IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTIONS
Immigration consequences for crime convictions are an ever-changing part of immigration since the Court is Courts are constantly interpreting law and States are constantly adding or changing criminal charges.
The Immigration Nationality Act (INA) defines "conviction" as follows:
- The term "conviction" with respect to an alien means a formal judgment of guilt of the alien entered by a court, where the following requirements are met:
- A judge or jury has found the alien guilty, the alien has entered a plea of guilty, or he or she has admitted sufficient facts to warrant a finding of guilty.
- The judge has ordered some form of punishment, penalty, or restraint be imposed on the alien's liberty.
- Any reference to a term of imprisonment or a sentence includes the period of incarceration or confinement ordered by the court of law whether it was fulfilled or not.
The Immigration Nationality Act (INA) creates US Immigration law. There are two primary sections that deal with immigration consequences of criminal convictions: Section 212 and Section 237.
Section 212 is generally used for people who entered the United States illegally. Section 237 is generally used for people who entered the United States legally or who are now Conditional/Lawful Permanent Residents/Non-Immigrant status.
I point this out because the consequences after being admitted can be very different from the consequences of being here without being admitted.
Below I have tried to simplify the respective consequences for you, but remember this area of immigration law is complex and always changing. Thus, what I have below really only constitutes a rough guideline.
SECTION 212 INA:
FOR ALIENS WHO ENTER WITHOUT INSPECTION
What Section 212 means to a person here illegally:
In general, any alien convicted of--or that admits to having committed--or that admits to currently committing--certain acts will not receive a visa and may be deported. These include:
- A crime involving moral turpitude. (The law does not define moral turpitude, but it generally means if the crime you are charged with requires that you “intended” to do an act with an evil motive/plan. In other words, you meant to cause harm.)
- A violation, conspiracy or attempt to violate any law or regulation relating to a controlled substance (ie, drugs) that a state, the United States or a foreign country has.
- Any alien convicted of two or more offenses (other than purely political offenses) for which the aggregate sentences to confinement were five years or more is inadmissible. This is regardless of whether the conviction was in a single trial, whether the offenses arose from a single scheme of misconduct, or whether the offenses involved moral turpitude.
- Controlled substance traffickers will not receive a visa. This would include any alien that the consular officer or the Attorney General knows or has reason to believe the following:
- Is or has been an illicit trafficker in any controlled substance or in any listed chemical, or is, or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical.
- Is the spouse or child of an alien that is inadmissible because they have received any financial or other benefit from the illicit activity of that alien within the last five years and knew (or reasonably should have known) that the financial or other benefit was the product of such illicit activity.
- Prostitution and commercialized vice are also not allowed—This would include anyone that:
- Is coming to the United States solely, principally, or incidentally to engage in prostitution or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status.
- Directly or indirectly procures or attempts to procure prostitutes or persons for the purpose of prostitution or anyone that receives or has received proceeds of prostitution in the past.
- Is coming to the United States to engage in any other unlawful commercialized vice, whether or not it is related to prostitution.
Section 212 Waivers:
Waivers for Criminal Convictions
Controlled Substance (Marijuana)
The Attorney General may, in his discretion, waive the controlled substance requirement as long as it was a single offense of simple possession of 30 grams or less of marijuana if
the following requirements are met:
In the case of any immigrant, it must be established to the satisfaction of the Attorney General that these prerequisites are met:
- The possession occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status.
- The admission to the United States of this alien would not be contrary to the national welfare, safety, or security of the United States.
- The alien has been rehabilitated.
Special consideration will be given in the case of an immigrant that is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident relative.
When all of these conditions are met, the Attorney General may consent to the aliens applying or reapplying for a visa for admission to the United States or adjustment of status.
No waiver will be provided in the case of an alien that has been convicted of (or that has admitted to) murder, criminal acts involving torture, or an attempt or conspiracy to commit murder or torture.
No waiver will be granted in the case of an alien that has previously been lawfully admitted for permanent residence to the United States as an alien if either the alien has been convicted of an aggravated felony since then or the alien has not lawfully resided continuously in the United States for a period of at least seven years before the date of initiation of proceedings to remove the alien from the United States.
No court will have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.
The Petty Offense Exception
The Petty Offense Exception is applied to only one crime if:
- The crime was committed when the alien was under 18 years of age and the crime was committed more than five years before the date of application for a visa or other documentation.
- The maximum penalty possible for the crime that the alien was convicted did not exceed imprisonment for one year.
