Immigration Consequences of Criminal Matters

Criminal matters can have very serious immigration consequences. It is important to know how criminal matters could impact your immigration status. Any encounter you have with police may have immigration consequences whether you are here with no status or if you have a green card. Even minor traffic infractions such as driving without a license or a summons for drinking in public may have grave immigration consequences.

Failure to disclose something as minor as a summons, ticket for driving without a license, or even a case that was dismissed may result in your immigration benefits being denied. Even worse failure to disclose this information may lead to a finding of fraud, which will hurt your eligibility for immigration benefits in the future.

 

The term moral turpitude is not defined under federal law. However, courts in the United States have defined it generally as an act that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.

 

Due to the term's complicated meaning and the various laws that must be reviewed to determine if an individual has committed a crime involving moral turpitude, consultation with an experienced immigration attorney is recommended for any person to whom this section may apply.

 

A crime involving moral turpitude or CIMT as it is commonly referred to, has been vaguely defined as, "a depraved or immoral act, or a violation of the basic duties owed to fellow man," or recently as a “reprehensible act” with a mens rea of at least recklessness. Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).

 

Traditionally a CIMT involves intent to commit fraud, commit theft with intent to permanently deprive the owner, or inflict great bodily harm, as well as some reckless or malicious offenses and some offenses with lewd intent. For criminal defenders, the first step to see if an offense is a CIMT is to consult the California Quick Reference Chart. CIMT is notoriously vaguely defined and subject to much litigation. It includes crimes with elements of intent to defraud, intent to cause great bodily injury, and theft with intent to deprive permanently. In also includes some offenses involving lewdness, recklessness, or malice.

 

Note also that whether a particular offense constitutes a CIMT for immigration purposes is determined by federal immigration caselaw, not state rulings.

 

A noncitizen is deportable who (a) is convicted of at least two CIMT’s that did not arise out of the same incident, at any time after being admitted to the U.S., or (b) is convicted of one CIMT, committed within five years of admission to the U.S. (or if there was no admission, within five years of adjustment to LPR status), if the offense carries a potential sentence of at least one year. 8 USC § 1227(a)(2)(A).

 

A noncitizen is inadmissible if convicted of one CIMT, unless an exception applies. To qualify for the petty offense exception, the person must have committed only one CIMT, which carries a potential sentence of not more than a year, and a sentence of not more than six months must have been imposed. To qualify for the youthful offender exception, the person must have committed only one CIMT, while under age 18, and the conviction (in adult criminal court) or release from imprisonment occurred at least five years ago. 8 USC § 1182(a)(2)(A)(ii).

The term aggravated felony is defined under federal immigration law NOT by the state criminal code.  A crime does not have to be a felony under state law to be considered an aggravated felony. 

 

 I.N.A. § 101(a)(45) defines an aggravated felony (AF). Crimes considered an AF include: 

 

  • murder

  • rape

  • sexual abuse of a minor (which can include statutory rape)

  • drug trafficking

  • trafficking in firearms or destructive devices

  • various other offenses concerning firearms or explosive materials

  • racketeering

  • money laundering of more than $10,000

  • fraud or tax evasion involving more than $10,000

  • theft or violent crime with a sentence order of at least one year

  • perjury with a sentence of at least one year

  • kidnapping

  • child pornography

  • trafficking in persons or running a prostitution business

  • spying, treason, or sabotage

  • commercial bribery, counterfeiting, forgery, or trafficking in vehicles

  • failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed

  • alien smuggling, and

  • obstruction of justice, perjury, or bribery of a witness, if the term of imprisonment was at least one year.

 

This is not a complete list of all  aggravated felonies, and you should not attempt to evaluate your or anyone’s situation based upon it. Consult an immigration lawyer for a full analysis.

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