IMMIGRATION CONSEQUENCES OF A CRIMINAL CONVICTION
If you are a convicted of a criminal offense in Arizona, it is important to know that there may be immigration consequences to your conviction, apart from the punishment you receive from the court. If you are an undocumented immigrant, a visa holder, or a permanent resident, it is important that you understand the potential immigration consequences of a criminal conviction. It is imperative that you speak with an attorney about these immigration consequences.
Here are just some of the ways that a conviction can affect your immigration status:
DEPORTABILITY
Deportability applies to non-citizens who entered the U.S. legally (such as a lawful permanent resident), but are now subject to being expelled (deported). Several types of criminal convictions can make a person deportable, although that person may still have affirmative defenses that can be raised to avoid deportation.
An “Aggravated Felony” is the worst category of crimes for immigration purposes because being convicted of an aggravated felony makes you ineligible for most forms of relief and subjects you to mandatory detention. An aggravated felony is not necessarily the same as a “state felony conviction” and is specifically defined in INA § 101 (a)(43); 8 U.S.C. § 1101(a)(43) (2006). An aggravated felony conviction will make you deportable. Here is a list of most aggravated felonies:
(1) Crimes of violence for which the penalty was at least one year (if physical force was used or most likely could have been used in committing the crime, the crime may be considered a crime of violence and, therefore, an aggravated felony);
(2) Murder;
(3) Rape;
(4) Sexual abuse of a minor;
(5) Drug trafficking;
(6) Firearms trafficking;
(7) Theft or burglary for which the penalty imposed is imprisonment for at least one year;
(8) Child pornography;
(9) Prostitution business;
(10) Crime of fraud or deceit or tax evasion if the loss to the victim exceeds $10,000;
(11) Some types of money laundering in excess of $10,000;
(12) Failure to appear for service of sentence;
(13) Crime related to commercial bribery;
(14) Crime relating to obstruction of justice, perjury, or bribery of a witness, where the penalty imposed is one year or more in prison;
(15) Smuggling aliens;
(16) Conviction related to failure to appear before a court on a felony charge that could result in a sentence of two or more years; or
(17) An attempt or conspiracy to commit any of the above.
Other types of criminal convictions also make a person deportable, such as “Controlled Substance Offenses” (except for a single offense for thirty grams or less of marijuana for personal use), “Crimes Involving Moral Turpitude”, certain “Firearms Offenses”, “Domestic Violence Offenses” (including a violation of an order of protection), and “High-Speed Flight”.
A “Crime Involving Moral Turpitude” (CIMT) is a crime 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.” Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006). There are several categories of CIMTs, which include, but are not limited to:
(1) Crimes in which an intent to steal or defraud is an element;
(2) Crimes in which bodily harm is caused or threatened by an intentional or willful act;
(3) Crimes in which serious bodily harm is caused or threatened by a reckless act; and
(4) Sex offenses.
Immigration courts will not generally look to the particular facts of your case to determine whether you have been convicted of a CIMT, but instead to the criminal statute defining the crime and its elements.
If you have been convicted of one CIMT within five years of the date of your admission to the U.S. and the judge could have sentenced you to a prison term of one year or more, you are deportable. INA § 237(a)(2)(A)(i)(I)–(II); 8 U.S.C. § 1227(a)(2)(A)(i)(I)–(II) (2006). If you are convicted of only one CIMT, but more than five years (ten if you are a legal permanent resident) have passed since you were admitted to the U.S., you cannot be deported. If, however, you have been convicted of two CIMTs that do not arise out of a single scheme any time after you were admitted into the U.S., you are deportable. INA § 237(a)(2)(A)(ii); 8 U.S.C. § 1227(a)(2)(A)(ii) (2006).
ADMISSABILITY
Admissibility applies to a non-citizen who is trying to receive a visa or is trying to be granted admission into the United States. You may be considered inadmissible even if you are already in the United States. The criminal grounds for inadmissibility are similar to those for deportability.
