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Noncitizen Commission of Crimes and the Effect on Admissibility and Removability

The commission of a crime while in the United States (or abroad) can have devastating immigration consequences for a noncitizen's future in this country. Not only can a criminal conviction make a foreign national inadmissible, which can prevent noncitizens from entering the United States or becoming a lawful permanent resident (i.e., receiving green card), but many criminal convictions also can render a noncitizen, including green card holders, removable/deportable if they are in the United States, causing them to be placed in removal/deportation proceedings.

For this reason, it is very important that a noncitizen who has been arrested hire experienced criminal defense and immigration attorneys to work together to achieve the best outcome for the criminal case and to avoid adverse effects on future immigration to the United States or current immigration status.

I.     Crimes and Their Impact on Admission

Inadmissibility is governed by the Immigration and Nationality Act (INA) § 212, which provides several grounds on which a noncitizen is ineligible to receive a visa. These include health-related grounds; the commission or conviction of certain crimes, including trafficking of controlled substances, prostitution and commercialized vice, and money laundering; economic grounds; national security grounds; illegal entry and immigration violations; fraud and misrepresentation; documentation requirements; and miscellaneous grounds, including practicing polygamists, child abductors, and unlawful voters.

     A.  Crimes Involving Moral Turpitude

The ground of inadmissibility most commonly confronted by foreign nationals during the immigration process relates to crimes involving moral turpitude (CIMTs). A noncitizen convicted of, or who admits to having committed, or who admits to committing acts that constitute the essential elements of a CIMT (other than a purely political offense) or an attempt or conspiracy to commit such a crime is inadmissible. See INA § 212(a)(2)(A)(i)(I).

An actual conviction is not required; rather, simply admitting to committing the CIMT may be sufficient for the foreign national to be inadmissible. In addition, certain case resolutions may not be considered "convictions" under criminal law but may still be considered a "conviction" under immigration law. Again, it is extremely important for a noncitizen to retain both a criminal lawyer and an immigration attorney to resolve the criminal case in a way that will not have negative immigration consequences.

CIMTs are not codified by statute but instead are defined by the courts in case law. "Moral turpitude" has been defined in case law as conduct 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." The definition largely depends on the intent involved in committing the criminal act and whether the criminal act is considered morally reprehensible and intrinsically wrong. What makes this area so difficult is that "moral turpitude" and what qualifies as a CIMT often is decided on a case-by-case basis by the immigration judge or immigration officer.

The most common elements of a CIMT are fraud, larceny, and intent to harm persons or things. Thus, crimes that typically include these elements, such as burglary, forgery, and theft, can be categorically characterized as CIMTs. Other offenses are CIMTs because they violate clearly established social norms, such as child molestation. On the other hand, simple assault, simple possession of marijuana, and regulatory or licensing violations generally have been found not to be CIMTs.

Certain aggravating factors may elevate a crime to the level of a CIMT. For example, although simple assault is not a CIMT, simple assault against a spouse or family member is considered a CIMT. Likewise, simple possession of marijuana is not a CIMT, but possession with the intent to distribute is a CIMT. Moreover, simple driving under the influence is not a CIMT, but if there are aggravating circumstances, such as the crime being committed under a suspended license or with a minor child in the vehicle, then it may be a CIMT. (However, simple driving under the influence may result in inadmissibility based on medical grounds.)

This area of immigration law is made more complex because all states have their own sets of criminal and case laws. While the above examples may apply in most states, it is important to examine the actual state criminal statute to determine if a conviction constitutes a CIMT under immigration law. For example, in some states, an assault statute may require proof of specific intent, while in other states it may only require proof of recklessness. Some case law suggests that an assault conviction based on reckless, rather than intentional, conduct – even against a spouse – may not rise to the level of moral turpitude.

     B.  Petty Offense Exception

Conviction of or admitting to a CIMT does not always bar admissibility. If only one crime was committed, it may fall within the "petty offense exception," which provides that the ground of inadmissibility for CIMT shall not apply to a noncitizen if the maximum penalty possible for the crime of which the noncitizen was convicted (or which the noncitizen admits to having committed or of which the acts that the noncitizen admits to having committed constituted the essential elements) did not exceed imprisonment for one year and, if noncitizen was convicted of such crime, he or she was not sentenced to a term of imprisonment in excess of 6 months.

Therefore, many crimes that would otherwise render a noncitizen inadmissible will not be a barrier to entry so long as the maximum possible sentence is 1 year or less and the noncitizen is sentenced to a term of imprisonment of 6 months or less, active or suspended.

