Criminal Grounds of Inadmissibility
Criminal convictions or behavior that is considered criminal in nature are some of the most common reasons intending immigrants are found inadmissible to the United States. The rules regarding criminal grounds for inadmissibility can be confusing and, in some cases, can lead to results that come as a surprise to an unwitting applicant for an immigrant visa. For these reasons, it is extremely important for intending immigrants with criminal records, previous arrests or other involvement with law enforcement officials understand how their application for a visa may be effected and prepare accordingly. It is similarly important for any lawful permanent resident or intending immigrant to understand the effect a criminal conviction may have on a future immigrant visa application at the outset of any criminal proceedings. The following article discusses each of the most common grounds of criminal inadmissibility in detail and identifies the other less common grounds of criminal inadmissibility
Crimes of Moral Turpitude & Controlled Substance Crimes
The Immigration and Nationality Act (“INA”) provides that any alien who is convicted of, admits committing or admits committing acts which “constitute the essential elements” of a crime involving “moral turpitude” or a violation of any law relating to a controlled substance are inadmissible. INA §212(a)(2)(a). There is no statutory or accepted definition for a crime involving moral turpitude but there are some generally accepted guidelines:
- Crimes that involve fraud or theft are included
- Crimes of violence that require intent are included
- Convictions for simple DUI are not included but aggravated DUIs such as those which involve personal injury may be included
- Simple battery is not included but domestic violence likely is
There is one exception to the CMT grounds of inadmissibility which exclude a crime:
1. Where the alien was under 18 at the time the offense was committed and the crime was committed five years or more before the date the visa application is made. If the alien was incarcerated, the five year period begins when the period of incarceration ends; or
2. Where the maximum penalty for the crime is not more than one year and the alien was not sentenced to a period of incarceration exceeding six months. This includes any period of incarceration in the judgment of sentence even if a portion of the period of incarceration is suspended. INA §101(A)(48)(B). This provision can be used by criminal law practitioners to fashion a sentencing agreement or obtain a reduction in sentence that would enable their client's conviction to fall within this exception. Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005.
These exceptions, set forth in INA §212(a)(2)(A)(ii) only apply if the alien only committed one CMT.
It is important to note that this exception is not required and does not apply to an alien who acts which may have constituted a CMT where adjudicated under juvenile proceedings or proceedings that are similar to U.S. Federal juvenile proceedings before the alien reached age fifteen or if committed between the ages of 15 and 18 unless the alien was tried and convicted as an adult for a felony involving violence. 22 CFR §40.21(a)(2).
The CMT exceptions DO NOT apply to controlled substance violations. The only exception applicable to the controlled substance law violations is for convictions of possession of less than 30 grams of marijuana. There is no waiver available.
It is also important to note that a finding of inadmissibility under INA §212(a)(2)(a) does not require that the applicant have been convicted. The only requirement is an admission by the alien of either having committed the crime or admitted to the essential elements of the crime. For the purposes of U.S. Immigration law the admission is valid if: 1.) The act is considered criminal under the law of the place where the act was alleged to have been committed; 2.) The alien was advised of the essential elements of the crime; 3.) The alien clearly admitted conduct constituting the essential elements of the crime; and 4.) The admission was freely and voluntarily made. Matter of K, 7 I&N Dec. 594 (BIA 1957).
Applicants for immigrant visas who have been convicted of two or more offenses where the aggregate sentence was five years or more are inadmissible. INA §212(a)(2)(B). This rule does not apply to convictions which are considered “purely political” offenses but the crimes to not have to be crimes of moral turpitude. This provision applies even if all of the convictions arose out of incident and a single trial.
Controlled Substance Traffickers
Any “illicit trafficker” of any controlled substance is inadmissible. INA §212(a)(2)(C). This provision does not require a conviction of any drug trafficking offense and also applies to those who aid, abet or conspire with illicit drug traffickers. The spouse and children of an illicit trafficker who financially benefit from the drug trafficking are also inadmissible until five years from the date they last received any financial benefit.
Unlike controlled substance crimes and CMTs, most other criminal inadmissibility provisions only apply if there has been a “conviction.” A conviction is defined in INA §101(A)(48)(A) as a formal judgment of guilt entered by a court or if adjudication of guilt has been withheld where: 1.) A judge or jury has found the alien guilty, the alien entered a plea of guilty or nolo contendre, or the alien has admitted sufficient facts to warrant a finding of guilt; or 2.) The judge has ordered some form of punishment, penalty or restraint on the alien's liberty. This includes any reference in a court order to a term of imprisonment regardless of whether imposition or execution of the sentence was suspended. INA §101(A)(48)(B). A conviction should not be considered final until any direct appeal has been either waived or exhausted.
Effect of Expungements
An expungement or other means of vacating a prior criminal conviction often will not relieve the alien of the immigration consequences of that conviction. This general rule does not apply to situations where a criminal conviction is vacated or set aside by an appellate court on constitutional or other legal grounds. However, aliens who receive relief under the Federal First Offender Act are not considered to have been “convicted” for the purposes of immigration.
Less Commonly Used Grounds of Inadmissibility
There are several other classes of aliens who are inadmissible on criminal related grounds. These aliens include:
- Those who have engaged in prostitution or other commercialized vices. INA §212(a)(2)(D).
- Aliens who sought immunity from serious crimes in the U.S. and later departed the U.S. without subsequently submitted to the full jurisdiction of the court in the U.S. related to the offense. INA §212(a)(2)(E).
- Foreign government officials who were responsible for serious violations of religious freedom. INA §212(a)(2)(G).
- Human traffickers. INA §212(a)(2)(H).
- Money launders. INA §212(a)(2)(I).
If you plan to apply for an immigrant visa and you have a criminal record please contact us to discuss your admissibility and any applicable waivers.