What is a conviction for Immigration purposes?
Under USC 1101(a)(48)(A), a conviction with immigration repercussions is any formal judgment of the alien entered by a court. A conviction can also occur when adjudication has been withheld where:
- A judge or jury has found the alien guilty or the alien has entered a plea of nolo contender or has admitted sufficient facts to warrant a finding of guilt, and
- The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
Therefore, a court-ordered drug treatment of domestic violence counseling alternative to incarceration is considered to be a conviction for the purposes of immigration if a guilty plea is taken. This is true even if the guilty plea is or might later be vacated.
Essentially, if you have been found guilty, have plead guilty, have plead nolo contendere or have admitted to enough facts in a case to warrant a finding of guilt, you will be considered to have a conviction. It is important to remember that Deferred Adjudication’s count as a conviction for immigration purposes. However, Pre-Trial Diversions do NOT count as convictions for immigration purposes.
Criminal Inadmissibility Grounds
Certain crimes may prevent a noncitizen from being able to obtain lawful admission status in the United States. Certain crimes may also prevent a noncitizen who already has lawful admission status from being able to return to the United States from a future trip abroad.
Some of the crimes that will effect admissibility into the United States include, but is not limited to:
- Crimes Involving Moral Turpitude, which includes a broad range of crimes:
- Crimes with an intent to steal or defraud, such as theft or forgery.
- Crimes in which bodily harm is caused or threatened by an intentional act, or where serious bodily harm is caused or threatened by a reckless act. This includes things such as murder, rape, and some manslaughter and assault crimes.
- Most sex crimes are considered crimes of moral turpitude
- Violations of any law of a Federal, State, or foreign country relating to a controlled substance.
- The only exceptions to this are:
- if the crime was committed when the defendant was under the age of 18
- The maximum imprisonment possible if convicted would not exceed one year and the sentence did not exceed 6 months
- It is a single offense of simple possession of 30 grams or less of marijuana.
- The only exceptions to this are:
- If you are convicted of 2 or more offenses, regardless of whether the crimes involved moral turpitude, and the aggregate sentences to confinement was for 5 or more years.
- If it is known, or there is sufficient reason to believe that you are an illicit trafficker.
- This includes anyone who aids, abets, assists, conspires, or colludes to illicit trafficking.
- Prostitution: Including anyone who has been convicted, admitted to, or has had the intent to engage in prostitution. Furthermore, anyone coming to the United States with the sole intention to prostitute or has engaged in prostitution within 10 years of their Visa application will be inadmissible.
- Likewise, anyone who tries to procure or import prostitution will be inadmissible.
Criminal Bars on Obtaining United States Citizenship
Certain crimes will prevent a Lawful Permanent Resident from being able to obtain full United States Citizenship. A conviction or admission to the following crimes, amongst others, bars the finding of good moral character required for citizenship for up to 5 years:
- Confinement to a jail for an aggregate period of 180 days
- 2 gambling offenses
- 2 or more offenses of any type, plus an aggregate prison sentence of 5 years.
- Crimes involving Moral Turpitude
- Controlled Substance Offenses, unless it is a single offense of simple possession of 30 grams or less of marijuana.
Common Misconceptions Involving Criminal Immigration Offenses
- A lawful permanent resident (green card holder) is NOT a United States citizen and can be deported up until the point of full United States citizenship.
- A deferred adjudication is considered a conviction for immigration purposes.
- Expungements DO NOT help for immigration purposes.
- A plea of nolo contendere, is considered a guilty plea.
Things to Try and Avoid Criminally for Immigration Purposes
There are certain convictions and punishments that are important to try and avoid if possible as to not jeopardize your immigration status. This list includes, but is not limited to the following:
- If possible it is best to try and avoid any convictions, including any sorts of pleas and punishments.
- It is also important to try and avoid all Aggravated Felonies, listed under * USC 1101(a)(43).
- All controlled substance offenses, excluding a single possession charge of 30 grams or less of marijuana.
- Crimes of domestic violence
- False claims to United States citizenship.