By Devin Connolly & Nancy E. Miller
A person born outside of the U.S. who has been convicted of a crime may still be eligible for permanent resident status (“Green Card”). Their criminal history may make their path to permanent resident status more difficult but not impossible.
The person’s ability to immigrate to the U.S. will depend largely on how both the Immigration and Nationality Act (“INA”) and the applicable case law categorize their criminal conviction. It is crucial that a person understand the implication of their conviction before they apply for an immigration benefit. For this reason, anyone with a criminal conviction should always consult a knowledgeable and experienced immigration attorney before applying for a benefit under the INA. The potential categories into which a conviction may fall include Crimes Involving Moral Turpitude (“CIMT”), Aggravated Felonies and Controlled Substance Violations. This article will focus primarily on CIMTs.
A non-citizen who is convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of, a crime involving moral turpitude is inadmissible to the United States. A CIMT has been defined as “a crime that is morally reprehensible and intrinsically wrong, so that is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” In other words, it is not just illegal; it is morally unacceptable. Examples of CIMTs are robbery and child or spousal abuse whereas simple assault is not. However, the law in this area is not clear cut. Some violations are considered CIMTs in some circuits but not in others. CIS is bound by the law in a particular circuit for cases filed in that circuit. Whether the conviction is for a simple violation as opposed to an aggravated one may affect whether it is a CIMT. In other instances, neither statute nor case law may have addressed whether a certain crime is a CIMT. In that case, it will be necessary to explain by analogy to other law why this crime is not a CIMT. It is the applicant’s responsibility to show that she is eligible for the benefit sought so any potential blocks must be adequately dealt with.
A CIMT conviction may not disqualify an intending immigrant from being granted permanent resident status. Individuals in this situation have two potential options, which include the petty offense exception and requesting a waiver of inadmissibility. The petty offense exception allows one to get a green card despite having the conviction and without a waiver. However, not everybody qualifies for this exception. A person will only be eligible for the petty offense exception if the maximum penalty possible for the one crime of which they were convicted did not exceed imprisonment for one year, and if the alien was not sentenced to a term of imprisonment longer than six months (regardless of how long they actually served). If the applicant is able to meet these requirements, they are not inadmissible and may still qualify for permanent resident status.
If the petty offense exception is not possible, the alien must obtain a waiver of the ground of inadmissibility in order to be eligible for a green card. To qualify for the waiver, the applicant must prove that their U.S. citizen or permanent resident spouse, parent, or child will suffer extreme hardship if they are not granted permanent resident status. In determining whether the hardship is extreme, CIS looks to whether it is beyond that which is commonly experienced when a family member is deported. The fact that one loves the family member and will miss them is assumed. It will not be enough. In addition, the hardship that the alien will suffer is not considered except as how it affects the qualifying family members. The hardship, including the facts on which it is based, must be adequately and persuasively documented. In addition, the applicant must prove that he has been rehabilitated and is remorseful for his prior actions.
The existence of one or more CIMTs is not a reason to give up your dream of obtaining a green card. People make mistakes and it is possible to obtain forgiveness for prior misdeeds. It is true that applicants for permanent resident status may indeed face difficulties in their attempts to obtain a green card when they have a criminal conviction. However, a green card may still be within their grasp. Being represented by a knowledgeable and experienced immigration attorney is the best way to enhance your chances of success in obtaining a green card despite having been convicted of a crime.