtain it, including placing the applicant under oath and having him admit to all the key elements of the crime.

A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent. Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

You are not inadmissible due to a CIMT when you qualify for:

1. the petty offense exception, where you committed only one CIMT ever, the CIMT has a potential sentence of one year or less, and a sentence of six months or less was imposed ; OR

2. the youthful offender exception, where you committed only one CIMT while under age 18, and at least five years have passed since your conviction and release from jail.

Controlled Substance Violation

Section 212(a)(2)(A) (i)(II) of the INA states that foreign nationals are inadmissible if they violated (or conspired or attempted to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, as defined in section 802 of Title 21. To be subject to this permanent bar, the person must be convicted of or admit to the essential elements of a controlled substance violation.

On a medical examination report, in connection with a green card or immigrant visa application, a person may acknowledge to a civil surgeon or a panel physician that he or she has used a controlled substance, which the physician then may annotate on the medical documentation. While this acknowledgement, by itself, is not a valid admission to a controlled substance violation, it opens a line of questioning to determine criminal inadmissibility.

Arrests and charges for controlled substance violations – even when there is no conviction or guilty plea –  also usually results in further questioning at the green card or immigrant visa interview.

As with obtaining a valid admission to a CIMT, a USCIS officer or U.S. consular officer may place the applicant under oath and use certain procedures to procure a formal admission to a controlled substance violation.

Multiple Criminal Convictions

Section 212(a)(2)(B) of the INA states that foreign nationals are inadmissible to if they are convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offense arose from a single scheme of misconduct, and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more.

Controlled Substance Traffickers

Section 212(a)(2)(C) of the INA bars foreign nationals who the U.S. consular officer or U.S government knows or has reason to believe is a controlled substance trafficker. This includes a person who:

1. is or has been an illicit trafficker in any controlled substance listed in section 802 of Title 21, or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled substance.

or

2. is the spouse, son, or daughter of a person inadmissible as an illicit trafficker, has obtained financial or other benefit from the illicit activity within the last 5 years, and knew or reasonably should have known that the financial or or other benefit resulted from such illicit activity.

Prostitution and Commercialized Vice

Section 212(a)(2)(D)(i) of the INA states that foreign nationals are inadmissible if they are coming to the U.S. solely, principally, or incidentally to engage in prostitution, or have engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status.

Section 212(a)(2)(D)(ii) of the INA adds that foreign nationals are inadmissible if they directly or indirectly procure or attempt to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receive or (within such 10-year period) received the proceeds of prostitution.

Section 212(a)(2)(D)(iii) of the INA further bars foreign nationals who are coming to the U.S. to engage in any other unlawful commercialized vice, whether or not related to prostitution.

Certain Aliens Involved in Serious Criminal Activity Who Have Asserted Immunity from Prosecution

Under section 212(a)(2)(E) of the INA, a foreign national:

(i) who has committed in the United States at any time a serious criminal offense (as defined in section 101(h) of the INA – i.e. any felony, any crime of violence, and any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or prohibited substances if such crime involves personal injury to another),

(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,

(iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and

(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense,

is inadmissible.

Foreign Government Officials Who Committed Particularly Severe Violations of Religious Freedom

Under section 212(a)(2)(G) of the INA, a person who, while serving as a foreign government official, was responsible for or carried out particularly severe violations of religious freedom is inadmissible.

Significant Traffickers in Persons

Under section 212(a)(2)(H) of the INA, a person who commits or conspires to commit human trafficking offenses in or outside the U.S., or who the U.S. government knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe human trafficking, is inadmissible.

A spouse, son or daughter of a human trafficker, who has, within the previous 5 years, benefited from the illicit activity, or knew or should have known that he benefit was the product of such illicit activity, is also inadmissible. One exception is if the son or daughter was a child at the time he or she received the benefit.

Money Laundering

Section 212(a)(2)(I) of the INA states that a person who the U.S. government knows, or has reason to believe, has engaged, is engaging, or seeks to enter the U.S. to engage, in money laundering is inadmissible. A person who the U.S. government knows is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in money laundering, is also inadmissible.

When Do You Need an I-601 [INA § 212(h)] Waiver Due to Criminal and Related Grounds? 

