The criminal justice system separates crimes by violations, misdemeanors, and felonies with felonies being the most serious. This separation is not as clear when criminal law intersects with immigration. For instance, a person convicted of a misdemeanor in state court may find that conviction is considered an “aggravated felony” for immigration purposes. Non-US Citizens who have been convicted of an “aggravated felony” are deported and face a ban on reentry. Additionally, they are prohibited from receiving most forms of relief that would spare them from deportation, including asylum. Despite the serious-sounding name, “aggravated felonies” include many nonviolent and seemingly minor offenses.

Even minor crimes, that are not considered aggravated felonies, such as shoplifting, can result in deportation.

The intersection between immigration and criminal law is one of the most complex and technical areas of law. Far too often, immigration clients seek immigration assistance when it is too late. Every immigration attorney has heard: “But my defense attorney said…” Unfortunately, most defense attorneys are not aware of the immigration consequences that come with arrests, pleas, and convictions. For instance, many states offer a dismissal of a conviction if certain conditions are meant. This sounds like a good deal, from a criminal standpoint, so the criminal defense attorney advises her client to “accept the deal.” However, for immigration purposes, a conviction is a conviction and most subsequent retractions are irrelevant.

Immigration attorneys also frequently hear; “But my record was expunged.” This may work well for other areas such as when applying for a job. However, it only serves to frustrate the immigration process. For immigration purposes, an expungement or “sealing of the records” is not helpful. The Board of Immigration Appeals (BIA) has held that a state court action to “expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” has no effect on removing the underlying conviction for immigration purposes.^{[see link]}

Therefore, the conviction(s) still must be reported; can still cause deportation or an inability to immigrate or naturalize and certified records still must be submitted to immigration officials. When a criminal matter has been expunged, it can be difficult to impossible for the client to obtain the required records. This leaves the client with having to file a motion to unseal the records in order to obtain a copy. This wastes both the client’s time and money.

It is also imperative to realize what a conviction means in the context of immigration law.  A “conviction” for immigration purposes means a formal judgment of guilt entered by the court.

A “conviction” for immigration purposes means a formal judgment of guilt entered by the court. A conviction for immigration purposes also exists in cases where the adjudication of guilt is withheld if the following conditions are met:

• A judge or jury has found the person guilty or the person entered a plea of guilty or nolo contendere^{[see link]}or has admitted sufficient facts to warrant a finding of guilt; and
• The judge has ordered some form of punishment, penalty, or imposed a restraint on the person’s liberty.^{[see link]}

It is not always clear if the outcome of the arrest resulted in a conviction. Various states have provisions for diminishing the effects of a conviction. In some states, adjudication may be deferred upon a finding or confession of guilt. Some states have a pretrial diversion program whereby the case is removed from the normal criminal proceedings. This way the person may enter into a counseling or treatment program and potentially avoid criminal prosecution. 

In cases where adjudication is deferred, the original finding or confession of guilt and imposition of punishment is sufficient to establish a conviction for immigration purposes because both conditions establishing a conviction are met. If the court does not impose some form of punishment, then it is not considered a conviction even with a finding or confession of guilt. A decision or ruling of nolle prosequi^{[see link]} does not meet the definition of conviction.

Therefore, even if there is no criminal “conviction,” there may be an immigration “conviction.” Whether you are a Non-US Citizen or a defense attorney contemplating advising your client to accept a plea, it is important to contact an immigration attorney before making any decisions.

We have briefly discussed Aggravated Felonies but the most common convictions that we see, with immigration consequences, are Crimes Involving Moral Turpitude (CIMTs). A Crime Involving Moral Turpitude (“CIMT”) has been vaguely defined as a depraved or immoral act, or a violation of the basic duties owed to fellow man, or recently as a “reprehensible act” with a men’s rea of at least recklessness. Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008). Confused? Crimes of moral turpitude are an extremely complicated area of immigration law because there is no clear definition and no setlist covering every crime in every state. Traditionally a CIMT involves intent to commit fraud, commit theft with intent to permanently deprive the owner, or inflict great bodily harm, as well as some reckless or malicious offenses and some offenses with lewd intent.

We would expect assault to be a CIMT. However, assault crimes may or may not be CIMTs. Simple assault is generally not considered to be a Crime Involving Moral Turpitude. However, writing a check while hoping that the funds will be there before the check clears could be a CIMT. Each crime must be thoroughly researched in order to know if it qualifies as a CIMT.

A conviction for two or more crimes involving moral turpitude at any time after entry will render a Non-US Citizen deportable unless the two offenses arising out of a single scheme.

