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Criminal Conviction and its Consequences on Immigration Status


BY Jian Joe Zhou, Attorney at Law Zhang Associates, P.C [ December 08, 2008 at 21:31:31 ]

Victor Li moved from China to the U.S. over 10 years ago. Though he was eligible to apply for U.S. citizenship, he wanted to keep his Chinese citizenship so he never applied for U.S. Citizenship. In late 2007, a Texas Federal court convicted Victor of presenting fraudulent papers to a government agency, and he was sentenced to 4 years imprisonment. Associated with the sentence, the court noted that Victor would be subject to deportation upon completion his time in jail. For Victor, his criminal conviction not only resulted in jail time; it also resulted in his loss of green card privileges in the United States.

It is important that all non-Citizens (non-immigrant visa holders and green card holders) be aware of the immigration consequences that come from criminal convictions. Sometimes common violations such as domestic violence, driving under the influence (DUIs), or drug possession can have significant impact on the future.

The immigration consequences of criminal activities may have a fatal effect on an alien’s ability to enter or remain in the United States. The two major implications for an alien’s immigration process in the U.S. are inadmissibility—the inability of an applicant to seek admission to the U.S.—and deportability—the removal of an alien from the U.S. If an alien is considered inadmissible or deportable, he/she may be unable to request entry after arriving at a U.S. port of entry, change or adjust his/her status while in the U.S., or apply for an immigrant or non-immigrant visa. It is also important to note that even legal permanent residents (green card holders) can face immigration repercussions for criminal activity. Legal permanent residents may be unable to reenter the U.S. after a trip abroad, be deported, or be unable to naturalize.

The Immigration and Nationality Act (INA) which regulates U.S. immigration includes different classifications for criminal activity, each with their own consequences. The two main categories are crimes of moral turpitude (CMTs) and aggravated felonies. There are also specific sections of the INA that deal with certain types of criminal activity; many of these crimes will also fall in one or both of the two main groups.

1. Crimes of Moral Turpitude (CMTs)

Crimes of moral turpitude (CMTs) are broadly defined as acts that are considered inherently wrong, base, vile, or depraved by general societal standards. CMTs are not defined by the severity of the crime or the severity of the punishment and there is no set definition for CMTs within immigration law. Rather, most determinations of CMTs are decided by case law or on a case-by-case basis and will often vary depending on the state or country where the crime was committed. Examples of CMTs include larceny, fraud, and crimes of violence with corrupt or vicious intent, such as serious domestic violence in some states.

If an individual has been convicted of or admits to having committed one CMT, he/she is considered inadmissible unless the act falls under the “petty offense exception.” The petty offense exception applies in situations where an individual 1) has only one conviction of a CMT 2) was sentenced to less than 6 months in prison, and, 3) was convicted of an offense where the possible maximum sentence is less than one year imprisonment. Therefore, being convicted of or admitting to having committed more than one CMT will lead to disqualification of Petty Offense Exception. Those who were convicted for or admitted to having committed to a CMT with possible sentence of one year or more imprisonment within the past five years of the date of admission are also subject to deportation.

2. Aggravated felonies

Unlike CMTs, aggravated felonies are clearly defined in the INA. Aggravated felonies include acts such as murder, rape, or sexual abuse of a minor, trafficking of illegal substances or firearms, kidnapping, and certain offenses related to gambling and prostitution. It also includes thefts and crimes of violence when the term of imprisonment imposed is greater than one year. This definition applies to all federal and state convictions and also foreign convictions if the imprisonment sentence was completed within the past 15 years. Contrary to the name, aggravated felonies do not need to be felonies; a misdemeanor conviction may be seen as an aggravated felony for immigration purposes.

Convictions for aggravated felonies do not automatically lead to inadmissibility; however, these convictions often fall under other categories such as CMTs or drug offenses which do cause inadmissibility. Additionally, they may be considered when an immigration officer is reviewing an applicant and may factor in to a discretionary denial. Aggravated felony convictions are grounds for deportation.

3. Other categories of criminal activity

The INA includes several classifications for offenses, many of which are included in the broader categories mentioned above. Among the more common of these smaller categories are controlled substance violations, firearms offenses, domestic violence, and immigration violations such as passport or visa fraud.

a. Controlled Substance Violation

A controlled substance violation includes convictions of or admittance to violations of any state, federal, or foreign law on controlled substances. This category also includes offenses related to drug paraphernalia if accompanied by use or intent to use. Controlled substance violations will cause inadmissibility and may cause deportability unless the only offense committed was a simple possession.

b. Firearms Offenses

Firearms offenses, which include illegal possession of guns, bombs or other destructive devices, are not necessarily inadmissible but may factor in to discretionary denial of admission. They are, however, deportable.

Immigration violations include failure to register and visa or passport fraud. These violations may cause inadmissibility depending on the federal law and are grounds for deportation.

4. Waivers and exceptions

There are limited immigration waivers and exceptions available to aliens who are convicted of criminal activities. The petty crime exception may be a solution to inadmissibility for aliens who have been convicted of only one CMT provided that the maximum penalty for the crime is less than 1 year imprisonment and maximum sentence that individual served was less than six months. There are also other waivers such as the 15 years waiver or the hardship waiver that may apply.

Concluding Marks

Many immigrants or non-immigrant visa holders had worked very hard to make their way to the United States. In the U.S., many new immigrants have realized or are realizing their American dreams thanks to their intelligence, diligence and persistence. However, a criminal conviction may destroy the whole dream, not only through punishment from the court, but also through possible deprivation of stay or reentering abilities.

This was certainly true for Victor Li, the Chinese immigrant mentioned in the beginning of our article. Victor first came to the U.S. as a student of political science. He later on completed law school and became a lawyer. He had lived an affluent life with his family in the U.S. Now, he is serving in a federal prison and will face deportation once he gets out. He has no idea what will his future life and career will look like in China, and he does not know how to hold his family together after his deportation.

Special Announcement:
The immigration process is often difficult and confusing. Therefore, experienced attorneys at Zhang & Associates would like to extend an invitation to our free immigration seminars. We are holding seminars on Saturday, December 13th in our Houston, Chicago, and New York offices. For more information about times, locations, and RSVP information, please visit our website at: Free Immigration Seminars in Houston, Chicago, and New York on Saturday, December 13th (http://www.hooyou.com/news/news112708seminarDec13.html)
. *Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com). Joe has more than 8 years of experience in employment/business immigration and international law practice. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at jzhou@hooyou.com .


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