- Additionally, if the alien was convicted of such a crime and was not sentenced to a term of imprisonment in excess of 6 months.
The Petty Offense Exception is very important for two reasons:
- It can mean the difference between needing a waiver for your conviction and not;
- It can mean the difference between being eligible for a bond or not. Sadly, it will not help you remain eligible for the Cancellation of Removal defense if you are in removal proceedings.
SECTION 237 INA:
FOR ALIENS ENTERED BY ADMISSION
Any alien (including an alien crewman) admitted to the United States may be deported for any of the following criminal convictions.
- Any alien that is convicted of a crime involving moral turpitude (see below) committed within five years after the date of admission and for which a sentence of one year or longer may be imposed is deportable.
- Any alien that is later convicted of two or more crimes involving moral turpitude is deportable.
- Any alien that is convicted of an aggravated felony (see definition below) at any time after admission is deportable.
- Any alien that is convicted of a high-speed flight from an immigration checkpoint is deportable.
- Any alien who is convicted of being an unregistered sex offender is deportable.
- Any alien that is later convicted of a violation of any law or regulation of a state, the United States, or a foreign country relating to a controlled substance (ie, drugs) is deportable unless it is a single offense involving possession for personal use of 30 grams or less of marijuana.
- Any alien that becomes a drug abuser or addict after admission is deportable.
- Any alien that is later convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting to purchase or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry any weapon, part, or accessory that is a firearm or destructive device in violation of any law is deportable.
- Any alien that has been convicted of a conspiracy or an attempt to violate any of the following is deportable:
- Espionage, sabotage, or treason and sedition for which a term of imprisonment of five or more years may be imposed.
- Violation of any provision of the Military Selective Service Act or the Trading With the Enemy Act.
- Crimes of domestic violence, stalking, or violation of protection order or crimes against children.
- Any alien that is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.
- Any alien that is in violation of a protection order is deportable.
- Any alien convicted of human trafficking is deportable.
Section 237 Waivers:
Waivers for Criminal Convictions
For CIMTs, Multiple Criminal Convictions, Aggravated Felonies, and High Speed flight to avoid an immigration check point may be waived if there is a full and unconditional pardon by the President of the United States or by a governor has been granted subsequent to the conviction.
There is not a waiver for failure to register as a sex offender.
The only waiver available for drug convictions is where the conviction involved personal use of 30 grams or less of marijuana. However recently the U.S. Supreme Court has found that any drug conviction for personal use can be waived.
What is a Bond?
A bond is money paid to get someone out of jail.
Not everyone qualifies for a bond.
Who Can Bond?
Whether someone is able to pay an immigration bond is based on their flight risk and if they present a danger to the community. If they have been convicted of a crime, it depends on the nature of the charge and the sentence imposed by the court. If they have an existing order of removal, they may not be bond eligible either.
Bonding Before a Conviction
Mandatory detention is based upon conviction of certain criminal charges, such as a CIMT, multiple criminal convictions, aggravated felony, drug conviction, certain firearms offenses, and others.
Where possible, it is always best to secure bond for the criminal charge before allowing the alien to plead or before a finding of guilt is determined by a jury.
The effect of bonding prior to the conviction forces ICE to take custody of the alien. Where no conviction exists and only criminal charges are pending, this does not apply. As a result, a bond may be secured either with ICE or through the immigration judge.
Plea Agreement & Sentencing
Plea deals often determine the long-term fate of the alien. Plea deals provide certain determination of whether or not an alien will maintain, lose, or acquire legal status. Among the many benefits of a plea deal, they can take advantage of overly broad and divisible statutes.
Overly broad statutes provide a mechanism that may prevent the government from meeting its burden of proving a conviction by clear and convincing evidence, which is necessary to prove an alien is removable from the United States.
Divisible statutes contain a variety of subsections, some of which may be CIMTs, although others are clearly not. A plea agreement gives the defense attorney a way to apply the factual basis to the elements of a given subsection in such a way as to avoid falling under a CIMT.
Pre Plea Diversion/Deferred Prosecution
Under this scenario, you do not enter a formal plea of guilt. Rather, you are placed under civil probation.
During this probationary period, you will likely be required to not commit any crimes, to complete community service and to pay a civil penalty.
If you successfully complete this probationary period, the charges are dismissed.
This will result in no immigration consequences.
Where the drug court allows the alien defendant to complete the requirements without having to admit guilt or where the court withholds making a finding of guilt, the case is dismissed, similar to pre plea diversion/deferred prosecution.