Intended immigrants and permanent residents need an I-601 waiver under section 212(h) of the INA when they are barred from admission to the U.S. due to the following criminal grounds:

1. Crimes involving moral turpitude

2. One controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish)

3. Two or more criminal convictions (other than purely political ones) with an aggregate sentence imposed of at least five years

4. Prostitution

5. Unlawful commercialized vice, whether or not related to prostitution

6. Certain aliens involved in serious crimes who have asserted immunity from prosecution

When you are inadmissible due to crime-related grounds, you need the INA 212(h) waiver to get a green card, an immigrant visa, or a K visa to enter the U.S. or to be lawfully admitted to the U.S. as a permanent resident.

What are the Limitations of the I-601 [INA § 212(h)] Waiver?

The I-601 waiver under section 212(h) of the INA has several limitations:

It is not available for all crime-related grounds of inadmissibility. The I-601 waiver is unavailable to persons who are deemed inadmissible under sections:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to one single offense of simple possession of 30 grams or less of marijuana (or hashish); or

2. 212(a)(2)(C)[Controlled Substance Traffickers]

3. 212(a)(2)(G)[Foreign government officials who committed particularly severe violations of religious freedom]

4. 212(a)(2)(H)[Significant traffickers in persons/human traffickers]

5. 212(a)(2)(I)[Money laundering]

(NOTE TO NONIMMIGRANTS: A special authorization for admission as a nonimmigrant for crime-related grounds is available under section 212(d)(3)(A) of the INA. Whether you qualify for the nonimmigrant visa itself is a separate issue.)

It is not available to certain foreign nationals. The waiver cannot be granted, as a matter of discretion, to:

1. A foreign national who has been convicted of, or admitted committing murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.

2. A foreign national who was granted permanent residence and failed to accrue at least seven years of lawful continuous residence in the U.S. before receiving a Notice to Appear in removal proceedings.

[NOTE: On May 12, 2015, the Board of Immigration Appeals issued a decision, Matter of J-H-J, 26 I&N Dec. 563 (BIA 2015), stating that a person who adjusted to permanent resident status in the U.S. and who did not enter the country as an LPR is not barred from establishing 212(h) eligibility as a result of an aggravated felony conviction.   Based on this BIA decision, only those who entered the U.S. as LPRs and thereafter are convicted of an aggravated felony are prohibited from applying for a 212(h)waiver.]

 

It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .

It is not usually a stand-alone application. To obtain a section 212(h) waiver, the person must be applying or reapplying for adjustment of status, for a visa, or for admission to the United States. The section 212(h) waiver request is usually filed in conjunction with an I-485, adjustment of status application or an immigrant, K-3 or K-1 visa application.

One situation that allows a stand-alone request is when a permanent resident leaves the U.S. and is then charged as inadmissible, due to crime-related grounds, upon request for re-entry. Permanent residents who commit criminal offenses that make them inadmissible do not receive automatic re-entry to the U.S. Instead, they may file a stand-alone § 212(h) waiver in removal proceedings to retain their status. Stand-alone § 212(h) waivers may also be filed by immigrant visa holders, in which case, the waiver must be granted retroactively (nunc pro tunc) to make the visa valid.

Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, lawful permanent residents (green card holders) who depart the U.S. and seek re-entry are generally not regarded as seeking admission and are thus not subject to INA 212 inadmissibility grounds. But when any of the six exceptions under INA § 101(a)(13)(C) applies, permanent residents are subject to being denied admission to the U.S. One is when the permanent resident has committed a criminal offense listed in section 212(a)(2) (including crimes of moral turpitude, drug trafficking, or prostitution), except if since such offense the person has been granted an INA 212(h) waiver or Cancellation of Removal for Certain Permanent Residents under INA  240A(a).

A permanent resident who is inadmissible under section 212(a)(2) is normally paroled into the U.S. as an arriving alien seeking admission and then placed in removal proceedings to respond to charges of inadmissibility under INA 212 (or charges of removability under INA 237). Parole allows a person, who may be inadmissible or otherwise ineligible for admission into the United States, to be paroled into the United States for a temporary period.

A permanent resident may request a stand-alone section 212(h) waiver — without reapplying for a visa or adjustment of status —  if he is presently requesting admission into the United States. This means he has to to be paroled into the country and referred to the Immigration Court as an arriving alien seeking admission. If the waiver (or other relief) is denied in removal proceedings, the permanent resident status is revoked and the Immigration Court may issue a removal order or a voluntary departure grant.

