The Effect Of Criminal Convictions on Immigration Status

This article is intended to provide the reader with a brief overview of the immigration laws as they relate to criminal conviction. This is only a general synopsis and the actual analysis of any specific criminal conviction should be completed by an attorney specializing in immigration law since the law is constantly evolving and subject to new interpretations.

In this article

  1. Immigration Removal for Criminal Convictions (an Overview)
    1. Deportation under Section 237
    2. Aggravated Felony
    3. Inadmissibility
  2. Mandatory Detention
  3. Relief
    1. Cancellation of Removal
    2. Waivers for those seeking Admission or for Reapplication for Permanent Resident Status
    3. Application for Asylum or Withholding of Removal
  4. Conclusion

I. Immigration Removal for Criminal Convictions (an Overview)

The deportation charges contained in Section 237 of the Act are relevant to individuals physically present in the United States and would most likely be charged if DHS proceeds were to initiate removal proceedings to individuals who entered the United States legally and permanent residents. The INA treats special categories of criminal behavior that are defined as “aggravated felonies” as deserving of harsher treatment.

a. Deportation under Section 237

An individual is subject to removal if convicted of one crime involving moral turpitude committed within 5-years after the date of admission and the crime is of such nature that a sentence of one year or longer may be imposed. (Aggravated felonies are treated separately under the law and are not the subject of this sections analysis: see below).

If that individual is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme, regardless of sentence, then that person is subject to removal.

Additionally, if an individual is convicted of domestic violence, a crime of stalking, or a crime of child abuse, child neglect or child abandonment, then he or she may be deportable. A domestic battery that is grounds for removal is normally characterized as one resulting in “bodily harm” or violation of an order of protection and the record or conviction must have occurred after April 19, 1996.

An individual who at any time after admission has been convicted of a violation of a controlled substance law or regulation of a State, the United States, or a foreign country, other than a single possession offense for one’s personal use of 30 grams or less of marijuana, is subject to removal.

The law states that a DUI is not a crime involving moral turpitude if it is a misdemeanor. It does not, therefore, have any consequence in a deportation proceeding. See Matter of Torres-Varela, 23 I. & N. Dec 78 (BIA 2001), a DUI, even if a repeat offense is not normally a crime involving moral turpitude unless the subsequent offense is considered a violation of a prior conviction.

b. Aggravated Felony

Additionally, there is a category of grounds for deportation for an individual “who is convicted of an aggravated felony at any time after admission. 237(a)(2)(iii).”  The actual definition of “aggravated felony is found in 8 USC 1101 et. seq…. The term “aggravated felony” is a reference to particularly serious crimes deserving of special attention under the immigration laws. There are more than 30 offenses listed including murder, federal drug trafficking, sexual abuse of a minor, and illicit trafficking of certain firearms and destructive devices. Also, commonly charged as a basis for removal are theft, where sentence imposed is one year or more (even if suspended), and convictions for fraud where the loss was $10,000 or more.

c. Inadmissibility

The grounds for inadmissibility are applicable to aliens applying at the border for admission, or aliens who entered without inspection. The grounds of inadmissibility may also be charged if, at the time of last entry, an alien was subject to a ground of inadmissibility (such as previously committed fraud or criminal activity).

The conviction of one felony, if a crime involving moral turpitude, is a basis for inadmissibility. Additionally, if convicted of two crimes involving moral turpitude regardless of length of sentence the individual is not admissible.

An alien is inadmissible for a misdemeanor (defined as less than one year maximum sentence) involving moral turpitude if the sentence imposed included a term of imprisonment in excess of 6 months (regardless whether sentence was ultimately executed).

Additionally, an individual is inadmissible if there are two or more convictions regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more.

II. Mandatory Detention

In 1996, Congress enacted legislation requiring mandatory detention for any individual who was subject to criminal removal, with some slight exception, under 8 USC 212(a)(2) or 237(a)(2). If an individual is convicted (it does not matter when the crime occurred) after October 9, 1998, that makes him or her either deportable or inadmissible, then that individual is subject to mandatory detention without the possibility of release during the removal proceeding. There is one exception to mandatory detention and that is if the individual has one felony conviction for a CIMT, but the actual sentence is less than one year and it is not an aggravated felony.

