Article - English

The Immigration Consequences of Criminal Activity

By Attorney Madeleine Moreno

Kokuo Ballogie is a lawful permanent resident from Togo, and is working at night in a convenient store to pay for his college education. One night, Joseph, enters the store and starts harassing other customers trying to pick up a fight. Kokuo threatens Joseph by grabbing a knife. A few minutes later the police arrived and Kokuo is arrested for aggravated assault. Kokuo enters a plea of no contest followed by one year of probation. Six months later while reporting to his probation officer, he is taken into custody by immigration. Kokuo is a permanent resident (green card holder) and has been physically present in the US only for two years. As a result, he did not have sufficient years to qualify for a waiver and is placed in deportation proceedings. Three months before his college graduation, Kokuo is deported to Togo for commission of a crime involving moral turpitude within 5 years of the date of entry.

Many newcomers to this country do not realize that minor crimes can have very serious immigration consequences. Section 212 of the Immigration and Nationality Act lists various grounds of inadmissibility. These provisions can affect nonimmigrant (temporary) or immigrant (permanent) visa petitions; arrival at a U.S. Port of Entry; or when filing an application to Adjust Status.

Immigration law contains two major classifications of crimes: crimes involving moral turpitude and aggravated felonies. Acts of moral turpitude are basically those that are offensive to the accepted moral standards. For instance, crimes of theft, fraud and serious violence are normally viewed as acts involving moral turpitude. The issue of what crimes involve moral turpitude is not always clear and the term has been modified over the years through case law.

If a person is convicted of a crime of moral turpitude committed within 5 years of entering the U.S., he/she could face removal. If this person has a spouse, child or parent who is a U.S. citizen or permanent resident, it may be possible to apply for a discretionary waiver. The waivers are difficult to obtain and require a showing of extreme hardship to the relative. In comparison, a person convicted of an aggravated felony faces more restrictions on the ability to apply for relief. For instance, a permanent resident with an aggravated felony conviction is not eligible to apply for the waiver described above and is barred from other forms of relief. The term aggravated felony is created by statute and includes the following: murder, rape, a theft, burglary or possession of stolen property where the term of imprisonment imposed is at least one year and other crimes listed on the Immigration and Naturalization Act.

A criminal conviction may also come to light when applying for naturalization and the person applying may be placed in removal proceedings. When applying for citizenship it is necessary to show that one has been a person of good moral character for the past five years (three years for certain individuals married to U.S. citizens). For serious crimes the INS may look back beyond the 5 or 3 year period.

A non-citizen charged with any crime should seek advice from a criminal attorney and an immigration attorney before pleading in court. If convicted of a misdemeanor (a crime punishable by a year in jail or less), the chances of being deported are lower but if the offense involves drugs, firearms, violence or sex there is a substantial risk. Also, the immigration consequences of criminal cases are different for minors than for adults. A non-U.S. citizen who is found guilty in juvenile court normally does not suffer any immigration consequences unless it involves drug trafficking.

For more information, please call Attorney Moreno at 508-798-5291 located at 390 Main Street, Suite 718, Worcester, MA 01608.