The US Congress has set up stringent measures to determine classes of foreign nationals who may be admitted into the United States, and the grounds for which foreign nationals may be removed. According to the Immigration and Nationality Act (INA) certain conduct may disqualify a foreign national from entering the United States (inadmissibility) or provide grounds for his or her removal or deportation. Prominently featured among this conduct is criminal activity.
Criminal activities that can affect your immigration status include violations of federal, state, or, in many cases, foreign criminal law. Criminal activity does not cover violations of the INA that are not crimes, most notably, being in the US without legal permission. Thus, the term “illegal alien” — an alien without legal status — should not be held synonymous with “criminal alien.”
This article will discuss some of the potential immigration consequences of criminal activity by a foreign national. “Criminal activity” generally refers to conduct for which a foreign national has been found or plead guilty before a court of law, though in some limited circumstances immigration consequences may attach to the commission of a crime or admission of acts constituting the essential elements of a crime. Consequences may flow from violations of federal, state or foreign criminal law.
Most crimes affecting immigration status are not specifically mentioned by the INA, but instead fall under one of the broad categories of crimes, such as crimes involving moral turpitude or aggravated felonies. In addition, certain criminal conduct precludes a finding of good moral character under the INA, which is a requirement for naturalization and certain types of immigration relief.
The immigration consequences of criminal activity may be grouped into two broad categories of inadmissibility and deportability. A foreign national, therefore, if found guilty, will become subjected to the grounds for inadmissibility or deportability. Criminal conduct may also affect an alien’s eligibility for either voluntary departure or discretionary relief from removal. Additionally, as noted above, criminal conduct is a key disqualifying factor under the good moral character requirement for naturalization.
Categories of Criminal Aliens
The INA lists the criminal grounds for designating a foreign national as inadmissible or deportable.
The broad classes of crimes, including crimes involving moral turpitude, aggravated felonies, and crimes that preclude a finding of good moral character are overlapping, but no two classes are coextensive. The types of crimes constituting crimes of moral turpitude are generally determined by case law. Crimes that are aggravated felonies are listed with specificity in the statute, with case law illuminating the bounds of certain listed crimes. Finally, crimes precluding a finding of good moral character are determined by a combination of case law and statutory law. These criminal classes are further modified for the purposes of specific INA provisions. The following sections will describe these broad criminal categories in more detail.
Crimes Involving Moral Turpitude:
Immigration law has used the term ‘moral turpitude’ in its criminal grounds for exclusion since 1891. What constitutes moral turpitude for criminal purposes has been determined by judicial and administrative case law rather than a statutory definition. In general, if a crime manifests an element of baseness or depravity under current societal mores — if it evidences an evil or predatory intent — it involves moral turpitude. Thus, certain crimes such as murder, rape, blackmail, and fraud are considered crimes involving moral turpitude, whereas crimes such as simple assault have not been considered to involve moral turpitude.
In 1988 Congress enacted the first ‘aggravated felony’ statute. Since then, Congress has designated specific offenses as aggravated felonies for immigration purposes, and has made removal of aliens convicted of such crimes a priority through streamlined procedures and ineligibility for various types of relief. Aggravated felonies were initially listed in the INA pursuant to the Anti-Drug Abuse Act of 1988 as part of a broad effort to combat narcotics trafficking. The only crimes designated in the 1988 Act were murder, drug trafficking, and illegal trafficking in firearms or destructive devices. Subsequent legislation has expanded the definition of “aggravated felony” a number of times, to include certain categories of crimes and many specific crimes.
INA Section 101(a)(43) defines “aggravated felony” through the listing of a number of criminal categories and specified crimes. The broadest categories of aggravated felonies under the INA are:
- Any crime of violence (including crimes involving a substantial risk of the use of physical force) for which the term of imprisonment is at least one year;
- Any crime of theft (including the receipt of stolen property) or
- Burglary for which the term of imprisonment is at least one year; and
- Illegal trafficking in drugs, firearms, or destructive devices.
