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What are the effects of crimes on immigrant aliens?
All noncitizens of the United States, including lawful permanent residents, are subject to immigration consequences if they are found to have violated the immigration laws. Permanent residents, like all other aliens, may be removed from the United States as the result of such violations. If they leave the United States for more than a brief period and seek to be readmitted, they may be denied admission and excluded.
An alien's eligibility for permanent resident status may be affected adversely by the commission of crimes, and he may be found inadmissible and excludable as a result. If he or she is in the United States he or she may also be subject to deportation. Aliens who are in the process of applying for and obtaining permanent residence are not yet permanent residents. They will be affected in terms of their present as well as their anticipated status. The impact of such criminal convictions also affects the eligibility of applicants for almost all immigrant and nonimmigrant categories.
A nonimmigrant convicted of or admitting to a crime may be charged with violation of status, or be subject to deportation on criminal grounds, or both. A nonimmigrant also may be found inadmissible and denied a visa, or face future exclusion, based upon a prior conviction or the admission of a crime. An applicant for political asylum or refugee status may be denied that status on account of having committed a "particularly serious crime," because it has been determined that he is a danger to the safety of the community, or to national security. He or she may be barred from even applying for asylum because he or she has been found to be an aggravated felon.
Categories of criminal activity incurring immigration consequences
Grounds upon which an alien may be removed, excluded, deported, or denied immigration benefits are contained in two extremely broad sections of the law. 8 U.S.C.A. § 1182(a)(1) to (9) cover bases for inadmissibility and exclusion. 8 U.S.C.A. § 1227(a)(1) to (5) cover grounds of deportability. These sections are also used as elements of other standards utilized to determine an alien's eligibility for relief or benefits under the Act.
More than twenty-five separate sections of the Immigration & Nationality Act ("INA") specifically proscribe conduct either made criminal by statute or associated with crime. Some examples of criminal or undesirable conduct which will result in immigration consequences includes controlled substance offenses, polygamy, prostitution, vagrancy, draft resistance, weapons offenses, smuggling and harboring aliens, and illegal reentry into the United States.
The broadest category of criminal activity to which immigration sanctions attach is that of convictions considered to be for "crimes of moral turpitude." In construing consequences which flow from crimes of moral turpitude, there are several critical issues to be determined apart from the character of the crime. These include the nature of the sentencing procedure and the length and type of sentence to confinement or punishment imposed. Another significant consideration affecting deportability where two crimes of moral turpitude are involved is the concept of a "single scheme" of criminal conduct.
The worst category of deportable convictions is under the aggravated felony category. These convictions trigger the institution of removal proceedings with little hope of relief. Even a long-term permanent resident who is convicted of an aggravated felony can be disqualified from almost all immigration benefits and subjected to mandatory detention without the opportunity for bail. Often times the alien will be permanently deported with no future relief.
In the last ten years Congress has expanded the definition to include many dozens of serious and even minor offenses, including state misdemeanors. For example, conviction of a misdemeanor theft offense with a one-year sentence, even if execution is suspended, (like a deferred adjudication sentence) has been held to be an aggravated felony.
Some relief may be available through different post-conviction options such as state and federal pardons and vacation of judgments which render a criminal conviction void. Also, certain ameliorative provisions such as waivers, or judicial recommendations against deportation may provide relief in terms of immigration consequences.
Convictions for Domestic Violence, Stalking, Child Abuse, Neglect or Abandonment
In 1996, Congress created a new, very broad ground of removal based on a conviction of a state or federal crime of domestic violence, stalking, child abuse, neglect or abandonment. An alien is also removable on conduct-based grounds with no conviction if a civil or criminal court has found him or her to have violated a domestic violence protective order.
Relief is available if the spouse of the alien applies for adjustment of status to permanent resident, even if already a permanent resident, based on the marriage (available as a defense to removal). In other contexts, such as firearms, which trigger removal but not inadmissibility, the BIA has permitted adjustment of status which, if granted, constitutes a defense against removal.
In order for the alien to be subject to removal with respect to criminal convictions, the conviction: (1) must have occurred after admission; (2) must be for a "crime of domestic violence", a crime of stalking, or a crime of child abuse, child neglect, or child abandonment; and (3) must be for a crime committed against a "protected person".
The domestic-violence ground of deportation requires that the triggering conviction must occur "after admission." A conviction occurring before admission therefore does not trigger removal. An undocumented immigrant can therefore apply for adjustment of status so long as the domestic-violence conviction triggers only deportation, but not inadmissibility. Since many domestic-violence convictions will constitute crimes involving moral turpitude, it may be necessary to obtain a waiver of inadmissibility before the adjustment process is possible.
