Every nation’s immigration rules and regulations seek to weed out “undesirables” or “deplorable” – those with propensity for malicious mischief or, simply, to do harm. The United States is no exception.
When a foreigner commits a crime and gets convicted, the steps toward the path to citizenship is an obstacle course or, at worst, a dead end. The standard processing time to obtain a green card could stretch to additional years of filing waivers, motions, appeals or appearances before an immigration judge, depending on the situation.
Having a criminal conviction, whether of a serious nature or not, determines an applicant’s admissibility into the United States. It does not matter whether the visa is processed abroad or the applicant is present in the U.S. and qualifies for adjustment of status.
Other routine procedures such as applying for a renewal of one’s green card or for citizenship could be delayed or derailed. DACA applicants and provisional waiver applications may be denied because of a criminal record.
If the criminal conviction is severe enough as prescribed by the rules to merit removal from this country, the applicant may find himself/herself clinging to the last straw, begging the immigration judge for a chance to be allowed to stay in the U.S.
While waiting in “immigration purgatory,” however, there are applications/reliefs that are crucial to foreigners who need to stay in the United States with their family when they are placed in removal proceedings. These reliefs/applications impose on applicants a code of behavior within the standards of “good moral character” to enable them avail themselves of asylum, cancellation of removal, withholding of removal or voluntary departure.
In certain cases, a felony conviction after naturalization (with the case pending but not disclosed during the citizenship proceedings), could cause the naturalization to be revoked as it is considered illegally obtained or obtained by deceit and fraud. This is the ultimate punishment – divestment of a hard-earned U.S. citizenship because of a disqualifying criminal conviction.
Crimes involving moral turpitude (such as theft, fraud, false statement, assault, voluntary manslaughter, etc.) are determinant of “good moral character.” Failure to prove good moral character in the last five years prior to filing of the application leads to its denial. For applicants who have been convicted of an aggravated felony such as murder, rape, sexual abuse of a minor, crime of violence in which the term of imprisonment is more than one year, etc., they are permanently barred from becoming U.S. citizen.
If the applicant is found to have deliberately misled the U.S. government and withheld the information and still obtained U.S. citizenship, the penalty for this separate offense is jail time of 15-25 years plus fines.
The terms “crime involving moral turpitude” and “aggravated felony” are specially defined under immigration law. Federal and state legislatures could classify offenses as a “misdemeanor” but under immigration law, it could be classified as an “aggravated felony” for which mandatory detention could be imposed.
The need to consult an immigration attorney when confronted with criminal charges cannot be overstated. As a foreigner, you are constantly bombarded with questions contained in the immigration forms relating to criminal offenses. For instance, a question in the Application to Adjust Status asks, “have you ever (in or outside the United States) been arrested, charged, convicted of a crime (excluding traffic violations)?”
If an applicant feels that an arrest or conviction that occurred in his/her life was not significant enough or was just a traffic violation, failure to disclose could have serious consequences.
If the immigration officer checks public records and your record appears with an arrest or conviction, this is a problem because being caught in a “lie” makes you also inadmissible.
What if the offense is, indeed, insignificant because it is not a “crime involving moral turpitude” or the crime is a misdemeanor, being honest and candid would be appreciated.
In the worst-case scenario that the green-card application is denied because of the criminal record, one can probably apply for a waiver of inadmissibility. In some instances, waivers are likewise available to those who have already obtained their lawful permanent resident status (green card holders) but who become deportable because of criminal convictions.
Waivers are available in order to preserve “family unity,” but not in all cases. The fate of those who commit “aggravated felonies” as defined by immigration laws is harsh — i.e., mandatory detention (without bail) and, eventually, removal from the United States.
As we always tell our clients, “Just stay out of trouble.”