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Why Strong Criminal Defense Is Essential to Protecting Immigration


How Criminal Convictions Make Immigration More Challenging

Many of the United States’ immigration policies and messaging target the “criminal alien” as a justification for increased enforcement and greater restrictions. The Trump administration often governs under this mindset, with the President frequently making remarks suggesting that more immigration leads to more crime. Research tends to show the opposite is true, but this philosophy is arguably engrained into how criminal law intersects with immigration law.

Criminal convictions can do tremendous damage to an immigrant’s ability to remain in the United States. A criminal record in the United States or even in another country can be grounds for inadmissibility into the country, per guidelines established by The Immigration and Nationality Act (INA). Furthermore, a criminal conviction can even result in removal proceedings for individuals with non-immigrant visas and green cards. Below, we will discuss the different types of criminal convictions and how they can impact immigration status.

Crimes of Moral Turpitude

The INA defines “crimes of moral turpitude” as an act that runs contrary to justice, honesty, or good morals. It also encompasses any fraud, vileness, or depravity that violates an individual’s good faith duties and obligations to their fellow citizens or society at large, even if the act is not itself punishable as a crime. The benchmark on what constitutes a crime of mortal turpitude can be somewhat gray, but a good rule of thumb is it includes anything that could be classified as shocking by a reasonable person.

A conviction or admittance to committing a crime of moral turpitude renders an immigrant inadmissible to the United States. An immigrant can attempt to avoid being accused of moral turpitude by leading an honest life free of fraud, cheating, or other salacious controversy.

Aggravated Felonies

The INA categorizes most violent crimes as aggravated felonies. These can include:

  • Murder
  • Rape
  • Sexual assault or abuse of a minor child
  • Money laundering
  • Drug offenses or trafficking
  • Explosives or firearms trafficking

In addition, any violent crime where the punitive measures include at least 1 year of incarceration is also classified as an aggravated felony. Robberies or thefts can also qualify if the prison sentence meets or exceeds 1 year.

Immigrant Waivers

The INA offers immigrants convicted of crimes some recourse in the form of the 212(h) waiver. This waiver can help defend immigrants from removal proceedings as well as help keep them eligible for key immigration documents such as green cards. 212(h) waivers are available for many crimes, but not murder, crimes involving torture, or drug trafficking. That means if an immigrant is convicted of any crime involving murder, torture, or drug trafficking, they will be ineligible for a waiver and will likely be unable to gain lawful entry to the United States.

To successfully petition for a 212(h) waiver for an eligible crime, an immigrant must prove the following:

  • They have been rehabilitated and have no additional criminal history
  • They exhibit no danger to the safety and security of the country or the national welfare
  • Their crime occurred more than 15 years before they applied for the visa, entry, or adjustment of status

The United States Citizenship and Immigration Services (USCIS) ultimately decides whether to grant a 212(h) waiver. Note that meeting the above criteria does not guarantee a waiver.

Being Truthful About Criminal History When Applying for Status

When an immigrant applies for a green card, visa, or other immigration-related status, they will be asked if they have any criminal history as part of their application. It is essential immigrants tell the truth and disclose any convictions, as the USCIS will likely eventually discover any criminal record in the course of their evaluation of an individual’s materials.

If an immigrant is caught committing fraud by failing to disclose a criminal conviction, they will be barred from applying to practically all immigration services in the future, permanently. Thus, it is critical to be truthful about criminal records in immigration applications, even if the disclosures lead to complications. To do otherwise risks an immigrant’s ability to live and work in the United States.

How Immigration Status Impacts Criminal Case Sentencing

As we have covered above, criminal convictions can make obtaining any sort of immigration document especially difficult. A recent criminal conviction can spell disaster for an immigrant already living in the country, as any new criminal activity will be not be eligible for a 212(h) waiver.

Criminal convictions expose immigrants to unique and devastating potential consequences in sentencing, including mandatory deportation, mandatory detention, and disqualification from eligibility for relief from removal in immigration proceedings. Indeed, the United States Supreme Court cemented the validity in using deportation in criminal sentencing in the 2010 case Padilla v. Kentucky, acknowledging removals as “intimately related to the criminal process.”

Furthermore, an immigrant in criminal court faces particular disadvantages not experienced by citizens. Immigrants are generally excluded from powerful criminal dispositions that are requested instead of harsher sentences and incarceration time, including releases from custody on probation, parole, anger management courses, and drug or alcohol treatment. These exclusions can drastically limit a criminal defense attorney’s options in advocating for an immigrant client.

In summary, an immigrant named as defendant in a criminal case faces serious disadvantages, particularly in the limitations on lighter sentencing. If convicted of a serious crime, punitive consequences can and often do include some form of deportation or detention proceeding.

Criminal Defense and Immigration Lawyers Can Help You

Because an immigrant facing criminal charges can be deported if convicted, retaining the services of a strong criminal defense lawyer is imperative to protecting the opportunity to live and work in the United States. If you or your loved one is an immigrant facing a criminal charge or is struggling to navigate the immigration process with a criminal record, we can help. Our team at Law Office of Kelli Y. Allen, PLLC has substantial experience practicing in both immigration law and criminal law. Our boutique firm strives to deliver big results, with an emphasis on giving you and your case the empathetic, thorough care it deserves.

After reviewing the details of your situation, we can help explore your legal options and strategize on how best to approach your case. Our intimate understanding of both the immigration and criminal defense legal systems equips us to give you a realistic assessment on the likelihood of achieving a favorable outcome.

Request a consultation from our immigration and criminal defense attorneys today. Dial (704) 870-0340 or contact us online.