La semana pasada hablé sobre la crisis humanitaria para los refugiados afganos, así que hoy quiero abordar la crisis…
How to Keep Your Criminal Problems From Affecting Your Immigration Goals
Crime & Immigration
One poor decision can threaten your immigration status. In this article, we’ll discuss poor decisions you might make that can keep you from your immigration goals.
Some people call it crimmigration – that’s when crime and immigration law meet. Many of the people we have consultations with have questions about this. Whether you’re trying to get a visa, green card, or become a citizen – if you have a criminal issue here in the US or in your home country, it may impact your ability to gain a legal status or keep you from entering and staying in the US.
At Andres Mejer Law, we often get questions similar to the ones listed below:
- How long ago it must have happened to not count against you?
- Does it change things if you were a juvenile when the crime was committed?
- Does USCIS still need to know if you were arrested but never convicted?
- If you do have something in your background, is there anything you can do about it?
Felony, misdemeanor, conviction, and arrest – we’ll explain what it all means for your immigration journey.
Admissibility and Entry
When you arrive in the US, you will only be allowed to enter if Customs and Border Patrol deems you “admissible.” That means that you don’t have anything in your background (like a crime) that would keep you from entering.
Once you are in the US, if you want to obtain legal status – moving from a visa to a green card to citizenship (and even for DACA holders) – you must prove that you are a person of “good moral character.”Having good moral character generally means that you haven’t committed (or been charged with, in some instances) a crime.
- I think it might help to explain briefly about the legal system in the United States.
How is the US legal system different?
The legal system in the United States may be different than you experienced in your home country.
The system is divided into two areas of law – civil and criminal. Note that immigration court is something entirely different, but it is considered a civil proceeding and not a criminal one.
You might be part of the civil legal system when you have a private dispute or disagreement between two (or more) people. Here are some examples of civil issues:
- Contract dispute – you paid someone money and they didn’t deliver the goods they said they would.
- Family law issues – you are getting divorced or are arguing over child custody.
- Wills, estate, and trusts – this involves property and belongings.
- Personal injury – where someone is in a car accident, is still a civil issue that is handled in civil court.
The question now is: do civil issues count against you as an immigrant?
For the most part, civil issues won’t keep you from obtaining a legal status. An exception would be if you owe child support, since that could keep you from getting the legal status you want.
Now let’s move to learning more about criminal court. This one is important because, even if you haven’t been convicted, having a criminal issue may keep you from getting a legal status or being admissible to the US.
Here are a few important things to know:
- Usually, if you can be imprisoned for an offense, it is considered a crime.
- The United States Constitution has protections for people charged with a crime. Immigrants are equally protected just like U.S. citizens.
- You have a right to a speedy trial, a right to confront your accuser, and a right to an attorney.
- You are also supposed to be considered innocent until proven guilty. Unfortunately, the public opinion doesn’t always follow that sentiment.
If you have a criminal history that may affect your immigration process, we recommend that you speak to a local criminal attorney. Our attorney at Andres Mejer Law is licensed in New Jersey and New York. Immigration attorneys can handle cases throughout the US, but criminal cases are best handled (if you’re an immigrant) with both a criminal and immigration attorney.
What happens when you go to criminal court?
When you go to criminal court you will be in front of a Judge. When you are charged with a crime, there are certain elements that the prosecutor must prove for you to be found guilty.
Even if you are not a citizen, you are entitled to an attorney in most criminal courts (unless you’re only going to be fined). This attorney is called the defense attorney. If you can’t afford an attorney, one should be appointed for you.
The defense attorney will only be able to help you with your criminal case, not your immigration issues. Many criminal attorneys don’t understand how criminal convictions could impact your immigration status. Be sure, if you are in criminal court, that you have your criminal attorney consult with an immigration attorney. Anything that happens in criminal court can have a lasting impact on your immigration status.
What criminal offenses should you take note of?
Criminal offenses include things like shoplifting, assault, DUI, and sometimes even a traffic ticket. Having a criminal history doesn’t mean you cannot become a US citizen, but it does mean it might be a little harder for you than someone without the same history.
With almost every application – visa application, green card application, and naturalization – you must say if you have been arrested, charged or convicted of a crime. You also must be a person of “good moral character.”