A domestic-violence conviction that triggers removal, but not inadmissibility, will not stop the accrual of time for meeting the continuous residence or physical presence for purposes of qualifying for cancellation of removal (another form of relief from deportation). However, an alien who is inadmissible as the result of a domestic violence conviction is not eligible for cancellation of removal.
Also, some domestic violence offenses constitute crimes of moral turpitude, or aggravated felonies. If the domestic violence conviction is not an aggravated felony, the alien is eligible to apply for cancellation of removal and is also not subject to mandatory detention during deportation proceedings.
A domestic violence conviction, however, may not automatically constitute a crime involving moral turpitude. Simple battery is not. Battery on a spouse is held to be a crime of moral turpitude, perhaps because a special relationship of trust exists. That rationale may not apply to all cases that fall within the wider domestic violence statute, which may apply not only to spouses, but also to a former spouse, cohabitant, former cohabitant, or the mother or father of his or her child.
Controlled Substance Convictions
Removing alien drug offenders has been one of the primary objectives of the United States since the inception of immigration laws. An alien can even be excluded from the United States at any time, even after he or she arrives from a trip abroad, regardless of the fact that the government may have waited years to prosecute an alien under this provision of the immigration laws.
An alien faces removal under the grounds of deportability or inadmissibility if she or he has a controlled substance conviction. To make things worse, in 1996, Congress limited the availability of one of the forms of relief available to forgive criminal conduct under INA §212(c). However the U.S. Supreme Court found that guilty pleas entered before the effective date of the change in the law under the AEDPA Act, (which was April 24, 1996) cannot be applied retroactively and if a defendant was eligible for the waiver at the time of the guilty plea, the waiver would be still be available. All an alien defendant needs to establish is that he or she was eligible for § 212(c) relief at the time of the plea agreement or guilty plea.
Note: Anomaly - An amendment to the law specifically made pardons available to aggravated felons, while historically the law explicitly precluded controlled substances offenses from relief from deportation.
Convictions for Visa Fraud and False Statements
Visa fraud is a felony punishable by a maximum sentence of five years. A broad range of conduct is punishable criminally, including possessing blank permits or paper used to print entry documents; selling visas; selling entry documents; and assuming a false identity to enter the United States. Although a conviction under this provision does not necessarily involve moral turpitude, such a conviction is a deportable offense under a distinct deportation ground. In some cases the fraud or falsehood impacts only the administrative process and in other instances there may have been an actual prosecution and conviction. An alien who engages in such fraud or misrepresentation is vulnerable to potential immigration consequences, whether or not there has been a final conviction. Offenses which do not necessarily require a conviction to incur immigration sanctions include a valid admission of having committed perjury, a material and wilful misrepresentation, and/or other fraudulent activity.
The Immigration Reform and Control Act of 1986 ("IRCA") and the Marriage Fraud Amendments of 1986, together introduced several additional immigration sanctions, as well as civil and criminal penalties for fraud related violations. IRCA penalizes the use of false documents and false statements made for the purpose of satisfying the employment verification system initiated as part of the employer sanctions provisions. It also created the Immigration Marriage Fraud Amendments ("IMFA") which added a separate provision under which any person who knowingly enters into a marriage for the purpose of evading any of the immigration laws will be guilty of a felony. IMFA also imposed conditions on the availability of civil immigration benefits based upon marriage, and expanded the applicability of inadmissibility and deportability for misrepresentations.
A person may not face removal for every violation of related to fraud and misuse of visas, permits and other entry documents. The statute makes deportable a person convicted "of a violation of, or an attempt or a conspiracy to violate the same. Only those convictions involving one of the specified purposes (e.g., misuse of visas or permits) constitute a deportable offense. The government has the burden of establishing deportability by clear and convincing evidence. As a result, absent evidence in the record that the conviction involved "fraud or misuse of visas," the government can not prove it's case. In addition, a person who engages in fraud may be denied political asylum as a matter of discretion, or be deemed unable to satisfy the standard of good moral character required for naturalization or other immigration benefits. In certain instances, an alien can ameliorate these consequences. Under other circumstances, however, the damage to an alien's eligibility for benefits under the immigration law could be permanent.
Convictions for Smuggling, Transporting, or Harboring; Illegal Entry
The act of assisting aliens to enter the United States illegally and avoid detection by immigration authorities constitutes conduct in direct contravention of existing immigration laws. Similarly, an alien's illegal entry is itself a violation of the law. In the government's view, few violations threaten to undermine Service enforcement of the legislative policy of controlled and selective admission to the United States more than smuggling offenses.
