The Immigration Consequences of Criminal Convictions and Criminal Conduct
Criminal convictions can have very serious effects on the immigration status of non-citizen (aliens). This applies to all aliens, including permanent residents who have been in the US for many years.
Criminal convictions can affect immigration status in at least 3 ways:
First, a conviction can make an alien “inadmissible” which means that the alien might be prevented from entering the U.S. (as an immigrant or temporary non-immigrant) and/or from legalizing (adjusting) their status in the US, even though they may have an approved petition through a qualifying relationship to a family member or employer.
Second, a conviction can make an alien deportable, thus allowing the INS to file removal proceedings to ask an Immigration Judge to enter a removal order against the alien.
Third, it can either make an alien ineligible for U.S. citizenship or interfere with and delay the alien's ability to obtain citizenship. In other words, some convictions, just by their nature, will make an alien completely and permanantly ineligible for citizenship (and may lead to deportation/removal), while others will make it more difficult to obtain and will require that the alien show a longer track record of staying out of trouble (for lack of a better expression) along with a showing of rehabilitation and good moral character in the years after the criminal case was closed.
Whether a conviction will affect an alien’s immigration status can be very complicated and may depend on several things, including:
- The offense in question (ie. petit-theft, fraud, drug possession, etc.)
- Whether the proceeding resulted in a "conviction" for immigration purposes
- The type and length of sentence imposed by the criminal court
- The maximum punishment allowable under the law for the subject offense
- The date that the alien allegedly committed the offense
- The date that the alien was convicted
- The jurisdiction in which the conviction was obtained (which state, state/federal)
- The number of convictions which an alien has, as well as the dates of the convictions.
- The alien's immigration status (non-immigrant, permanent resident, no status)
- The date that the alien entered or was admitted to the U.S.
- If relevant, the date that the alien obtained permanent residency
All of these factors (and many others) may affect whether an alien is charged with being deportable or inadmissible by USCIS.
Also, because these immigration laws are generally retroactive, an alien who was convicted of an offense 20 years ago may face the same bad immigration consequences as an alien who was convicted of the same offense today. Of course, there are exceptions to this rule, but the important point to note is that it would be wrong for a non-citizen to assume that he or she is OK, simply because the conviction was entered many years ago.
Aliens may also be charged with being deportable or inadmissible if USCIS can prove that they have admitted to committing certain offenses, even if the alien was not actually convicted of the offense and the charges were dropped.
The Disposition v. What "really happened". Some non-citizens seem to operate under a misconception that their criminal conviction record will not affect their immigration status because they know what "really happened" (ie. that they were not really involved in the commission of the crime or that they were innocent of the charges, etc.) and that this truth will somehow prevail and save them from any immigration consequences that may follow. However, the bottom line here is that for immigration purposes, the only thing that really matters is: the final disposition of the case, the law of which the non-citizen was convicted, and how that was dealt with by the prosecutor, defense attorney, and the judge. Also relevant is the extent to which all of this was properly documented in "the record" and the case file.
Prosecutors will generally file and pursue charges based upon what they think they can prove under the law of their jurisdiction. Their decision will ultimately be based upon what evidence they have to work with and how well they think they can prove the charges by building a case with the evidence. This may or may not always reflect what "really happened" and may work for or against the defendant.
For example, it may work for the defendant if the prosecutor's case is weak and she decides to break down a DUI charge to reckless driving - in exchange for the defendants agreement to enter a plea (no-contest or guilty) to that lesser offense. It can work
against the defendant if the prosecutor puts the evidence and witnesses together in such a way that the charges are actually not reflective of what really happened - which may lead to a gross miscarriage of justice, such as where a defendant is wrongfully accused or where evidence or witnesses distort the truth and point the prosecution in the wrong direction.
In short, when considering whether immigration consequences will result from a criminal conviction, the assumption is that the non citizen has already had his or her due process, the criminal case is closed, and the only thing that matters is the final disposition and an analysis under the immigration law as to whether that conviction will have immigration consequences. In most cases, it is a generic analysis that has nothing to do with the non-citizen, and everything to do with analyzing whether the criminal law (conduct) matches up with the immigration law (consequences). This is a classic "double-edged sword" that can work for or against the non-citizen, depending upon the case.
Waivers and Relief. As bad as all of this sounds, there is some good news. Even if an alien has been convicted of an offense which renders him/her inadmissible or deportable, affected aliens may be eligible and apply for waivers of inadmissibility and/or deportation. The effect of a waiver is to excuse and erase the offense from their immigration history and allows the alien to either enter the U.S., legalize their status, or to cancel the deportation (removal) process. Once a waiver is granted, it is permanent for the ground of inadmissiblity or deportability and has the effect of resetting the alien's immigration status and giving the alien a "clean slate." Of course, the waiver is retroactive in nature, in that it only erases past convictions that were disclosed and waived. Any subsequent convictions can be used against the alien to form a new basis of inadmissibility or deportability.
The type of waiver that an alien applies for will depend upon whether the criminal conviction or conduct renders the alien inadmissible or deportable. Whether an alien is eligible for the waiver can be a very complicated question that may be litigated in the course of a removal proceeding, but generally it will involve and depend upon the answers to the very same questions above (ie. whether a conviction will effect an alien's status).
Challenging the Conviction in the Criminal Court. In some cases, waivers and relief may not be available because the criminal conviction has made the non-citizen ineligible. In these cases, the non-citizen must consider and pursue the possiblity of vacating or setting aside the conviction and reopening the criminal case in the state or federal court. Whether this can be acomplished will depened upon the laws and rules of the jurisdiction in which the conviction was obtained. This is a very complex topic and an advanced strategy which is beyond the scope of this explanation. What is important is that the non-citizen give some consideration to the possiblity of challenging the conviction and should consult an experienced immigration and/or criminal defense attorney ASAP in order to find out whether any such grounds exist.
Padilla v. Kentucky. On March 31, 2010, the United States Supreme Court issued a decision in the case of
Padilla v. Kentucky which greatly expands the rights of non-citizens who are facing criminal charges in the United States. In short, the Court held that a non-citizen has a Constitutional right to be informed (by his or her attorney) of the U.S. immigration consequences of any plea (guilty or no contest) made in a criminal proceeding in State or Federal Court. This is a major change from the previous rule which only allowed criminal aliens to challenge convictions that were based upon affirmative misadvice by counsel (as to the immigration consequences of their plea). In so ruling, the U.S. Supreme Court recognized that immigration consequences of criminal pleas and convictions can be as bad, if not worse, than the immediate effects of the plea in the criminal court. This ruling is likely to force criminal defense attorneys to educate themselves even more about the immigration consequences of criminal convictions so that they can competently advise their clients, or otherwise to induce them to bring knowledgeable Immigration Attorneys on board who can take over the function of rendering this all important advice. In the meantime, non-citizens should be aware that they now have a Constitutional right to receive competent advice from their attorney regarding the immigration consequences of any plea that they make in a U.S. criminal proceeding, and if they are denied this right, that they may be able to withdraw or set aside their plea on this Constitutional ground.
If you have any questions about whether an offense you have committed or been convicted of will effect your immigration status, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.