This article is meant to provide a general overview of the relevant concepts and terminology relating to the immigration consequences of criminal activity.
Immigration laws impose harsh sanctions on foreign-born persons who are convicted of crimes or associated with criminal activity. Many provisions contained in the immigration statutes were enacted precisely to exclude or expel foreign-born persons involved in certain criminal activity.
The interaction between immigration and criminal laws is extensive and complicated. The immigration consequences of criminal convictions or criminal activity can be most severe, and some, like deportation, may be permanent. Moreover, these sanctions can directly affect an individual's life and status after the penalty which was imposed by the criminal trial court has been satisfied.
All non-citizens, including lawful permanent residents, are subject to immigration consequences if they have violated the immigration laws. Permanent residents, like all other aliens, may be "removed, i.e.," deported, or expelled from the United States as the result of such violations. The impact of such criminal convictions also affects the eligibility of applicants for many immigrant and nonimmigrant statuses, including political asylum, cancellation of removal, registry, NACARA benefits, LIFE benefits, "V" visas, family unity, temporary protected status under § 244, and legalization and subsequent adjustment to permanent resident status under §§ 210 and 245A of the INA.
Permanent residents who have decided to become United States citizens and have begun the naturalization process are not yet citizens. They can expect to be treated as aliens. The pending application of a candidate for naturalization also may be placed in jeopardy by past criminal conduct or a criminal judgment. If a naturalization applicant is denied because of criminal activity, she or he may face removal for the same offense.
In the context of deportation proceedings in the US, it is important to understand the definition of, and the difference between, the terms Admissibility and Removability:
Admissibility is the determination made as to whether an alien is entitled to enter the United States as an immigrant or as a nonimmigrant. A removal proceeding brought upon charges of "inadmissibility" is an administrative proceeding in which it will be determined whether the alien applicant is admissible. This often entails the legal fiction that an alien who is physically present for such proceedings is not yet within the United States.
Removability (Deportability) is the determination made when an alien is alleged or found not to be entitled to remain in the United States. A removal proceeding based upon charges of "deportability" is an administrative proceeding in which the government bears the burden of proving that the alien is in the United States in violation of law. One who is found deportable is either "removed" (deported) or allowed to depart voluntarily under an administrative procedure called voluntary departure.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) replaced exclusion and deportation proceedings with removal proceedings. In removal proceedings, the ICE may charge non-citizens with being inadmissible under INA § 212 or with being deportable under INA § 237. Only those non-citizens who have been "admitted" to the United States will face the grounds of deportability. A nonimmigrant convicted of or admitting to a crime may be charged with violation of status, or be subject to deportation on criminal grounds, or both. A nonimmigrant also may be found inadmissible and denied a visa, or face future exclusion, based upon a prior conviction or the admission of a crime. In all cases, a finding of deportability or inadmissibility on criminal grounds adversely affects an alien's eligibility for discretionary relief or other benefits.
A broad range of criminal convictions trigger immigration consequences. Moreover, the length and type of sentence may determine whether a respondent is subject to removal, eligible for relief from removal, or qualified to become a naturalized citizen. Specific criminal activity and the immigration consequences if convicted of such activity are varied. Four of these categories, many of which overlap, are discussed below:
Crimes Involving Moral Turpitude
Crimes involving moral turpitude are typically crimes that are considered inherently wrong by our society’s standards. Crimes in this category include (whether felony or misdemeanor): theft crimes, fraud crimes, crimes of violence, trafficking in a controlled substance, and aggravated DUI (such as DUI while driving with revoked license). Once convicted of a crime involving moral turpitude, an alien may be unable to establish good moral character, required as a precondition for some forms of relief from removal. The statutory provision for good moral character bars aliens involved in most criminal activity from satisfying its terms. The "good moral character" language is generally interpreted as requiring a showing that the individual's conduct comports with that considered acceptable by prevailing community standards. Discretionary relief and other benefits affected by commission of a crime involving moral turpitude include voluntary departure, waiver, cancellation of removal, political asylum, registry, adjustment of status, and naturalization. An alien may be subject to mandatory detention with Immigration Customs Enforcement (ICE) for commission of crimes involving moral turpitude.
Aggravated felonies
The definition if aggravated felony includes many offenses, even some crimes classified as misdemeanors by the State. Such offenses include murder, rape, sexual abuse of a minor, kidnapping, child pornography, alien smuggling; definition also includes crimes of bribery, crime of violence, theft, obstruction of justice, forging documents, and gambling offenses where term of imprisonment imposed is at least one year. Commission of a crime classified as an aggravated felony is NOT a ground of inadmissibility – so some forms of relief do exist. However, an alien convicted of an aggravated felony at any time is subject to removal (is deportable) from the US. Aggravated felony convictions subject the alien to mandatory custody with ICE.
Controlled Substance Offenses
Controlled substance offenses may be classified both as crimes involving moral turpitude or aggravated felonies; some controlled substance offenses are neither. The INA has created a separate category dealing with controlled substance offenses. A controlled substance offense is one in which the alien was convicted or admits having committed a violation relating to a substance named in the Controlled Substances Act. Controlled substances offenses create grounds for BOTH inadmissibility and removability (deportability). Moreover, it should be noted that an alien may suffer adverse immigration consequences on controlled substance grounds if the US government has “reason to believe” that the alien was involved in drug trafficking – no arrest or conviction required. Controlled substance convictions subject the alien to mandatory custody with ICE.
Firearms Offenses
Firearms offenses, like controlled substance offences, have a separate classification under the INA. They too, however, may be classified as aggravated felonies. These crimes relate mostly to the offenses of unlawful use of explosive material and discharge, possessing, purchasing, etc of prohibited firearms in violation of federal law. A conviction of a firearms offense is not a ground of inadmissibility, but does create grounds for removal (deportation). Conviction of firearms offenses may subject the alien to mandatory custody with ICE.