Crimes that can make a person inadmissible include “Crimes Involving Moral Turpitude” (CIMT). However, if you have only been convicted of one CIMT, you may qualify for one of the following petty offense exceptions and therefore may not be inadmissible:
(1) Petty offense exception 1: (a) the crime was committed when you were under eighteen (18) years old, (b) you were only convicted of one CIMT, and (c) the crime was committed more than five years before your application for admission. If all three of these conditions apply to you, then you may qualify for the first exception.
(2) Petty offense exception 2: (a) you must have only been convicted of one CIMT and (b) the maximum possible penalty for the crime (the maximum amount of time the judge could have sentenced you to) cannot exceed one year in prison. Also, you must not actually have been sentenced to more than six months in prison.
See INA § 212(a)(2)(A)(ii); 8 U.S.C. § 1182(a)(2)(A)(ii) (2006).
Other crimes that can make a person inadmissible include “Two or More Criminal Convictions” and “Controlled Substance Offenses”. “Two or More Criminal Convictions” means any convictions (regardless of whether the crimes arose from a single scheme and regardless of whether the crimes were CIMTs) with a combined prison sentence of five years or more. INA § 212(a)(2)(B); 8 U.S.C. § 1182(a)(2)(B) (2006). Also, if you are convicted of violating any controlled substance law, you are inadmissible. There is no exception for a single offense for thirty grams or less of marijuana for personal use, as there is under deportability. INA § 212(a)(2)(C); 8 U.S.C. § 1182(a)(2)(C) (2006). A conviction for drug paraphernalia is considered a controlled substance offense. See Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000).
As you can see, immigration consequences from a criminal conviction are very complicated. Please make sure you consult with an attorney about these potential consequences before you go to trial or enter a plea bargain.
If you are a convicted of a criminal offense in Arizona, it is important to know that there may be immigration consequences to your conviction, apart from the punishment you receive from the court. If you are an undocumented immigrant, a visa holder, or a permanent resident, it is important that you understand the potential immigration consequences of a criminal conviction. It is imperative that you speak with an attorney about these immigration consequences.
Here are just some of the ways that a conviction can affect your immigration status:
DEPORTABILITY
Deportability applies to non-citizens who entered the U.S. legally (such as a lawful permanent resident), but are now subject to being expelled (deported). Several types of criminal convictions can make a person deportable, although that person may still have affirmative defenses that can be raised to avoid deportation.
An “Aggravated Felony” is the worst category of crimes for immigration purposes because being convicted of an aggravated felony makes you ineligible for most forms of relief and subjects you to mandatory detention. An aggravated felony is not necessarily the same as a “state felony conviction” and is specifically defined in INA § 101 (a)(43); 8 U.S.C. § 1101(a)(43) (2006). An aggravated felony conviction will make you deportable. Here is a list of most aggravated felonies:
(1) Crimes of violence for which the penalty was at least one year (if physical force was used or most likely could have been used in committing the crime, the crime may be considered a crime of violence and, therefore, an aggravated felony);
(2) Murder;
(3) Rape;
(4) Sexual abuse of a minor;
(5) Drug trafficking;
(6) Firearms trafficking;
(7) Theft or burglary for which the penalty imposed is imprisonment for at least one year;
(8) Child pornography;
(9) Prostitution business;
(10) Crime of fraud or deceit or tax evasion if the loss to the victim exceeds $10,000;
(11) Some types of money laundering in excess of $10,000;
(12) Failure to appear for service of sentence;
(13) Crime related to commercial bribery;
(14) Crime relating to obstruction of justice, perjury, or bribery of a witness, where the penalty imposed is one year or more in prison;
(15) Smuggling aliens;
(16) Conviction related to failure to appear before a court on a felony charge that could result in a sentence of two or more years; or
(17) An attempt or conspiracy to commit any of the above.