DHS/ICE has programs such as ISAP to allow individuals to remain out of jail subject to some restrictions such as wearing an ankle bracelet and supervised check-ins with local ICE offices during proceedings. ICE does not often exercise this option when an individual has been convicted of a crime that makes them deportable.

III. Relief

There are only a few categories of relief available to individuals in with a criminal record. They are: 1.) cancellation of removal; 2.) waivers for admission and readjustment to permanent resident status; and 3.) application for asylum, withholding of removal or Convention Against Torture (CAT).

a. Cancellation of Removal

The law provides for Cancellation of Removal in two circumstances. They are: 1.) Cancellation of Removal for Long Term Permanent Residents; and 2.) Cancellation of Removal of non-Permanent Residents.

The law regarding “Cancellation of Removal for Long Term Permanent Residents” (COR) under INA §240A(a) states the Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien-

    1. has been an alien lawfully admitted for permanent residence for not less than 5 years,
    2. has resided in the United States continuously for 7 years after having been admitted in any status, and
    3. has not been convicted of any aggravated felony (see below).

The “stop time rule”, states that continuous residence ends when an offense under section 237(a)(2) has been committed. This means an individual needs 7 years of continuous residence in any status to be eligible prior to commission of a crime to be eligible for this form of relief.

The Cancellation of Removal of a non-Permanent Resident is available to individuals residing in the United States who do not have permanent resident status. However, its only available if that individual has continuously resided in the United States for 10 years (not available to crewman), has not committed crimes for which he or she is deportable or inadmissible (with limited exceptions), and is a person of good moral character. If eligible, the waiver requires proof of exceptional and extreme hardship to a qualifying relative such as a spouse, parent, or child, who is either a citizen or permanent resident. This type of cancellation of removal has significant application to individuals who do not have criminal arrests but has limited application to those convicted of crimes due to the difficulty to prove good moral character.

b. Waivers for those seeking Admission or for Reapplication for Permanent Resident Status

Also, immigration laws allow a permanent resident to seek waivers of criminal matters through admission or through reapplication for permanent resident status. However, if the crime is an aggravated felony or occurred within 7 years of the grant of permanent residence then this waiver may not be available.

c. Application for Asylum or Withholding of Removal

Finally, there is relief for individuals if they can establish grounds for Asylum, Withholding of Removal. These three categories all relate to fear of persecution if returned to the individual’s home country on account of race, religion, membership in a social group, political opinion or nationality.  There is also something called Convention against Torture (CAT), which only requires evidence that the individual would be tortured if they go back to their home country by their government or a group that the government does not care to control (or acquiesces to).

Asylum requires filing within one year of entry to the United States and precludes application by individuals who have been convicted of an aggravated felony or a serious crime.

To successfully petition for withholding or deferral of removal, an individual must show that if returned to his or her country, it is more likely than not that his or her life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. (“[T]he Attorney General may not remove him to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”).  There is an exception to this rule when the individual has been convicted of a “particularly serious crime.”  An individual convicted of a “particularly serious crime” is ineligible for withholding of removal under 8 USC. § 1231(b)(3).  A crime where sentence imposed of five or more years is automatically a “serious crime.” The determination whether crimes with lesser sentences are a “serious crime” is made on a case-by- case bases. The factors to be considered include nature of the crime, the length of sentence, and the circumstances under which the crimes were committed, as well as a determination whether he is a danger to the community.

To obtain CAT relief, an individual would have to “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). “Torture” is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).

IV. Conclusion

These are complex laws so we suggest that individuals contact us in the initial stages of a criminal case so we can help with the analysis of the consequence of a conviction upon a permanent resident or undocumented alien. If already convicted, we can determine if an alien is subject to removal, the exceptions that might apply, and the waivers that may be available.

It is highly recommended that potential applicants consult with an attorney prior to initiating their immigration process. The information provided above is not intended as a substitute for seeking legal counsel regarding individual applications for permanent residency based on marriage. For more information, please feel free to reach out to one of our attorneys.