Who Qualifies for the I-601 [INA § 212(h)] Waiver?

You qualify for the I-601 waiver [§ 212(h) waiver] if you are one of the following:

1. An immigrant who has a U.S. citizen or permanent resident spouse, parent, son or daughter who will suffer extreme hardship if you are not admitted to the U.S.

2. A self-petitioning abused spouse or child of a U.S. citizen or permanent resident, under the Violence Against Women Act (VAWA).

3. Inadmissible only under prostitution grounds [sections 212(D)(i) or (D)(ii) of the INA]; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security to the United States.

4. Inadmissible due to certain criminal activities (e.g. a crime involving moral turpitude; single offense of simple possession of 30 grams or less of marijuana) that occurred more than 15 years before the date of application for a visa, admission, or adjustment of status; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security of the United States.

Being eligible for the I-601 waiver does not necessarily mean you will get it.  As with other waivers available under the INA, §212(h) waivers are granted in the exercise of discretion. In addition to meeting the statutory requirements, you must present evidence showing the positive factors outweigh the negative factors in their case. Even if you are eligible for the waiver, the agency may still deny the request as a matter of discretion.

If you are convicted of a violent or dangerous crime, you must demonstrate “extraordinary circumstances,” such as national security or foreign policy considerations, or that the denial of admission would result in “exceptional or extremely unusual hardship.” Even if this higher standard is met, the agency may still deny the request as a matter of discretion.

Where Do You File An I-601 [INA § 212(h)] Waiver Application? 

The §212(h) waiver request is filed on a Form I-601, either with the USCIS office that is adjudicating the adjustment of status application, the U.S. Consulate that conducted the visa interview, or the Immigration Court (if you are in removal proceedings and filing for adjustment of status OR requesting admission as a permanent resident who was paroled into the U.S.).

The filing address for the I-601 application depends on whether you are:

An adjustment of status applicant who is filing or has already filed the I-485 application with USCIS;

An immigrant visa or K-3/K-1 nonimmigrant visa applicant who was found inadmissible by the U.S. Consulate at the visa interview; or

A VAWA self-petitioner seeking an immigrant visa or adjustment of status.

Direct filing addresses for the I-601 are available on the USCIS website.

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Getting an I-601 waiver for criminal grounds involves more than just submitting the form and documents listed in the instructions. You must also show USCIS how you qualify for the waiver and deserve it as a matter of discretion. An experienced immigration attorney can help you maximize your chance for approval by presenting a legal brief and explaining how you meet the eligibility requirements.

For more information on what to submit with your application and why having an immigration attorney helps, read our related article, What should you to do get an I-601 waiver for criminal grounds? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: Mark Morgan

Immigration Consequences of Criminal Offenses: Myths & Facts

When a person is charged with a crime, he and his criminal defense attorney are often most concerned with minimizing the penalties. The defendant might give up his right to a trial and enter a guilty plea or no-contest plea to a less serious charge, in exchange for the dismissal of other charges or a reduced sentence. But the U.S. immigration consequences can be far more serious than the jail time, fine, probation or other more direct consequences of the conviction.

Criminal convictions can lead to a non-citizen being deported from the United States, denied entry (or re-entry) into the United States, and stripped of immigration benefits, including eligibility to become a permanent resident or a naturalized citizen. The immigration consequences continue long after the person has already served his sentence.

If you are a foreign national who wishes to visit, immigrate to, or stay in the United States, you need to know the myths surrounding criminal offenses and their immigration consequences. The most common include:

Myth #1:  The “dismissal” of my criminal case, after I have met certain conditions, means I have no “conviction” under U.S. immigration law. 

Fact:  A conviction could still exist under federal immigration law even when a dismissal of the case means there is no conviction under state law.

You may qualify for a pre-trial intervention, first offender, or diversion program, in which counseling rather than punishment is emphasized. Some states and programs do not require defendants to enter a guilty plea or no-contest plea to qualify for the program. Prior to entering a plea, the person agrees to complete probation, anger management, group therapy, substance abuse treatment or other type of program. If the person successfully completes the program, the charges are dropped or the case is dismissed.

But when you must admit guilt or you are found guilty before the pre-trial intervention, first offender, or diversion program is imposed, this amounts to a conviction under federal immigration law. In this situation, a dismissal of the case — after you complete the program — does not wipe the slate clean for immigration purposes.