A single conviction of a CIMT can make a Non-US Citizen deportable if (1) the person committed the offense within five years of entry to the United States and; (2) the offense carries a maximum possible sentence of one year or more.

Purely Political Offense Exception

The foregoing does not apply to a conviction for a CIMT occurring outside of the United States for a purely political offense committed abroad.^{[see link]} The term “purely political offense”, as used in INA 212(a)(2)(A)(i)(I), includes offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities.

Drug crimes and even drug usage bring severe immigration consequences. Under the Immigration and Nationality Act (INA), almost all drug crimes can lead to deportation.  A Non-US Citizen is deportable for having been, at any time after being admitted to the United States, convicted of violating (or conspiring to or attempting to violate) any law or regulation relating to controlled substances; i.e. drugs. (I.N.A. § 237(a)(2)(B).)  It is irrelevant whether the conviction was for violating a state; federal; foreign law or foreign regulation.

There is one exception, in relation to drug crimes, and that is for a single conviction of a marijuana offense. This exception only applies if the conviction involved possession of 30 grams or less for one’s own, personal, use.

However, even absent a conviction, drug use can make a Non-Us Citizen deportable. A Non-US Citizen who has been a drug addict or abuser at any time since admission to the United States is deportable, even without a conviction.

Petty Offense Exception

In general, a Non-US Citizen who is convicted of, or formally admits to committing, one CIMT is inadmissible. However, a Non-US Citizen may avoid being inadmissible under these grounds, by using the petty offense exception if (1) The Non-US Citizen has only ever committed one CIMT and; (2) The Non-US Citizen was not “sentenced to a term of imprisonment in excess of six months)” and; (3) The offense had a maximum possible sentence of one year. A person who comes within the petty offense exception is not inadmissible under the CIMT ground but may be deportable.

Marijuana

It is important to discuss Marijuana. NON-US CITIZENS SHOULD NOT USE MARIJUANA. The possession and use of Marijuana is a federal crime. State legalization does not change the fact that the possession and use of Marijuana is a federal crime. There are consequential immigration risks involved in possessing, using, selling, or growing marijuana, even if these actions are legal in the state in which the activity took place. A Non-US Citizen who has possessed or used marijuana can be found inadmissible, denied entry into the United States, or have their Green Card application or their Application for Naturalization denied. Depending on the circumstances, it can make an LPR deportable. 

Marijuana is considered a Schedule 1 drug under federal law, which governs immigration eligibility, including visas, Green Cards, and US Citizenship. To emphasizes the seriousness of marijuana usage and convictions, we note that Heroin is another Schedule 1 drug.

Federal immigration law does not make any exception for marijuana that has been prescribed by a doctor. United States Federal Law will prevail over anything your doctor may or may not state, prescribe or believe.

In April of 2019, USCIS issued a Policy Alert which reminded immigration adjudicators that the possession, use, sale, distribution, and production of marijuana remains illegal under United States federal law despite state decriminalization and legalization.

Juveniles, Crime, and Immigration

It is well established that a juvenile delinquency adjudication does not constitute a conviction for immigration purposes, regardless of the nature of the offense. In Matter of Devison, the Board of Immigration Appeals (BIA) reaffirmed its longstanding rule “that juvenile delinquency proceedings are not criminal proceedings, that acts of juvenile delinquency are not crimes, and that findings of juvenile delinquency are not convictions for immigration purposes.” The applicable due process standard for delinquency, like removal proceedings, is fundamental fairness. This holding, that juvenile adjudications do not constitute convictions for immigration purposes, is incredibly important because most but not all, criminal-related provisions of immigration law are triggered by a conviction. Importantly, admitting to juvenile delinquency also does not constitute an “admission” under the Immigration and Nationality Act (INA) because the person has to admit to a crime in order to trigger certain inadmissibility grounds requiring admission, and delinquency is not considered a crime under immigration law.

However, even though a delinquency adjudication is not a conviction for immigration purposes, it can still create problems for immigrants. Certain grounds of inadmissibility (bars to obtaining legal status) and deportability (loss of current legal status) do not depend upon conviction; mere “bad acts” or status can trigger the penalty. Contact us or see: https://www.ilrc.org/sites/default/files/resources/n.15-juvenile_delinquency-20190710.pdf

Deportation vs. Inadmissibility

It is important to mention that deportation is not the only thing that Non-US Citizens have to be concerned with if they are convicted of a crime. Inadmissibility is another potential immigration consequence stemming from a criminal conviction.  Individuals who are inadmissible are not permitted by law to enter the United States or to adjust their status from within the United States.

We provide immigration consultations for criminal defense attorneys and Non-US Citizen criminal defendants. Contact us for details.