An alien may receive a conviction for smuggling or fall within the ground of deportability without ever leaving the country. The deportation ground applies only if the smuggling activity took place within five years of an entry. Accordingly, an alien who engaged in acts of smuggling without leaving the country would not be deportable as a smuggler if his or her last entry was not within five years of the acts constituting smuggling. If the Government charges a lawful resident with smuggling within five years of entry the alleged entry must have been a meaningful departure. If the entry alleged was brief, casual, and innocent, then it is not considered an entry and it is not a deportable offense under the law.
Seizure and Forfeiture of Property:
Furthermore, the INA § 1324(b) provides for the seizure and forfeiture of vehicle or conveyance used in the violation of the provisions of § 1324(a). Vehicle seizure (with or without a warrant), unlike a criminal conviction under these provisions, requires only probable cause, that a crime involving the vehicle has been committed. Probable cause is defined as "reasonable ground for belief of guilt, supported by less than prima facie proof, but more than mere suspicion." An individual whose vehicle was seized and allegedly was used in the unlawful smuggling or transporting of noncitizens may file a petition seeking mitigation or remission in lieu of forfeiture. However, neither a petition for mitigation (based upon a seizure premised upon "probable cause"), nor a resulting order of forfeiture constitute a finding of "guilty" or an admission of the elements necessary to establish a criminal violation.
Consequences of Criminal Activity for nonimmigrant aliens
Nonimmigrants, like all other aliens, are subject to all of the provisions of the Act, including those sections which specifically sanction aliens who have been convicted of or are involved in proscribed criminal activity. However, nonimmigrant aliens are required to comply with the terms of their admission in order to maintain their status. The government has the authority to initiate removal proceedings against a nonimmigrant who fails to comply with the terms of her or his visa. A nonimmigrant who commits certain criminal activity may be deported under 8 U.S.C.A. § 1227(a)(1)(C). Nevertheless, the effect of a nonimmigrant alien's criminal activity should always be adjudicated in terms of its impact on the purpose inherent in the alien's nonimmigrant status.
What is an Aggravated Felony?
In the Anti-Drug Abuse Act of 1988, Congress created a new category of criminal offenses, known as aggravated felonies, constituting a separate basis for deportability under the Act. The 1988 category of aggravated felonies included murder, drug trafficking crimes, illicit trafficking in any firearms or destructive devices, or any attempt or conspiracy to commit any such act committed within the United States. The definition of aggravated felony further expanded by four additional revisions to the INA. Presently, convictions that are not technically felonies and that are not commonly considered serious offenses may nevertheless be defined as aggravated felonies for immigration or criminal sentencing enhancement purposes.
Aggravated felonies render an alien deportable, disqualify the alien from most waivers and forms of relief from removal, and result in greatly reduced procedural rights in detention and removal proceedings. In the criminal context, with respect to federal illegal reentry prosecutions, a prior conviction for an aggravated felony conviction will result in substantially increased sentence enhancements.
In light of the severe penalties connected to an aggravated felony conviction, an alien should make every effort to avoid a conviction for an aggravated felony. Whether in negotiating a plea, or in the postconviction phase. In order to trigger removal, the aggravated felony conviction must occur after "admission." An adjustment of status to lawful permanent resident constitutes an "admission" for this purpose.
Note: An Anomaly in the law - An amendment to the law specifically made pardons available to aggravated felons, where previously the law explicitly precluded controlled substances offenses from relief from deportation.
Criminal Consequences of Weapons Violations
The Anti-Drug Abuse Act of 1988 expanded the ground of deportability to cover any firearm or destructive device as defined in 21 U.S.C.A. § 921, or any revolver. Amendments made by the Immigration Act of 1990 further expanded the weapons convictions which will incur deportability. An alien who at any time after entry is convicted under any law of "purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying in violation of any law, any weapon, part or accessory which is a firearm or destructive device is deportable."
The definition of "destructive device" includes "any type of weapon … which will … expel a projectile" and therefore includes a rifle, except "a rifle which the owner intends to use solely for sporting, recreational or cultural purposes." The Courts have held that the "cultural" exception can apply to avoid deportability for use of a rifle. Interestingly, the court also found that the general prohibition against looking behind the record of conviction did not apply when the court was considering an exception favoring the defendant, i.e., "cultural" purpose since the circumstances of the crime were uncontested and such a "peek" behind the charging documents would not incite a "trial within a trial."
