Law Offices of Andre S. Boghosian

Criminal Charges

Criminal Immigration: The Consequences of Criminal Convictions on Non-US Citizens

The Immigration and Nationality act can and does create severe consequences for non-US citizens who have criminal convictions. An “alien” is defined as “any person, not a citizen or national of theUnited States”.

Criminal Aliens

Three categories of aliens:

• Lawful permanent residents (aka green card holders)
• Non-immigrants, legally in theUSin a temporary capacity (visitors, students, non-immigrant workers)
• Illegal aliens: individuals who entered the country illegally or who entered the country legally and have remained beyond their authorized stay

Definition of Criminal Conviction for Immigration Purposes

The USCIS defines a conviction as a formal judgment of guilt. If a judgment is withheld, where there is some type of plea, and/or admission of facts warranting guilt and the imposition of some type of penalty.

Any type of criminal adjudication, such as Holmes Youthful Training Act, rehabilitative drug dispositions like 7211, domestic violence please under advisement, and any other type of criminal plea where a judgment of conviction is withheld, is considered to be a conviction for immigration purposes, and can be used by the USCIS as grounds for deportation.

However, there is an exception to this rule, involving 17-year-old persons who receive Youthful Training Status, as these crimes have been equated to being the equivalent of a federal juvenile delinquent status, and as such, may not necessarily be convictions for immigration purposes. Specifically, the Board of Immigration Appeals in the case of In Re: Miguel Devision Charles ruled that if a state youthful status conviction is comparable to the Federal Juvenile Delinquency Act (FJDA), then the alien was not convinced of a crime and is not subject to deportation as the FJDA applies to individuals under 18 years of age. Only those aliens 17 years of age and under would be protected.

Deportable vs. Inadmissible Crimes

Under the INA, criminal convictions may make an alien ineligible for admission into the United States. Specifically, convictions that are covered under this section apply to aliens who are not permanent residents, such as non-immigrant aliens, illegal aliens as noted above or individuals outside the country. These grounds, as covered in the statute will make it difficult, if not impossible, for the aliens noted above to obtain permanent residency in the United States.

Criminal conviction can make aliens deportable or inadmissible. Deportable aliens are those individuals who the government desires to remove from the US. Deportation, now referred to as removal, involves the act of placing the alien in proceeding before an immigration judge. Inadmissible aliens are aliens who are attempting to obtain entry into the United Statesor aliens who are in theUnited States and are seeking permanent resident status.

It is not unusual, however, to see an alien who has been admitted in some sort of non-immigrant category, or illegal aliens, to be placed in deportation/removal proceedings.

These aliens are both inadmissible as well as deportable. There are, however, various differences between these categories. Consideration by criminal practitioners in resolving their criminal cases can affect the future rights of these aliens. Specifically, crimes that subject an alien to deportation may not cause those aliens to be inadmissible.

A prime example of these differences involves the treatment of domestic violence convictions. Domestic violence is a deportable offense.  However, it is not an offense that makes an individual ineligible for admission into the United States. In other words a person convicted of domestic violence might be deportable or removable from theUnited States. However, it would be possible to be readmitted to the United Statesif one is otherwise eligible.

An example of this is a permanent resident alien married to a US citizen. If the alien is not entitled to relief from deportation/removal, the US citizen can reapply to have the alien admitted as a permanent resident.

The two categories of crimes listed above provide for a variety of crimes that can make an alien inadmissible and/or deportable from theUnited States. While the groups are not identical, there are some similarities. The crimes listed below are the primary crimes that are used by USCIS and affect the rights of aliens.

Moral Turpitude Crimes

Crimes involving moral turpitude where the penalty exceeds one year or more can make an alien deportable or inadmissible. More turpitude, under immigration law, has been defined by case law and is extremely broad.

Crimes involving moral turpitude:

• Frauds
• Thefts
• Burglaries
• Robberies
• Murder
• Manslaughter
• Income tax evasion
• Drunk driving
• Assaults with weapons
• Domestic violence
• Conspiracy related crimes
• Drug trafficking