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Immigration Consequences of Crimes

An immigrant can be removed (deported) and excluded from coming into the United States if he is convicted of a “crime involving moral turpitude” (CIMT), certain drug offenses, or “aggravated felony.” CIMT are not specifically defined. However, the general idea conveyed in the immigration law is that these crimes include fraud, larceny and harm to persons or property. Whether driving under the influence will be considered as a CIMT depends on the circumstances.

Crimes against the person involve moral turpitude when criminal intent is an element of the offense. Such criminal intent may be inferred from the presence of unjustified violence or the use of a dangerous weapon. Often, lesser related offenses or lesser degrees of the same offenses might not involve moral turpitude absent criminal intent, unjustified violence, or the use of a dangerous weapon as elements of the offense.

Examples of crimes against the person found to involve moral turpitude (CIMT):

  • Murder or Intentional Homicide.
  • Voluntary Manslaughter.
  • Manslaughter (depends on degree).
  • Homicide by Reckless Conduct.
  • Involuntary Manslaughter.
  • Attempted Murder.
  • Kidnapping
  • False  Imprisonment.
  • Mayhem.
  • Assault with Intent to Commit Murder.
  • Assault with Intent to Commit Abortion.
  • Attempted Assault, Second Degree (with Intent to Commit Carnal Abuse and Rape).
  • Indecent Assault (falls short of rape).
  • Atrocious Assault and Battery.
  • Carrying a Concealed and Deadly Weapon with Intent to Use Against the Person of Another
  • Assault in the Second Degree (with a weapon or other instrument likely to produce grievous bodily harm).
  • Assault with a Deadly and Dangerous Weapon.
  • Assault (with a weapon likely to produce bodily harm).
  • Rape.
  • Interfering with a Law Enforcement Officer with use of deadly force.
  • Attempting to Obstruct or Impede the Progress of Justice.
  • Aggravated Assault Against a Peace Officer.
  • Aggravated  Battery.
  • Stalking (aggravated).
  • Driving while intoxicated
  • Terrorism.

Crimes against the person not involving moral turpitude:

  • Manslaughter.
  • Attempted Suicide.
  • Carrying a Concealed Weapon (no intent to use).
  • Possession of an Unregistered Sawed-off Shotgun.
  • Assault and Battery.
  • Simple Assault.
  • Assault with an Unknown Weapon.
  • Riot.
  • Libel.
  • Mailing an Obscene Letter.
  • Kidnapping.

The immigration law contains the petty offense exception. If the penalty for the crime committed is not more less than 365 days and the person was sentenced to less than 6 months, than the person is not deportable for a crime involving moral turpitude.

The conviction of a crime involving moral turpitude will result in being placed in removal proceedings if the crime was committed within 5 years after admission to the United States or if two or more crimes of moral turpitude, not arising out of a single scheme of criminal conduct was committed at any time after admissions.

Part One: Deportation Grounds

Not only convictions of crimes involving moral turpitude will result in deportation. Many other crimes are listed in Section 237 (a) (2) of the Immigration and Nationality Act as grounds for deportation.

Section 237 (a) (2) states the following crimes are ground for deportation:

(A) General crimes.

(i) Crimes of moral turpitude.-Any alien who-

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) ) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed.

is deportable

(ii) Multiple criminal convictions.-Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

(iii) Aggravated felony.-Any alien who is convicted of an aggravated felony at any time after admission is deportable.

(iv) High Speed Flight.-Any alien who is convicted of a violation of section 758 of title 18, United States Code, (relating to high speed flight from an immigration checkpoint) is deportable.

(v)  failure to register as a sex offender- Any alien who is convicted under section 2250 of title 18, United States Code, is deportable.

(vi) Waiver authorized.-Clauses (i), (ii), (iii), and (iv) shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States.

(B) Controlled substances.-

(i) Conviction.-Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.

(ii) Drug abusers and addicts.-Any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.

(C) Certain firearm offenses.-Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable.

(D) Miscellaneous crimes.-Any alien who at any time has been convicted (the judgment on such conviction becoming final) of, or has been so convicted of a conspiracy or attempt to violate-

(i) any offense under chapter 37 (relating to espionage), chapter 105 (relating to sabotage), or chapter 115 (relating to treason and sedition) of title 18, United States Code, for which a term of imprisonment of five or more years may be imposed;

(ii) any offense under section 871 or 960 of title 18, United States Code;

(iii) a violation of any provision of the Military Selective Service Act (50 U.S.C. App. 451 et seq.) or the Trading With the Enemy Act (50 U.S.C. App. 1 et seq.); or

(iv) a violation of section 215 or 278 of this Act, is deportable.

(E) Crimes of Domestic violence, stalking, or violation of protection order, crimes against children and

(i) Domestic violence, stalking, and child abuse.-Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

(ii) Violators of protection orders.-Any alien who at any time after entry is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued fo r the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.

(F) Trafficking- Any alien described in section 212(a)(2)(H) is deportable.

Part two: Exclusion

The concept of excludability is central to the determination whether a person can apply for a legal permanent residence in the United States or for non immigrant visa such as visitor’s visa.

A large portion of cases involving excludability have to do with criminal convictions of the applicant. The list of crimes is similar to the one found in section 237 (the deportation section) but it is not identical.  Some of the differences are significant.

Section 212 (2) (2)of the Immigration and Nationality Act  describes the crimes which make a person excludable:

(A) Conviction of certain crimes.-

(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement 2 were 5 years or more is inadmissible.

(C) controlled substance traffickers- Any alien who the consular officer or the Attorney General knows or has reason to believe—

(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or

(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible.

(D) Prostitution and commercialized vice.-Any alien who-

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10- year period) received, in whole or in part, the proceeds of prostitution, or

(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible.

(E) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution.-Any alien-

(i) who has committed in the United States at any time a serious criminal offense (as defined in section 101(h)),

(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,

(iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and

(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense, is inadmissible.

(F) Waiver authorized.-For provision authorizing waiver of certain subparagraphs of this paragraph, see subsection (h).

(G) foreign government officials who have committed particularly severe violations of religious freedom- Any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom, as defined in section 3 of the International Religious Freedom Act of 1998 (22 U.S.C. 6402), is inadmissible.

(H) significant traffickers in persons-

(i) in general- Any alien who commits or conspires to commit human trafficking offenses in the United States or outside the United States, 42 or who the consular officer, the Secretary of Homeland Security, the Secretary of State, 42 or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, as defined in the section 103 of such Act, is inadmissible.

(ii) beneficiaries of trafficking- Except as provided in clause (iii), any alien who the consular officer or the Attorney General knows or has reason to believe is the spouse, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible.

(iii) exception for certain sons and daughters- Clause (ii) shall not apply to a son or daughter who was a child at the time he or she received the benefit described in such clause.

(I) money laundering- Any alien–

(i) who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is engaging, or seeks to enter the United States to engage, in an offense which is described in section 1956 or 1957 of title 18, United States Code (relating to laundering of monetary instruments); or

(ii) who a consular officer or the Attorney General knows is, or has been, a knowing aider, abettor, assister, conspirator, or collude with others in an offense which is described in such section; is inadmissible.

There is a waiver available to waive certain exclusion  grounds. This waiver is described in Section 212 (h). This waiver is highly technical and you should consult an attorney to assist you in apposing for the waiver. If you were convicted of an aggravated felony (see separate discussion), your chances of not being deported are slim.