Immigration law defines “conviction” as a formal judgment of guilt or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed.

“Restraint on liberty” includes imprisonment, a fine or restitution, and probation. It also includes minimal community-based sanctions such as work-release programs, rehabilitation programs, house arrest, revocation or suspension of a driver’s license, and community service. Whether a jail sentence is actually served or suspended is irrelevant.

Unless a criminal case is outright dismissed, is stricken, or is not prosecuted — without any admission of guilt or penalty imposed — a criminal conviction exists under immigration law.

Myth #2:  An expungement (or sealing) of my criminal record means it is erased as if it never existed. 

Fact:  Generally, an expungement seals or deletes the criminal record in the local court and (perhaps) the state police’s databases.  Each state uses its own approach and procedures.  In most cases, a full expungement treats the offense as if it never occurred. For immigration purposes, however, an expungement does not erase the conviction.

Fingerprints taken when you were arrested remain in the FBI or federal databases. Immigration officials may still see or request expunged records for certain purposes.

When you file for a nonimmigrant visa, a visa waiver (under ESTA), permanent residence or U.S. citizenship, you are asked about arrests, charges and convictions. An expunged or sealed record does not make the arrest, charge or conviction go away for immigration purposes.

As part of a Form I-485 application for adjustment to permanent residence, Form I-90 application for replacement of green card, or Form N-400 application for naturalization, you must provide your fingerprints at a biometrics appointment.  A background check, including review of criminal records in the FBI database, will be conducted before you receive a decision on your application.

Your criminal record will normally turn up in the background check. If an immigration officer sees that you have a record, and you stated that you had no arrests, charges or convictions, he may deny your application based on fraud or willful misrepresentation of material fact to gain immigration benefits.

Immigration officials can sometimes obtain expunged records from the court. But you have the burden to produce court-certified records when you apply for certain immigration benefits, such as permanent residence, a new green card, or naturalization. Therefore, it’s best that you obtain the court-certified records before you seek an expungement. Otherwise, you might need to get the record unsealed to allow continued processing of your application.

Myth #3:  A relatively minor offense, such as a misdemeanor or a conviction resulting in a sentence under 1 year, will not cause any immigration problems.

Fact: A conviction does not necessarily disqualify a person from obtaining a visa, permanent residence, naturalization, or other immigration benefits. The  only situation in which a single conviction is an automatic and permanent bar to entering the U.S. is when the conviction is for an aggravated felony, and you have been previously removed due to the conviction.

In general, misdemeanor offenses carry less serious consequences than felony offenses. A sentence of less than one year can save the person from being deported without a viable defense. But the nature of the offense, type of conviction, and the maximum potential penalty are additional factors to consider.

Even non-violent, relatively minor misdemeanor offenses under state law can be classified as a felony or even an aggravated felony under federal immigration law. The Immigration and Nationality Act does not distinguish between felony and misdemeanor crimes. Rather, crimes are categorized by the type of conduct involved.

Aggravated Felony

A person convicted of an aggravated felony is ineligible for asylum, cancellation of removal, certain waivers of inadmissibility, and voluntary departure. Section 101(a)(43) of the Immigration and Nationality Act provides a list of offenses that are deemed aggravated felonies. They include:

  • murder
  • rape
  • sexual abuse of a minor (including statutory rape)
  • controlled substance trafficking
  • illicit trafficking in firearms or destructive devices
  • money laundering of more than $10,000
  • fraud or tax evasion involving a loss that exceeds $10,000
  • a crime of violence with a sentence of at least one year
  • a theft offense or burglary offense with a sentence of at least one year
  • perjury with a sentence of at least one year
  • kidnapping
  • commercial bribery, counterfeiting, forgery, or trafficking in vehicles
  • failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
  • obstruction of justice, perjury, or bribery of a witness, if the term of imprisonment was at least one year

While a reduced sentence under 1 year might help you avoid an aggravated felony charge, this only applies to a narrow group of convictions (e.g. theft and violent crimes).  There are various types of convictions that present immigration problems, no matter the sentence.

An aggravated felony is not the only crime that carries serious immigration consequences. Controlled substance violations, firearms offenses,  domestic violence, stalking, violation of protective orders, child endangerment, and child abuse are especially problematic.

Crime Involving Moral Turpitude

A Crime Involving Moral Turpitude (CIMT) often causes major immigration problems as well. A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent.

Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

A noncitizen is inadmissible to the U.S. if he is convicted of – or admits to committing – one CIMT (other than a political offense), unless he qualifies for:

(1) the petty offense exception, where the person committed only one CIMT ever, the CIMT has a potential sentence of a year or less, and a sentence of six months or less was imposed ; OR

(2) the youthful offender exception, where the person committed a single CIMT while under age 18, and at least five years have passed since the conviction and release from jail.

A noncitizen is deportable if convicted of a CIMT (other than a political offense) committed within five years after the date of his admission to the U.S., and for which a sentence of one year or longer may be imposed. The maximum sentence possible is the determining factor. For example, if the CIMT occurred within five years of the person becoming a lawful permanent resident, he is still removable from the U.S. if he could have been sentenced for 365 days or more. It doesn’t matter whether the actual sentence was less than 365 days or was suspended upon completion of probation.

A noncitizen is deportable for two or more convictions of crimes involving moral turpitude that occur anytime after admission to the U.S. on any visa, or after adjustment of status. The only two exceptions are if the offenses are “purely political” or arose in a “single scheme of criminal misconduct” (i.e. the very same incident).

To be admitted to the U.S. as a permanent resident or to prevent removal from the U.S. as a result of a CIMT, the person must qualify for certain relief, such as a 212(h) waiver in conjunction with adjustment to lawful permanent resident status.

Whether the person has multiple criminal convictions also plays a role. A noncitizen is inadmissible if convicted of two or more crimes (other than purely political offenses) – regardless of whether the conviction arose from a single trial or whether the offenses arose from a single scheme of misconduct, and regardless of whether the crimes involved moral turpitude –  for an aggregate confinement totaling five years or more.

In addition, any criminal record can make it much harder for you receive certain immigration benefits. For example, a disorderly conduct conviction or multiple DUI offenses are not automatic or conditional bars to naturalization. But they can make it harder for you to establish good moral character and easier for USCIS to deny your naturalization application – especially if they occurred within the statutory period (generally 3 to 5 years before you file your Form N-400.)

Myth #4: My criminal record will not matter if I have been a permanent resident for many years. 

Unconditional permanent resident status does not expire even when your 10-year green card is no longer valid.  But it can be revoked due to certain criminal convictions. As a permanent resident, you may also be denied-re-entry to the U.S. or be placed in removal proceedings on criminal-related grounds.

Although lawful permanent residents have more rights and privileges than undocumented immigrants and foreign nationals in non-immigrant status, only U.S. citizens are fully protected from the immigration consequences of criminal convictions.

Myth #5: Foreign convictions do not count for immigration purposes.

U.S. immigration authorities consider a foreign conviction to be a “conviction” in the immigration context if the conviction resulted from an offense deemed to be criminal by U.S. standards. Federal U.S. standards on sentencing are also used to determine whether the foreign conviction is a felony or a misdemeanor, regardless of the sentence imposed in the foreign jurisdiction. The U.S. also does not recognize foreign pardons.

The Form I-485 application specifically asks you to disclose whether you have been arrested, cited, charged, convicted or sentenced for crimes outside the U.S.. In the naturalization context, you are also expected to list criminal offenses that occurred outside the U.S.

Learn about the immigration consequences of a criminal charge or conviction before you enter a plea, leave the U.S., or apply for immigration benefits

In 2010, the U.S. Supreme Court ruled in Padilla v. Kentucky that the 6th Amendment right to counsel requires criminal defense attorneys to provide advice about the immigration consequences of a conviction to their noncitizen clients.  This decision, however, does not apply retroactively to pre-Padilla cases.

The immigration consequences depend on the elements of the crime, the nature of the offense, the potential sentence, the actual sentence imposed, and whether the person has other convictions.

Deportation, denial of entry to the U.S., and separation from families often have far more lasting effects than the sentence imposed.  Certain criminal convictions lead you into removal proceedings after you complete your jail sentence, or when you apply for a green card or for U.S. citizenship. You can also be denied re-entry to the U.S. as a permanent resident or valid visa holder on crime-related grounds.

You need to know how a conviction or sentence affects your immigration status before you enter a guilty plea, leave the U.S., or apply for immigration benefits including naturalization. Make sure to seek advice from an attorney who is experienced in the intersection between the two complex areas of immigration law and criminal law.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Jeffrey