Some crimes that might be used against you to say you are not a person of “good moral character. These include:
- Fraud – bank, insurance, mail, social security, etc.
- Drugs – using or distributing controlled substances
- Failure to pay taxes
- Domestic violence
- Multiple DUIs
Crimes Involving Moral Turpitude
It’s also important to talk about “crimes involving moral turpitude” or CIMT. Moral turpitude involves either dishonesty or conduct that would shock a reasonable person.
As we’ve said in the past ever since the Trump administration took to office in 2016, immigration to the US has been shaken up. Many policies have been put into place that have made it harder for people to immigrate. And, as often as possible, if a violent crime is committed the first thing you hear from certain politicians and media sources is that the person committing the crime was an immigrant.
It may seem like if you are an immigrant, you are held to a higher standard than a US citizen. And until you are a US citizen, that is mostly true. That’s why you’ll often hear us advise you to become a US citizen as soon as you possibly can in your immigration journey.
How Crimes Impact Your Immigration Goals
When talking about most criminal courts in the United States, you will hear the terms felony, misdemeanor, and infractions. Most of the time a felony has a sentence of more than one year. All of the following are felonies under criminal law:
- Sale of illegal drugs;
- Grand theft; and
A misdemeanor is more serious than an infraction, but less serious than a felony. It usually has a jail sentence of less than one year and might include community service and a fine as part of your punishment. Disorderly conduct is an example of a misdemeanor.
Infractions are the least serious crimes and usually only have fines with no jail time. Even these less serious crimes, like infractions, might keep you from getting a legal status depending on what type of crime it is.
For example, in New York, most shoplifting is an infraction. However, because it is a “crime of moral turpitude,” if you have a shoplifting charge on your record, you may be deportable/inadmissible and unable to get your citizenship for a time.
With both felonies and misdemeanors there may be additional classifications or degrees like simple/grand or Class A, B, C, etc. Again, it is very important to talk to an immigration attorney in your local area to understand how they are handled there.
The reason we mentioned shoplifting, traffic tickets, and drugs before is because they are very common offenses that we find our immigration clients are worried about. The most common crimes that get people deported are:
- entering or re-entering the US illegally,
- drug crimes,
- motor vehicle traffic offenses like DUI’s, and
- Assault, particularly domestic violence.
If you are deported because of a crime, that will impact you being able to get a green card, citizenship and in most cases, even enter the US as a visitor. If you, as an immigrant, are charged and convicted of a felony – you will most likely be deported from the US.
If you, as an immigrant, are charged and convicted of a misdemeanor – the possible sentence (not the actual sentence) will decide if you are going to be subject to deportation. If you could be sentenced to jail time of a year or more, you will likely be subject to deportation.
What about if you commit more than one misdemeanor?
Remember how you must prove that you have good moral character? It is very difficult to convince USCIS that you have good moral character if you have been charged with and convicted of more than one crime – even if they are only misdemeanors.
No one is charged with a “crime of moral turpitude.” That is a general phrase under immigration law which applies to a variety of different crimes. However, if you are convicted of CIMT you can become both deportable and inadmissible.
Unfortunately, even though immigration law talks about crimes of moral turpitude, there is no list that you can find to know whether an offense is a CIMT or not. The only thing we, as attorneys and advisors, can do is to look at the Board of Immigration Appeals (BIA) decisions to determine if the crime you have on your record is one that has previously been considered a CIMT.
Sometimes, we have clients who have shoplifting charges. You might think they are no big deal. Maybe you were with friends and as a joke you slipped a $5 bracelet into your pocket at Claire’s. Although it’s only $5, USCIS sees it as an intentional and immoral act. If you are convicted of two crimes of moral turpitude, and are not a US Citizen, you become deportable and inadmissible under immigration law.
Types of Crimes
There are three types of crimes that will make you inadmissible:
- Aggravated felonies. There are 43 crimes listed, including murder, drug trafficking, filing a false tax return, and sexual abuse of a minor.
- Crimes of moral turpitude.
- Crimes involving illegal drugs.
How does USCIS find out about your criminal history?