II.     Crimes and Their Impact on Removability

Note: Deportation proceedings refer to proceedings commenced prior to April 1, 1997 in which a noncitizen's deportability from the United States is determined, and exclusion proceedings refer to proceedings commenced before April 1, 1997 in which a noncitizen's admissibility to the United States is determined. After the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, deportation and exclusion proceedings were combined into one unified proceeding known as "removal." Currently, removal proceedings refer to the formal proceedings in Immigration Court where a noncitizen's deportability from the United States or inadmissibility to the United States is determined.

     A.  Crimes Involving Moral Turpitude

In addition to being a ground of inadmissibility, CIMTs are also a ground of removability under INA § 237(a). The removability analysis for CIMTs is similar to the inadmissibility analysis, with one major difference: There is no petty offense exception. Instead, the law forgives one CIMT if that crime is committed more than five years after the date of admission. However, noncitizens who commit a CIMT within 5 years of admission face a serious possibility of removal/deportation.

Further distinguishing CIMTs governing removal/deportation from CIMTs governing inadmissibility is that there must be an actual conviction rather than merely an admission. However, a "conviction" is broadly defined as a formal judgment of guilt of the noncitizen entered by a court or, if adjudication of guilt has been withheld, where — (i) a judge or jury has found the noncitizen guilty or the noncitizen has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the noncitizen's liberty to be imposed. Thus, court proceedings in which a defendant enters a guilty plea, no contest, or makes an admission of guilt up front and is ordered by the court to complete probation or some other condition will be treated as a "conviction" for immigration law purposes, even if the plea is later vacated or charges dismissed. Deferred adjudications are treated in similar fashion and will be considered a conviction for immigration purposes. On the other hand, a pre-plea diversion arrangement, in which no plea is entered or admission made but some form of pretrial probation or community service is ordered, will probably not be considered a conviction for immigration purposes, but again, these may defer depending on the jurisdiction, and the facts of the case should be properly analyzed by a knowledgeable immigration lawyer.

     B.  Multiple Criminal Convictions

Although it may not have an immediate impact on a noncitizen's immigration status, it should be noted that INA § 237(a)(2)(A)(ii) makes deportable any noncitizen who at any time after entering the United States is convicted of two or more CIMTs not arising from the same scheme of criminal misconduct, regardless of the sentence imposed.

For this reason, it is not necessarily prudent to plead guilty to what may be a CIMT, even if more than 5 years has passed since admission. If an individual pleads guilty to a CIMT that he may have been able to successfully defend, he will have potentially wasted his "free pass" and, in the event that he is subsequently convicted of another CIMT, he will be removable/deportable.

     C.  Aggravated Felonies

Under INA § 237, aggravated felonies are also a ground of inadmissibility. INA § 101(a)(43) defines the term "aggravated felony" by enumerating several offenses that would qualify. Some of the most common aggravated felonies include murder, rape, drug trafficking, crimes of violence for which the term of imprisonment is at least one year, and theft offenses including receipt of stolen property where the term of imprisonment is at least one year.

Like CIMTs, it can be difficult to categorically classify crimes as being "aggravated felonies." Because each state has its own unique set of statutes, prohibiting certain conduct and establishing particular punishments, the analysis is much more law-based than fact-based. As a result, the label "aggravated felony" can be misleading. For example, because a suspended sentence is considered a term of imprisonment, a one-year suspended sentence for misdemeanor simple assault can be an aggravated felony for immigration purposes.

III.     Summary

The interface of criminal law and immigration law can be a very difficult area for many criminal defense attorneys. Defense attorneys must be especially cautious to appropriately advise clients in light of the 2010 case Padilla v. Kentucky, 559 U.S. 356 (2010), in which the Supreme Court held that criminal defense attorneys are constitutionally obligated to advise their noncitizen clients of the deportation consequences of a conviction. Failing to adequately apprise one's client of the risks of entering a criminal plea may constitute ineffective assistance of counsel. Thus, it is advisable for defense attorneys with little or no immigration experience to work together with immigration attorneys to obtain the best resolution of their noncitizens clients' criminal matters.

In general, an immigration judge may only consider the "reviewable record of conviction." This includes the criminal charge, the plea agreement, and any plea or sentencing colloquy, but does not include police reports, the pre-sentence investigation, or the testimony of witnesses. Therefore, the plea is often more important than the criminal conduct itself. This underscores the importance of savvy legal assistance. Even if you have committed a crime that is generally considered a CIMT or an aggravated felony, your criminal and immigration attorneys may be able to work together to craft a plea that an Immigration Judge will not view as a deportable or inadmissible offense.

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