Deportability Versus Inadmissibility

An alien who has been convicted of a crime (anywhere in the world), may be deportable, inadmissible, or both. “Deportability” refers to the power of INS to expel an alien from the United States, whereas “inadmissibility” refers to the power INS from entering the United States, whether through consular processing or adjustment of status.

Certain convictions, such as firearms, trigger deportability, while crimes involving moral turpitude and drugs may trigger both deportability and inadmissibility. To better understand the immigration consequences of criminal convictions, let us analyze the following hypothetical:

Eduardo Gomez entered the U.S. illegally from Mexico in 1980. He married a U.S. citizen in 1984, and they now have three U.S. citizen children. In June 1985, Eduardo was granted lawful permanent resident (“LPR”) status, upon a petition filed by his wife.

He was arrested for simple drug possession and entered a guilty plea on November 1, 1993. Eduardo was arrested again and entered a guilty plea to misdemeanor spousal abuse in January 2002. A month later, Eduardo was convicted of misdemeanor grand theft, which has a one-year maximum possible sentence. Imposition of sentence was suspended and he was ordered to spend 4 months in jail as a condition of probation.

What are the immigration consequences of Eduardo’s convictions? Although Eduardo’s 1993 drug conviction triggers deportability, he may still be protected against deportation. Because this was Eduardo’s first drug conviction for simple possession, he might have been eligible for Federal First Offender Act treatment, under 18 U.S.C. §3607. Recent legal developments suggest that if the matter was prosecuted in federal court (although it was prosecuted in state court), the expungement of the first possession conviction will effectively eliminate it for immigration purposes. (See Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

In Grageda v. INS, 12 F. 3rd 919 (9th Cir. 1993), the 9th Circuit Court has determined that willful commission of spousal abuse, an act of baseness and depravity contrary to accepted moral standards, was a crime of moral turpitude (“CMT”). For a CMT to trigger deportability, a conviction is required. However, a formal admission to a CMT to an INS officer outside the criminal court for example, is enough to make an alien inadmissible.

Eduardo is both deportable and inadmissible for his spousal abuse conviction. The grounds of deportability only apply to people who have been “admitted”, and the domestic violence ground specifically says that conviction must have occurred since admission. As a matter of law, aliens who are applying for adjustment of status are assimilated to the position of someone seeking admission to the United States. Moreover, if one’s permanent residence was obtained through the special agricultural worker or other amnesty/registry programs, one may be considered admitted as of the date of filing of the application, or at the very latest, upon the grant of temporary residence. Because Eduardo obtained his status as a legal permanent resident of the U.S. in 1985, he is considered “admitted” as of that date. Therefore, Eduardo’s spousal abuse conviction renders him deportable. Although Eduardo is deemed inadmissible under such conviction, as long as he does not leave the U.S. and reenters at a later time, inadmissibility does not apply to him.

Theft is also a CMT, along with assault, fraud, sexual offenses, robbery, and others. Because this is Eduardo’s second CMT, he is considered inadmissible and deportable. Had this been his first CMT offense, Eduardo would not be considered as inadmissible, because he would have qualified under the petty offense exception. To qualify under the petty theft exception, the maximum possible sentence must be one year or less, defendant must not be sentenced to more than six months, and lastly, the defendant must have only committed one CMT. Eduardo is deportable, because he has committed two CMTs, which were not part of a single scheme of criminal misconduct, since his admission to the U.S.

Based on the above hypothetical, you now should have a better understanding of the different types of pleas and sentences in criminal court, which may result in adverse immigration consequences. Therefore, if you have been convicted of a crime and are in the process of applying for adjustment of status, are a lawful permanent resident that is planning on leaving the United States or a lawful permanent resident contemplating naturalization, it is advisable to consult with a lawyer before doing so.