If the court must make a finding of guilt prior to enrolling in drug court there will be adverse immigration consequences.
If the alien qualifies as a juvenile but is charged as an adult, the case can be removed to Juvenile Court.
In Juvenile Court the defendant is not convicted. Rather adjudicated responsible.
Adjudications of juvenile delinquency are not considered criminal convictions under immigration law.
Post Conviction Relief
Immigration will accept post conviction relief if it is based on a Constitutional or procedural violation and not for immigration purposes.
For example, if the Court fails to advise you on potential immigration consequences of your conviction.
A governor’s pardon may qualify a lawfully admitted alien to receive a waiver for an Aggravated Felony or CIMT conviction but not a drug-related conviction.
Becoming a U.S. Citizen After a Conviction
United States Citizenship and Immigration Service (CIS) will review the alien’s criminal history for a minimum of five years.
If any conviction exists, CIS will generally look beyond five years to see prior conviction.
If a pattern exists, the likely scenario is that CIS will find the alien lacking in good moral character and the alien will be denied citizenship to the United States.
Definitions of Crimes for Immigration
Crime of Domestic Violence
- Any crime of violence against a person committed by a current or former spouse.
- Any crime of violence by an individual with whom the person shares a child in common.
- Any crime by an individual who is cohabiting with or has cohabited with the person as a spouse, or
- Any crime by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs.
This would also include any other individual whom the person is protected from under the domestic or family violence laws of the United States as well as the laws of any state, Indian tribal government, or unit of local government.
Crime Involving Moral Turpitude(CIMT)
The law does not define CIMT.
What constitutes a CIMT is determined by the particular elements of the crime.
In some instances, the court has already ruled whether or not a statute is a CIMT.
Many criminal statutes are broadly written, and leave "wiggle room" to argue the conviction is not a CIMT.
"Moral Turpitude" is defined as "conduct that is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed between persons, or to society in general" (BIA 1996).
The elements of the statute greatly control whether a crime is considered a CIMT. Many times CIMT is found when Specific Intent is present.
CIMT is also common when "Knowledge" is an element.
"Recklessness" may be a CIMT as well.
"Negligence" may not be a CIMT, because it lacks a culpability requirement.
The term “aggravated felony” means:
- murder, rape, or sexual abuse of a minor.
- illicit trafficking in a controlled substance, including a drug trafficking crime.
- illicit trafficking in firearms, destructive devices, or explosive materials.
- an offense related to laundering of monetary instruments engaging in monetary transactions in property derived from specific unlawful activity if the amount of the funds exceeded $10,000.
- an offense related to any of the following:
- explosive materials offenses
- firearms offenses
- a crime of violence (not including a purely political offense) for which the term of imprisonment was at least one year.
- a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment was at least one year.
- an offense relating to the demand for or receipt of ransom.
- an offense relating to child pornography.
- an offense relating to racketeer influenced corrupt organizations or a gambling offense, for which a sentence of one year imprisonment or more may be imposed.
- an offense that relates to the following:
- owning, controlling, managing, or supervising a prostitution business.
- transportation for the purpose of prostitution
- peonage, slavery, involuntary servitude, and human trafficking
- gathering or transmitting national defense information, disclosing classified information, sabotage, or treason
- protecting the identity of undercover intelligence agents
- fraud or deceit in which the loss to the victim or victims exceeds $10,000
- tax evasion, in which the revenue loss to the government exceeds $10,000
- smuggling of aliens, except in the case of a first offense for which the alien has affirmatively shown that he or she committed the offense for the purpose of assisting, abetting, or aiding only their spouse, child, or parent (and no one else).
- an offense committed by an alien who was previously deported on the basis of a conviction for an offense described earlier.
- an offense that either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument and for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has shown that he or she committed the offense for the purpose of assisting, abetting, or aiding only their own spouse, child, or parent (and no one else).
- an offense relating to the failure of a defendant to appear for service of sentence if the underlying offense is punishable by imprisonment for a term of five years or more.
- an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles when the identification numbers have been altered for which the term of imprisonment is at least one year.
- an offense relating to obstruction of justice, perjury, or bribery of a witness for which the term of imprisonment is at least one year.
- an offense relating to a failure to appear before a court after receiving a court order to answer to or dispose of a charge of a felony for which a sentence of two years’ imprisonment or more may be imposed.
- an attempt or conspiracy to commit any of the above offenses.