If you have been charged or convicted of a crime you may be concerned about how this will affect your Immigration status. Certain offenses can make you inadmissible and/ or deportable. However, before we start discussing these offenses it is important to understand the distinction between the grounds of inadmissibility and deportability as different rules apply in each case.
Please note that this article intends to cover the most common offenses that could result in an individual being deemed inadmissible and deportable and does not include every possible offense.
Inadmissibility v Deportability
Inadmissibility
The ground of inadmissibility arises when someone seeks admission to the U.S. This includes someone applying for a visa or coming into the U.S. It also includes nonimmigrants applying for a green card because they are considered to be seeking “admission”. However, green card holders returning from a trip abroad are generally not considered to be seeking admission and therefore the grounds of inadmissibility do not apply.
Deportability
The ground of deportability arises in the context of determining whether someone who is already living in the U.S., whether on a visa or a green card, can be deported based on their conduct.
Please note that it is possible for someone to be both inadmissible and deportable.
What is considered to be a conviction for Immigration purposes?
While a conviction is generally required to make someone inadmissible or deportable, for Immigration purposes the definition of conviction is much broader and means a formal judgment of guilt entered by the court. A conviction for immigration purposes also exists in cases where the adjudication of guilt is withheld if the following conditions are met:
- A judge or jury has found the alien guilty or the alien entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and
- The judge has ordered some form of punishment, penalty, or imposed a restraint on the alien’s liberty.
This means just because you were not convicted by a Judge does not mean that it will not be considered a conviction for immigration purposes.
Inadmissible offenses
As mentioned above certain crimes can make someone inadmissible to the United States. This includes anyone who admits to a DHS/Consular officer having committed such a crime. But which crimes should you be concerned about?
- Crimes of Moral Turpitude (CIMT)
CIMTs are probably the most common type of offense that we have to consider as there is a long list of crimes that could be considered CIMTs.
Unfortunately, there is no statutory definition for what constitutes a CIMT, however, the courts have held that moral turpitude generally refers to the following:
“conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”
CIMTs can be broken down into 4 categories as follows:
- Crimes against a Person g. Assault with a dangerous weapon, Assault with intent to rob or kill or to commit rape, Indecent Assault.
- Crimes against Property g. Arson, Burglary, Extortion, Forgery.
- Sexual and Family crimes g. Indecent Assault, Rape, Prostitution; and
- Crimes against the authority of the government g. Bribery, Counterfeiting, ID Document Fraud, Immigration Fraud.
Due to the uncertain nature of what actually constitutes a CIMT, you should consult with an experienced Immigration Attorney to discuss the specific circumstances of your case. For example, a simple DWI is generally not considered to be a CIMT. However, aggravated drunk driving which includes driving drunk with the knowledge of an invalid license has been found to be a CIMT.
Exceptions
Generally, an individual convicted of one CIMT is inadmissible. However, there are two exceptions:
- Petty offense exception- an individual convicted of a CIMT where the potential sentence is 1 year or less and the sentence imposed is less than 6 months cannot be found to be inadmissible.
- Youthful offender exception- this exception only applies to individuals that commit a CIMT under the age of 18. Once 5 years has passed since the commission of the offense and the end of any confinement, the individual cannot be found to be inadmissible.
Other offenses
Other offenses that can make someone inadmissible include the following:
- A person convicted of two or more offenses of any type and received aggregate sentences of five or more years;
- A person convicted for any controlled substance offense;
- A person found to have trafficked or assisted in the trafficking of controlled substances, or knowingly benefitted from a spouse or parent’s trafficking activities;
- A person coming to the U.S. to engage in prostitution or commercialized vice;
- A person who previously departed the U.S. as a condition of receiving immunity from prosecution for a serious crime committed in the U.S.;
- A person engaged in severe violations of religious freedoms as an official in a foreign government;
- A person engaged in trafficking in persons or knowingly benefitted from a spouse or parent’s trafficking;
- A person who has engaged in money laundering or is coming to the U.S. to launder money.
Please note that individuals can also be found to be inadmissible for other reasons such as Health-related grounds, likely to become a public charge etc. However, this article is intended to focus on criminal offenses only.
Deportable offenses
Immigrants and non-immigrants may be deported for certain offenses. This includes, but is not limited, to the following:
- Aggravated felonies
Certain offenses have been defined as aggravated felonies and this includes rape, murder, or sexual abuse of a minor.
It also encompasses trafficking offenses related to drugs and firearms, Money laundering, fraud, crimes of violence, theft or burglary, commercial bribery, obstruction of justice, creating false documents, smuggling and various other offenses.
- Crimes of Moral turpitude
A person who is convicted of a crime of moral turpitude within 5 years of admission and for which he/she could receive a sentence of 1 year is deportable.
Furthermore, a person who is convicted for two or more Crimes of Moral Turpitude (CIMT), following admission, not arising out of a single scheme of criminal misconduct, is also deportable.
- Controlled substance offenses other than a single offense for possession for one’s own use of 30 grams or less of Marijuana;
A person who is convicted of an offense relating to a controlled substance is deportable.
This also includes a person convicted for an attempt to possess, distribute or manufacture a controlled substance.
However, any record that does not specifically identify the drug cannot be used to support an order of deportability.
There is a narrow exception for controlled substances which is a conviction for a single offense for simple possession of 30 grams or less of marijuana. Such a conviction does not make a person deportable.
- Convictions for crimes of domestic violence, stalking and child abuse, child neglect or child abandonment; and
Let’s look at the Domestic Violence conviction because again this is a more common offense compared to the others that fall under this category.
Like any deportation ground, a conviction for Domestic violence can cause a person to be placed into removal proceedings and charged with being deportable. However, deportability for Domestic violence requires a person to be convicted of a crime of violence and sufficient evidence to prove that the victim and perpetrator were in a qualifying domestic relationship.
Due to the requirement that the offense be a crime of violence, not every domestic violence offense is a deportable one. A crime of violence under 18 U.S.C. § 16 includes an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,”or a felony that by its nature involves significant risk of use of such force.
This ground of deportability also applies to a person who violates a protective order.
- Any alien who falsely represents himself to be a citizen of the U.S is also deportable.
This ground of deportability includes a person that votes, for example, in a Federal election. In order to vote in a Federal election, you are required to be a U.S. Citizen.
In 2019, the Board of Immigration Appeals (BIA) published one of the most significant decisions relating to a false claim of citizenship. In Matter of Zang the BIA held that a false claim to citizenship does not require intent. Therefore, a person who knowingly or unknowingly makes a false claim to citizenship is deportable.
Conclusion.
Only after becoming a citizen is a person truly safe from the grounds of inadmissibility and deportability.
In certain circumstances, it may be possible for you to apply for a waiver. If granted this will allow you to continue with your application.
If you have questions about a conviction or if you have been charged with an offense and would like to discuss this please contact our Partner, Chris Prescott at cprescott@patellegal.com