Everyone who applies for a legal status, visa, or even work authorization will have a biometrics appointment where they take your picture and fingerprints and they run a background search.
This will show them criminal issues here in the US and sometimes even in your home country or other countries you may have lived in. Juvenile charges and even expunged charges can come up when immigration searches, but not when your attorney looks for it so it is very important you be honest with your attorney about your past.
Another way they can learn about your past is if you tell them on your application or at an interview. You might be thinking, why would I tell them? Maybe something happened to the records in your country and you don’t think, even if they do a background check, they will find out.
Don’t rely on that hope. When you apply for an immigration benefit, you must state if you have ever been arrested for, charged with or convicted of a crime. You also attest (that means a formal promise) that everything in your application is true and correct.
If you knowingly didn’t include information about a crime, and they ever find out, you can be subject to losing your green card or citizenship, and being deported.
It is always better to be 100% upfront and honest when applying with USCIS. We have heard many a story in the immigration field where someone wasn’t completely honest and their spouse, relative, or friend got angry and reported them to immigration. In addition, you may think that something will disqualify you when it really won’t. But lying about it will.
Before applying for any immigration benefit, if you have ever been arrested for anything be sure to meet with a qualified immigration attorney to avoid any confusion.
What if the crime was committed a long time ago?
You might be wondering if there is a “statute of limitations” where crimes no longer count against you. Meaning if you committed a crime a long time ago, is it really going to affect you now?
That depends. In the US, the “statute of limitations” means that if you weren’t charged with a crime within a certain time period, you cannot be charged with it later.
As an example, say you stole a candy bar when you were 20. You are now 40. If your jurisdiction has a 3-year statute of limitations for shoplifting, they can’t come and charge you for having stolen that candy bar 20 years ago. However, note how I said it depends.
If you’re applying for a visa, you must include information about all crimes in your past. All the CIMT will keep you from being allowed into the country. Even some relatively minor crimes can, unless you were a juvenile when you committed them, and it was more than 5 years ago.
If you’re applying for a green card you must disclose all criminal issues on your application.
If you’re applying for citizenship you must include any arrest, charges or convictions within 5 years of your application. Unless you were convicted of an aggravated felony or genocide and torture – then you are permanently barred from becoming a US citizen.
Our recommendation is that for every crime you were ever cited, arrested for, charged with, convicted of and even if it was dismissed, you should note that on your application. Always check with an immigration attorney before filing anything if you have ever been arrested for a crime.
What can you do if you have a criminal history?
Even if you have one of an arrest, charge or conviction, you may be eligible for a waiver to obtain legal forgiveness.
There are several waivers available depending on whether you are seeking a Green Card or US citizenship. Often, you’ll need to show some extreme level of harm will come to your qualifying relative if the relief you request isn’t granted.
In addition, there’s forgiveness for certain crimes when you submit a VAWA or U-visa. You can also have an attorney file to revoke and revise your sentence which may change how the crime affects your immigration journey. Lastly, you may request a pardon from the Governor of your state.
What about if you are deported because of a crime?
If you are deported because of a criminal conviction you must remain outside the US for 5 or 10 years. After a second deportation, you must remain outside the US for 20 years.
You can ask for permission to enter sooner, through another waiver. Every case is unique, but the more things you need to ask forgiveness for, the harder your case becomes. For example, if you are deported due to a crime, you may need a waiver for the crime, the order of Deportation, and being in the US without permission for over 180 days.
Do you need to include any paperwork about your arrests/convictions with your application for a Green Card or US citizenship?
If you have it, we recommend that you provide it. But again, before including anything about any arrests or crimes make sure to discuss it with a qualified immigration attorney.
On most applications you are going to have to say when the incident happened, what happened, where, and the final disposition. You will also be requested to provide a disposition (that means what the final result was) of the incident and possible police reports associated with the incident.
As part of our process for our clients, we run a background check. This helps all of us know what’s in your criminal history before you meet with USCIS. We do this so there won’t be any unpleasant surprises when dealing with your immigration journey. We can determine together the best way to handle your background situation and be sure that we help you achieve the goals you have regarding your legal status.
Andres Mejer Law has successfully helped people with their criminal convictions so that they were able to become green card holders and US citizens. Call our office to schedule a consultation today.