Other types of criminal convictions also make a person deportable, such as “Controlled Substance Offenses” (except for a single offense for thirty grams or less of marijuana for personal use), “Crimes Involving Moral Turpitude”, certain “Firearms Offenses”, “Domestic Violence Offenses” (including a violation of an order of protection), and “High-Speed Flight”.
A “Crime Involving Moral Turpitude” (CIMT) is a crime 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.” Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006). There are several categories of CIMTs, which include, but are not limited to:
(1) Crimes in which an intent to steal or defraud is an element;
(2) Crimes in which bodily harm is caused or threatened by an intentional or willful act;
(3) Crimes in which serious bodily harm is caused or threatened by a reckless act; and
(4) Sex offenses.
Immigration courts will not generally look to the particular facts of your case to determine whether you have been convicted of a CIMT, but instead to the criminal statute defining the crime and its elements.
If you have been convicted of one CIMT within five years of the date of your admission to the U.S. and the judge could have sentenced you to a prison term of one year or more, you are deportable. INA § 237(a)(2)(A)(i)(I)–(II); 8 U.S.C. § 1227(a)(2)(A)(i)(I)–(II) (2006). If you are convicted of only one CIMT, but more than five years (ten if you are a legal permanent resident) have passed since you were admitted to the U.S., you cannot be deported. If, however, you have been convicted of two CIMTs that do not arise out of a single scheme any time after you were admitted into the U.S., you are deportable. INA § 237(a)(2)(A)(ii); 8 U.S.C. § 1227(a)(2)(A)(ii) (2006).
ADMISSABILITY
Admissibility applies to a non-citizen who is trying to receive a visa or is trying to be granted admission into the United States. You may be considered inadmissible even if you are already in the United States. The criminal grounds for inadmissibility are similar to those for deportability.
Crimes that can make a person inadmissible include “Crimes Involving Moral Turpitude” (CIMT). However, if you have only been convicted of one CIMT, you may qualify for one of the following petty offense exceptions and therefore may not be inadmissible:
(1) Petty offense exception 1: (a) the crime was committed when you were under eighteen (18) years old, (b) you were only convicted of one CIMT, and (c) the crime was committed more than five years before your application for admission. If all three of these conditions apply to you, then you may qualify for the first exception.
(2) Petty offense exception 2: (a) you must have only been convicted of one CIMT and (b) the maximum possible penalty for the crime (the maximum amount of time the judge could have sentenced you to) cannot exceed one year in prison. Also, you must not actually have been sentenced to more than six months in prison.
See INA § 212(a)(2)(A)(ii); 8 U.S.C. § 1182(a)(2)(A)(ii) (2006).
Other crimes that can make a person inadmissible include “Two or More Criminal Convictions” and “Controlled Substance Offenses”. “Two or More Criminal Convictions” means any convictions (regardless of whether the crimes arose from a single scheme and regardless of whether the crimes were CIMTs) with a combined prison sentence of five years or more. INA § 212(a)(2)(B); 8 U.S.C. § 1182(a)(2)(B) (2006). Also, if you are convicted of violating any controlled substance law, you are inadmissible. There is no exception for a single offense for thirty grams or less of marijuana for personal use, as there is under deportability. INA § 212(a)(2)(C); 8 U.S.C. § 1182(a)(2)(C) (2006). A conviction for drug paraphernalia is considered a controlled substance offense. See Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000).
As you can see, immigration consequences from a criminal conviction are very complicated. Please make sure you consult with an attorney about these potential consequences before you go to trial or enter a plea bargain.
Silva Law Firm, P.C. LEGAL DISCLAIMER: The materials in this web site are not legal advice and your use of these materials does not constitute nor form an attorney/client relationship with the Silva Law Firm, P.C. Please do not send any confidential information to our office without prior authorization. Contact us personally regarding specific advice for your particular case, because there is no substitute for professional legal counsel.