Many specific crimes are also listed as aggravated felonies under the INA. These include:
- sexual abuse of a minor;
- illicit trafficking in a controlled substance, including a federal drug trafficking offense;
- illicit trafficking in a firearm, explosive, or destructive device;
- federal money laundering or engaging in monetary transactions in property derived from specific unlawful activity, if the amount of the funds exceeded $10,000;
- any of various federal firearms or explosives offenses;
- any of various federal offenses relating to a demand for, or receipt of, ransom;
- any of various federal offenses relating to child pornography;
- a federal racketeering offense;
- a federal gambling offense (including the transmission of wagering information in commerce if the offense is a second or subsequent offense) which is punishable by imprisonment of at least a year;
- a federal offense relating to the prostitution business;
- a federal offense relating to peonage, slavery, involuntary servitude, or trafficking in persons;
- any of various offenses relating to espionage, protecting undercover agents, classified information, sabotage, or treason;
- fraud, deceit, or federal tax evasion, if the offense involves more than $10,000;
- alien smuggling, other than a first offense involving the alien’s spouse, child, or parent;
- illegal entry or reentry of an alien previously deported on account of committing an aggravated felony;
- an offense relating to falsely making, forging, counterfeiting, mutilating, or altering a passport or immigration document if
- the term of imprisonment is at least a year and (2) the offense is not a first offense relating to the alien’s spouse, parent, or child;
- failure to appear for service of a sentence, if the underlying offense is punishable by imprisonment of at least five years;
- an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles with altered identification numbers, for which the term of imprisonment is at least one year;
- an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
- an offense relating to a failure to appear before a court pursuant to
- a court order to answer to or dispose of a charge of a felony for which a sentence of two years’ imprisonment or more may be imposed; and
- an attempt or conspiracy to commit one of the foregoing offenses.
Note: Unless otherwise specified, an aggravated felony includes both state and federal convictions, as well as foreign convictions for which the term of imprisonment was completed less than 15 years earlier.
Crimes Affecting Finding of Good Moral Character:
Being a person of good moral character appears to always have been a statutory requirement for naturalization, and good moral character now also bears on the eligibility for various forms of immigration relief. Prior to 1952, the effect of criminal conduct upon findings of good moral character was determined solely by case law and administrative practice. Following the enactment of the INA, certain criminal activities were statutorily designated as barring a finding of good moral character.
The list of activities in the INA that prohibiting a finding of good moral character is not exclusive, and engaging in illegal or amoral activity that is not specifically designated by the INA may therefore still be considered when determining character. While most activities listed in the INA as barring a finding of good moral character directly relates to illegal behavior, some simply describe amoral behavior. INA § 101(f), states that an alien is barred from being found to have good moral character if, during the period for which character is required to be established, the alien:
- commits certain acts related to prostitution or another commercialized vice;
- knowingly encourages, induces, assists, abets, or aids any other alien to enter or to try to enter the United States in violation of law, except in limited circumstances;
- commits a crime of moral turpitude, unless the alien committed only one crime and either
- the crime was committed while the alien was a minor and the crime (as well as the alien’s release from any imprisonment for the crime) occurred at least five years prior to the pertinent application or
- the maximum possible penalty for the crime did not exceed one year’s imprisonment and the sentence imposed did not exceed six months;
- violates a federal, state, or foreign law or regulation relating to a controlled substance, other than a single offense of possessing 30 grams or less of marijuana;
- commits two or more offenses for which the aggregate sentence imposed was at least five years;
- gives false information in attempting to receive a benefit under the INA;
- has an income principally derived from illegal gambling activities;
- commits at least two gambling offenses for which the alien is convicted;
- is in criminal confinement for at least 180 days; or
- has at any time been convicted of an aggravated felony.
Tan went in to see an immigration attorney last week wanting to apply for naturalization. His new employer wants him to start traveling internationally for the company and wants him to get an American passport to help facilitate the travel. Tan is not sure what to do because he got caught in a sting operation about 6 years ago. Tan was a gun collector and got caught buying a gun that had been modified so that it was fully automatic and qualified as a “machine gun” under federal firearms law, which is illegal. As it turns out the ATF was after a big fish in the illegal arms game. Tan agreed to assist in their investigation and broker the gun he had bought to the target. Everything worked out well and the ATF successfully took the target off the streets. The ATF provided testimony on Tan’s behalf before the trial judge, and the judge was very lenient, but Tan still has a weapons violation on his record. Can or should he apply for naturalization?
