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.
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:
- 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
- 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.
Controlled Substance Violations
Section 212(a)(2)(A) (i)(II) of the INA states a person is inadmissible if he 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 (Controlled Substances Act). To be subject to this permanent bar, the person must be convicted of or admit to the essential elements of a controlled substance violation. This includes simple possession or use of marijuana or any other drug listed in Title 21, section 802.
The 212(h) waiver is available only when the intended immigrant has one controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish).
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.
Criminal Records in general
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 U.S. immigration or travel 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. Only full and unconditional U.S. pardons for a U.S. conviction – granted by the highest executive authority – removes deportability and inadmissibility under INA 212(a)(2)(A)(i)(I) (crime involving moral turpitude). Foreign pardons do not county for U.S. immigration or travel purposes.
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 and in visa applications, you are also expected to list criminal offenses that occurred outside the U.S., regardless of whether they resulted in a conviction or guilty plea.
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.
Photo by: Jeffrey