No. Since he has a federal weapons violation he is considered to be an aggravated felon. As an aggravated felon he would be barred from naturalizing and would be deportable. Because he would be considered an aggravated felon he may not even qualify for a waiver of the deportability. Tan has to do something to try to remove the conviction from his record before he can go forward with
Immigration Consequences of Criminal Activity
The potential immigration consequences of criminal activity include the following:
- Deportation: You may be removed from the US, no matter what your immigration status (permanent residence (a green card), a student visa, a temporary worker visa, or asylum or refugee status). Deportability means the same thing to nonimmigrants and residents, yet very different consequences may ultimately arise from the same criminal conduct. Your status as a permanent resident or nonimmigrant will determine whether you are eligible for a waiver or cancellation of removal.
- Inadmissibility: You may face a lifetime bar to adjust status to permanent residence or to even return to the US if you depart. Inadmissibility can apply in several contexts. It makes a foreign national who is abroad ineligible to receive a visa from a US Embassy, or that same foreign national cannot be admitted at a US port of entry even if they already have a visa, or a nonimmigrant foreign national already in the US is ineligible to adjust to permanent resident status. Inadmissibility also applies to lawful permanent residents.
- Mandatory detention: Certain convictions will result in detention without the possibility of bond (bail) during the removal process, including the years that may be required for an appeal.
- Denial of naturalization: Even if you are not deportable or inadmissible, you may be denied naturalization to US citizenship for 3 to 5 years or more.
How to avoid these consequences?
It is very important that you avoid any criminal activity, but it is especially important that you are not involved in any of the specifically listed activities while you are either inside or outside the United States, to avoid the serious immigration consequences of criminal activity. This is especially true if your long term goals include Permanent Resident status and/or Citizenship in the United States. Listed below are some common sense measures you can take to protect your status and your long term future.
- Do not drink and drive. While this may not be as serious in your home country, it is taken very seriously in the U.S. If you plan to drink alcohol while you are out, arrange to either have a designated driver or to take a taxi.
- Do not use illegal drugs! Being arrested with even a small quantity of marijuana can make you deportable.
- Do not lie or misrepresent your actions on immigration applications or to a Department of Homeland Security (DHS) employee.
- If you have concerns regarding something that you have done, then talk with an immigration attorney before you are interviewed or complete an application
- Do not assume that they won’t find out. Since September 11, 2001 there is a greater level of cooperation among government agencies.
- If you are arrested, you do have the right to an attorney and anything that you say can and will be used against you.
- Make sure that you have a criminal attorney who is aware that there may be immigration consequences to any plea bargain or guilty plea and who works with an immigration attorney.
- Remember, it is your responsibility to know the law and avoid committing crimes.
The immigration consequences of criminal activity, beyond the sentence you may receive in criminal court, can be very severe. Commission of a single offense may make a foreign national inadmissible and/or deportable on multiple grounds. The article gives you only a brief overview of the major categories of criminal offenses that are currently found in key portions of the Immigration and Nationality Act. To determine what the potential immigration consequences of criminal activity are, for nonimmigrant foreign nationals and permanent residents who have committed crimes, it is critical to understand the major classes of offenses as they are characterized under immigration law.
The passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996 made the immigration consequences of criminal activity far more extensive and severe than at any time in US history.
These acts radically redefined long-standing concepts at the intersection of criminal and immigration law, including what constitutes a “conviction” for immigration purposes. They also greatly expanded the number and types of crimes that can serve as grounds for deportation or removal from the United States, or ineligibility for admission. These laws have also effectively restricted judicial discretion by Immigration Judges and the courts alike, available forms of relief for many, and the judicial review (appeal) process, making immigration consequences of criminal convictions very severe.
Contact VisaPro if you have any questions regarding visas, or need help in filing with the USCIS or Consulates. Our experienced attorneys will be happy to assist you.
We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.